Date: 20030515
Docket: T-97-00
Neutral citation: 2003 FCT 612
BETWEEN:
LOUIS JAMES ZAZULA
Plaintiff
and
HER MAJESTY THE QUEEN,
CORRECTIONAL SERVICES OF CANADA,
DRUMHELLER INSTITUTION,
DR. RICHARD ROE
and JOHN DOE
Defendants
REASONS FOR ORDER
HARGRAVE P.
[1] The Defendant, the Crown, is successful on this motion to strike out the claim of the Plaintiff both by reason of failure to complete examinations for discovery as directed and as ordered and by reason of undue delay.
BACKGROUND
[2] By way of background, the Statement of Claim in this matter, seeking damages for a slip and fall injury of 23 January 1998 was issued 24 January 2000. The matter not having progressed satisfactorily case management was ordered, with case managers appointed 10 October 2001. Mr Zazula being scheduled for knee surgery in mid-October 2001, the first case management conference was held 11 January 2002. At that point, Mr Zazula did not know the likely extent of his recovery and did not have a written medical opinion. However, both sides confirmed that they would aim for exchange of documents by 29 March 2002.
[3] On 28 May 2002 I held a further case management conference and by letter of that date I directed that the parties aim for completion of examinations for discovery by the end of August 2002.
[4] Following a case management conference of 24 October 2002, the Plaintiff not having provided discovery of documents to the Defendants and examinations for discovery not having been held, I issued an Order on 29 October 2002 that the Plaintiff provide discovery documents by close of Registry on 2 December 2002, with examinations for discovery to be completed on or before 17 February 2003 and undertakings to be completed, on a best efforts basis, by 17 March 2003. The Plaintiff provided an unsworn affidavit of documents 27 November 2002 and copies of documents 16 January 2003. However, despite a request for discovery dates by counsel for the Defendants, the Crown, Correctional Services of Canada and the Drumheller Institution, examinations for discovery have yet to be held.
[5] The present motion was filed 24 March 2003. On 20 April 2003 I called a telephone case management conference in order to determine whether counsel for the Plaintiff was able to respond to the motion to strike out the Statement of Claim. It seemed that Mr Zazula has been in and out of jail from time to time and that as of 20 April 2003 he was under some form of house arrest. Plaintiff's counsel was hopeful that there might be examinations for discovery by mid-May 2003. As of the 12th of May the Plaintiff not only had failed to provide any examinations for discovery dates, but also had not sought any extension of the discovery dates set out in the Order of 29 October 2002.
[6] Mr Zazula, in an affidavit sworn 5 May 2003 sets out his financial difficulties, the loss of his driver's licence and that he was in custody from 2 May 2002 until 16 September 2002 when he was sentenced to a further 30 days' imprisonment, being released 6 October 2002. On 21 March 2003 he was convicted of a weapons charge and is to go to Court for sentencing 10 June 2003: in the meantime is under house arrest curfew. He sets out a hope that an application to Court might allow him to travel to Edmonton for examinations for discovery in May 2003.
CONSIDERATION
Breach of Order for Discovery
[7] Time requirements laid down by the Court, both pursuant to the Rules and by order, are not merely targets to be attempted. Such are to be observed, both because delay may cause prejudice and because litigation must come to a timely conclusion. This is not to say that time limits are absolutes, for the time is long past when a court will find a litigant should be denied a day in court merely on the basis of a mistake or an uncontrollable event resulting in missed deadlines. However, in this instance delays and missed deadlines have become all too common place. This sort of approach to litigation, by a plaintiff who has an obligation to move the case along to a conclusion in an orderly and timely manner, can constitute an abuse of process, as pointed out by Mr Justice Muldoon in Pioneer Grain Co. v. Far-Eastern Shipping Co. (FESCO) (2000), 181 F.T.R. 161 at pages 165 - 166:
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Surely to have initiated an action in Court, and then to ignore the Court's orders for the better management of the proceedings, is to abuse the Court's process. In civil proceedings in which the abusive party can be dealt with simply by dismissing that party's pleadings (by which such party is seeking the Court's aid) the Court is, according to its well known rules, amply justified in denying its aid to the abuser.
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In Pioneer Grain, there being no excuse for ignoring the Court's orders, Mr Justice Muldoon upheld an order dismissing the action for failure to produce documents.
[8] In the present instance the excuse of the Plaintiff is that he cannot determine the extent and effect of his injury, which occurred over five years ago, although he does not, at this time, produce evidence to this effect. The Plaintiff does say, in his affidavit, that his difficulty with the law and his financial situation have been such that he had been unable to move litigation along.
[9] Mr Justice Noël, as he then was, considered the case of an impecunious incarcerated person who, for those reasons, was unable to move along the legal proceeding in a timely way in Semenduev v. Canada, an unreported 17 January 1997 decision in file IMM-4727-96. Mr Justice Noël observed that incarceration and impecuniosity did not equal incapacity:
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Being incarcerated and impecunious does not result in one being legally incapacitated.
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[10] In Semenduev there had been a two-year delay. In the present instance, Mr Zazula's proceeding has not advanced noticeably in some three years. As set out in Semenduev difficulties with the law, resulting in incarceration and impecuniosity, while both unfortunate, do not provide Mr Zazula with excuse for failing to provide dates for examinations for discovery for over a year now and all the more so in the face of a Direction and an Order. By reason of breach of the 28 March 2003 Direction and 29 October 2002 Order the action is struck out.
Delay
[11] There is a further reason to strike out the action, that of substantial delay and want of a plan to move the matter forward to a conclusion. Here I would refer to Govit v. Doctor, [1997] 1 W.L.R. 640 (H.L.) and Arbuthnot Latham Bank Ltd. v. Trafalgar Holdings, [1998] 1 W.L.R. 1426 (C.A.). In Govit v. Doctor there had been a wholesale disregard for time limits and inexcusable delay by a Plaintiff who exhibited no real interest in pursuing the litigation. The House of Lords took the view that where there had been a disregard for time limits and no interest in proceeding in a timely manner an application to dismiss for want of prosecution need not be circumscribed by prejudice to the defendant, but might also be examined in the light of abuse of process and a prejudice to the due administration of justice.
[12] Arbuthnot Latham Bank traces the evolution of want of prosecution from Birkett v. James [1978] A.C. 297 (H.L.) through to Govit v. Doctor and then looked at delay from the point of view of civil procedure subject to case management:
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The gradual change to a managed system which is taking place does impose additional burdens upon the courts, involving the need for training and the introduction of the necessary technological infrastructure. It is therefore in the interests of the litigants as a whole, that the court's time is not unnecessarily absorbed in dealing with the satellite litigation which non-compliance with the timetables laid down in the rules creates. [Page 1436]
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Lord Justice Woolf, who later became Master of the Rolls, then went on to observe that:
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In Birkett v. James, [1978] A.C. 297 the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. From now on it is going to be a consideration of increasing significance. Litigants and their legal advisers, must therefore recognise that any delay which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice. (loc. cit.)
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The Court of Appeal in Arbuthnot Latham Bank was of the view that abuse of process constituted a separate ground for striking out an action, a ground not requiring the defendant to demonstrate prejudice. The Court of Appeal went on to criticized the use of the court for warehousing proceedings until it became convenient to proceed, a practice leading both to stale proceedings and to bringing case management by the Court into disrepute:
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Whereas hitherto it may have been arguable that for a party on its own initiative to, in effect, "warehouse" proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes. This new approach will not be applied retrospectively to delays which have already occurred but it will apply to future delay. [Ibid. p. 1437.]
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Pertinent here is the view of Lord Justice Woolf that the court exists to assist parties in resolving disputes but should not be used for other purposes.
[13] In the present instance I sympathize with the Plaintiff who has had health problems and has been incarcerated. However, there is no real plan put forward by the Plaintiff to bring this matter to a conclusion. I do not fault counsel for the Plaintiff, who has consistently put in effort and has made the best arguments possible on behalf of the Plaintiff. Because past promises by the Plaintiff, as to getting on with the case, have amounted to nothing, I give no weigh to the Plaintiff's indication that he may be able to proceed with discoveries in May of this year. Indeed we are well into the month without firm dates for examinations for discovery. I can only conclude that lack of a reasonable plan, to bring the action to a conclusion, is convincing evidence that the Plaintiff is interested in other matters and has no real interest in bringing this action to a timely conclusion. The action, in the absence of either progress or plan, constitutes an abuse. The lack of progress is unfair to the Defendants. It is disrespectful to taxpayers who must pay Court's bills. It is prejudicial to other litigants who are looking to the Court for a reasonably speedy resolution of their disputes. It places the Court, which is hard-pressed for resources by which to service its users, in a difficult position. The action is therefore also dismissed, for delay amounting to abuse.
[14] There will be one set of costs to the Crown both for the motion and as to the action as a whole.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
15 May 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-97-00
STYLE OF CAUSE: Louis James Zazula v. HMTQ et al.
REASONS FOR ORDER OF: Hargrave P.
DATED: 15 May 2003
WRITTEN REPRESENTATIONS BY:
R Douglas Vigen FOR APPLICANT
Tracy J King FOR DEFENDANT Her Majesty the Queen
SOLICITORS ON THE RECORD:
R Douglas Vigen FOR PLAINTIFF
Barrister & Solicitor
Edmonton, Alberta
Morris A Rosenberg FOR DEFENDANT Her Majesty
Deputy Attorney General of Canada the Queen
Department of Justice
Edmonton, Alberta
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