Canada v. Charbonneau, 2003 FC 1270

Date: 20021030

Docket: T-2090-91

Citation: 2003 FC 1270

BETWEEN:

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                          Plaintiff

                                                                              - and -

                                                             LEON CHARBONNEAU

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

von FINCKENSTEIN J:

[1]                 This is an appeal, on behalf of the plaintiff, from an order of Prothonotary Tabib dated October 7, 2003 dismissing the action and counterclaim in this matter by reason of delay.

[2]                 The standard applicable on appeals from Prothonotaries is set out in Canada v. Aqua-Gem Investments, [1993] 2 F.C. 425 and to the test applicable when dismissing an action for delay under Rule 382(2)(a) of the Federal Court Rules, 1998, as set out in Baroud v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 91.

[3]                 It is clear that by virtue of Aqua-Gem, supra I am to exercise the discretion vested in me de novo because the Prothonotary's decision was vital to the outcome of the case.

[4]                 To succeed the plaintiff must meet the test set out in Baroud, supra where Justice Hugessen wrote:

In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions:

(1)           what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred? and

(2)           what steps is the plaintiff now proposing to move the matter forward?

The two questions are clearly interrelated in that if there is a good excuse for the case not having progressed more quickly, the Court is not likely to be very exigent in requiring an action plan from the plaintiff. On the other hand, if no good reason is advanced to justify the delay, the plaintiff should be prepared to demonstrate that he recognizes that he has a responsibility to the Court to move his action along. Mere declarations of good intent and of the desire to proceed are clearly not enough. Likewise, the fact that the defendant may have been lax and may not have fulfilled all of his procedural obligations is largely irrelevant; primary responsibility for the carriage of a case normally rests with a plaintiff and at a status review the Court will look to him for explanations.

[5]                 The chronology of events in this case is as follows:

1 -         the plaintiff filed a statement of claim against the defendant on August 12, 1991, to recover some advance grain payments;

2 -         the plaintiff made application for and was granted default judgment against the defendant in June of 1998;

3 -        in November of 2001, the defendant brought a motion for an order setting aside the default judgment on the basis that new evidence had surfaced. The order setting aside the default judgment was granted by Mr. Justice Campbell on December 17, 2001;

4 -        the defendant filed a statement of defence on January 4, 2002, as well as a counterclaim as against the plaintiff;

5 -        the plaintiff served and filed its reply and defence to counterclaim on February 11, 2002;

6 -        a notice of status review was issued on June 18, 2003, some 15 months later. No court documents had been filed between February 11, 2002 and June 18, 2003.

[6]                 In response to the notice of status review filed on July 17, 2003 the plaintiff offered no reason for the delay, it merely stated that it had on May10, 2002 requested certain documents and had yet to receive the documents. It further set out a detailed timetable for the remaining steps.

[7]                 In response to the notice of status review the defendant stated that due to an oversight documents requested by the plaintiff were not delivered until July 18^th, 2003. These documents were sent as a result of a reminder from plaintiff's counsel dated July 17, 2003, i.e. one month after the date of the notice of status review.

[8]                 Prothonotary Tabib in her order or October 7, 2003 observed:

Both the main action and the counterclaim have been at a complete standstill since May 2002. Only the Defendant has even attempted to explain this delay, by invoking an "oversight" on the part of the Defendant in sending to the Plaintiff a copy of documents requested by it in May 2002. Clearly, the oversight concerned not only the provision of the requested documents but the very existence of this action on both parts, demonstrating a clear lack of interest on the part of any party in moving this matter forward.

[9]                 I have to agree. In this case neither party has met the first leg of the test in Baroud, supra. This case did not move between May 2002 and July 2003. No explanation for the delay is given other than waiting for documents (plaintiff) and an oversight (defendant). For over one year the plaintiff never inquired about the missing documents that the defendant was to furnish; and the defendants, due to oversight, never furnished them nor made any effort to advance this case. No justification whatever was given to justify the delay. Consequently I see no reason to overturn the decision of Prothonotary Tabib.

[10]            Accordingly this appeal is denied.

"K. von Finckenstein"

                                                                                                       JUDGE                        

Ottawa, Ontario

October 30, 2003

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                                     T-2090-91

STYLE OF CAUSE:                                                     HER MAJESTY THE QUEEN

- and -

LEON CHARBONNEAU

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                                 von FINCKENSTEIN J.

DATED:                                                                                        OCTOBER 30, 2003

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: