Date: 20041129
Docket: T-762-03
Citation: 2004 FC 1674
BETWEEN:
AMANDA DAY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HARGRAVE P.
1. This judicial review proceeding, commenced 12 May 2003, is of a Canadian Human Rights Tribunal decision of 4 April 2003. The decision deals with, among other things, issues of sexual harassment while Ms Day was employed by the Department of National Defence in 1994 and 1995.
2. In October 2003 this proceeding was ordered to be specially-managed, as it was not proceeding in an orderly manner: specially Ms Day had ignored advice from counsel for the Attorney General of Canada that a proper defendant was Michael Hortie, Ms Day refusing to name that individual even though Mr Hortie's lawyer had offered to accept service; ignored request for better particulars from theCrown; failed to file affidavit material; and failed to respond to correspondence from counsel for the Attorney General. Case managers were appointed 19 November 2003.
3. Present proceeding is an interim status review initiated by an Order of 16 July 2004, the Applicant being unable or perhaps unwilling to move the matter to an orderly and a timely conclusion. Here I would note that events and lack of progress which occurred before case managers were ordered in the fall of 2003 and which resulted in unacceptable delay, are in many respects parallel to what has occurred during the past year. However it is only the events and lack of progress during the past year which are relevant on this Rule 385(2) interim status review.
RELEVANT BACKGROUND
4. Following the designation of case managers, a case management conference took place on 10 February 2004. At that time the Applicant received an extension of time until 20 February 2004 within which to serve and file a motion for extension of time to file Rule 306 affidavits, with a further case management conference to be arranged after the filing of the affidavits. The motion for the extension of time was not in proper form, but was accepted pursuant to Rule 72(2)(b), which provides for conditional acceptance of documents which are not in proper form.
5. The Applicant's motion for an extension of time was denied by an Order and by Reasons of 13 April 2004. At that point, there being no appeal, counsel for the Respondent advised the Applicant that the Respondent would not be filing affidavit material and that the Applicant needed to consider serving and filing a Rule 309 record. This, together with the choice of a proper defendant, were among the subjects discussed during a 18 May 2004 case management conference. Ms Day took the position that the selection of a proper defendant was not a problem with which she had to deal. The outcome of that case management conference was that the Applicant was required to serve and file her Rule 309 record within 20 days. However the case management conference came to a pre-mature end when the telephone connection with Ms Day was somehow terminated. The 20-day requirement for filing the Rule 309 record was put in a formal Order of 18 May 2004.
6. Counsel for the Respondent served and then filed, on 25 June 2004, a motion in writing seeking an interim status review. The Applicant did not respond. The interim status review was granted by Reasons and an Order of 16 July 2004. That Order provided for participation by the Respondent.
7. I now have the written representations of both the Applicant and the Respondent; have dealt with and allowed in, pursuant to Rule 380(2), an affidavit of David Houston sworn on behalf of the Crown on 10 August 2004. By Order of 26 October 2004 I provided for cross-examination on that affidavit and for the filing of further material by Ms Day. There was no such filing.
THE LAW
8. I now turn to the law bearing upon assessment of status review material, by which to decide the outcome of this interim status review, for if I am not satisfied that the proceeding should continue and here the onus is upon the Applicant, the proceeding may be dismissed for delay. This is a discretionary decision.
The Test in Baroud
9. The test to be applied by the Court in making a discretionary decision on status review is set out in Baroud v R (1998), 160 F.T.R. 91 (F.C.T.D.) by Hugessen J as follows:
| 4. 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?
5. The two questions are clearly inter-related 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
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| 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 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.
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There are many important points set out in this quotation from Baroud including recognition by the plaintiff that he or she has responsibility to move the action along, that mere declarations of good intention of desire to proceed are insufficient and that the main responsibility for the carriage and progress of a case rests with a plaintiff. In the result a court looks to the plaintiff, or in this instance to the Applicant, Ms Day, for explanations as to the delay. This is so even when a respondent has missed or decided not to take a step. Here counsel for the Respondent has advised that the Respondent will not be filling affidavits. This brings into play Rule 314, requiring a requisition for hearing "within ten days after service of the respondent's record or the expiration of time for doing so, whichever is earlier." see for example Netupsky v Canada, 2004 FCA 239.
10. At paragraph 15 of Manson Estate v Canada (MNR), [2003] 1 C.T.C. 13 (F.C.A.),
10.leave to appeal refused, [2002]SCCA No. 542 (QL), the Court of Appeal also added that:
| Where there are court orders or directions that have not been complied with by the time the notice of status review is issued, those outstanding matters should also be dealt with in the response to the notice of status review.
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The More Liberal Application of the Test
11. Madam Justice Snider took a more liberal approach in applying the Baroud test. She explained this approach in paragraph 12 of Precision Drilling International, B.V. v BBC Japan, 2004 FC 701 as follows:
| 12. Given the draconian effects of dismissing a claim for delay, I believe that it would be appropriate to focus on the overall interests of justice in the case and not to be overly concerned with minor omissions or procedural defects. The overarching concern should be whether the Plaintiffs recognize their responsibility to move this action along and are taking steps to do so. In my view, the Baroud questions are simply posed to address this concern and should not be applied in a manner that ignores this broader question. Thus, as I look at these two questions in the context of these particular facts, I would take a liberal approach to this analysis.
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12. Important in the approach of Madam Justice Snider is whether a plaintiff recognises her or his responsibility to move the proceeding along and is in fact taking steps to do so. In Precision Drilling the delay had been short and while the action had not moved forward in a professional manner, Madam Justice Snider accepted, as an excuse for lack of formal progress in the action, ongoing discussion and optimism that the matter would be resolved without further advancement of the litigation. I now turn to some more specific cases by way of examples.
13. Fabrikant v. Canada, [1999] FCJ No. 189 (QL), a 11 February 1999 decision of Mr Justice Lutfy, as he was then, in court file T-1783-94, involved status review of an action which alleged wrongful conduct by penitentiary officials. In Fabrikant the Court had provided ample notice, by way of directions, to the plaintiff as to the steps to be taken. That has its parallel in the present instance in directions and suggestions made during the case management process and by suggestions and accommodations offered and extended by counsel for the Respondent.
14. In Fabrikant (supra) a plaintiff's reasons for failing to move the action along included his current health, having suffered a heart attack during preceding months, and an inability to retain counsel. Mr Justice Lutfy held, in the light of the assistance which had been offered to Mr Fabrikant, that neither his current health condition nor his inability to retain counsel, by way of legal aid or otherwise, constituted a satisfactory explanation for the failure to move the action forward. The action was dismissed for delay.
15. Also of direct application is the case of Pascal v Canada (AG) (2002), 228 F.T.R. 210 (F.C.T.D.), where the excuse given by the applicant was that he was often busy with other personal matters and that to proceed he had to be in a "peaceful state of mind". In reaching a conclusion in Pacal the Court relied upon both Baroud (supra) and Grenier v Canada, [2001] N.R. Uned. 99, [2001] FCJ No. 147 (QL). I mention Grenier because there the Federal Court of Appeal pointed out that the merits of the proceeding at issue were not for consideration in the case of status review. In any event Mr Justice Pinard, in Pascal, held that general allegations, such as other personal matters and the need for a peaceful state of mind were general allegations insufficient to constitute the required justification for the delay. The proceeding was dismissed for delay.
16. I have already referred to Manson (supra) in connection with matters outstanding when a notice of status review was issued and that they must be dealt with in the response to the status review. However Manson is also on point for another aspect: the court pointed out, in dismissing the applicant's appeal following a dismissal for delay, that failure to comply with the directions and orders of the court were substantial factors in dismissal for delay and indeed, if those bringing the proceeding had complied with directions and orders in a timely manner, the proceeding would have been ready for trial months earlier. Instead, there being no material to justify the failures, the dismissal of the Manson action by the Trial Division stood.
17. In Rogers (c.o.b. Lairds Aircraft Support) v Canada, 2001 FCA 382, 2001 FCJ No. 1857, the Federal Court of Appeal, leading into a comment on Baroud (supra), referred to the further consideration of Baroud by the trial judge in Rogers. There Mr Justice Pinard had reconsidered a status review dismissal order, pointing out, as noted by the Court of Appeal, that the respondent had repeatedly brought the Federal Court Rules to the attention of Mr Rogers and had suggested he obtain assistance either from the Court or from legal counsel. Mr Justice Pinard observed, in part:
| 4. ...
a) The appellant has taken no positive steps to move the action forward beyond vague assurances that he would begin gathering documents, contacting witnesses and drafting settlement proposals, none of which have yet occurred.
b) The appellant has not proposed any concrete steps for future progression of the action beyond assertions that he is willing to proceed.
c) The Court should be doubtful of the appellant's allegations of impecuniosity, since, once dismissed, the appellant had resources sufficient to retain experienced counsel for the purposes of the dismissal proceedings.
d) The appellant's correspondence with the respondent has been vague and brief, and "do not constitute moving the matter forward."
e) Since the appellant has not offered a prima facie case as to why the dismissal order should be set aside, and has not offered any concrete steps for moving the matter forward, it cannot be said that the appellant meets the requirements of Rule 399 to set aside the Dismissal Order.
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The Court of Appeal emphasised the failure of the appellant to take any positive steps to move the matter forward. Much of this has a parallel in the present proceedings, for Ms Day has proposed no concrete steps, but has offered the bare assertion that she could file the required documents, without specifying them, within five weeks at the earliest.
18. In Ms Day's material there are clear suggestions that she is unable to afford professional legal assistance, which I accept, and that is the reason she acts for herself. That can, as pointed out by the Federal Court of Appeal in Grenier (supra), make delay more understandable. Yet in the present situation the Applicant has done little or nothing to help herself, including taking advantage of practical suggestions, Directions and Orders. I now turn to a summary of the representations of the Applicant and of the Crown, as set out in their written material.
WRITTEN REPRESENTATIONS FROM THE PARTIES
19. I paraphrase the reasons Applicant gives for the delay as follows:
1. lack of free time in the past year due to preparation for relocation of living accommodation and defending a eviction in B.C. Supreme Court;
2. complications arising suffering from Complex Post Traumatic Stress Disorder, having become worse by reason of a break-and-enter in about May 2004, and by reasons of the present Federal Court proceedings, to the extent that she believes that she is unable to read and understand court documents, has a verbal-processing deficit and has been given medical advice to reduce and avoid stress;
3. lack of success over the years, at securing assistance from Legal Aid, Workers Compensation Board or victim services; and
4. inability to access support in her community and family physician resulting in being prudent not to "over-function" which could lead to a relapse.
The best Ms Day can do, as to moving the matter along, is to advise that whatever documents are required of her, she might be able to file them, at the earliest, in five weeks, that suggestion being made 6 August 2004.
20. The Respondent takes the position that there are no acceptable reasons for the delay because:
1. before and after the proceedings became case-managed, both the Respondent and the Court had provided the Applicant with procedural explanations, reminders and accommodations for late filing;
2. the Applicant had not taken and still is not taking the lead in moving the case along as is her responsibility, referring to the following passage in Sebastian v Canada (Minister of Indian Affairs and Northern Development) (1996) 115 F.T.R. 268 (F.C.T.D.) at 274:
| [33] A decision to dismiss for want of prosecution ought not to be taken lightly. It is a very stern measure indeed to deprive a party of their day in Court. However, in any litigation a plaintiff has duties and a defendant has rights. A duty on the part of a plaintiff is to move the action forward at a proper pace; a defendant has a right to expect a trial of an action without undue delay, so that the defendant may not be prejudiced by being unable to put forward its best case and then, win or lose, certainty and an opportunity to get on with business within a reasonable time.
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The thrust of this passage is the duty on the part of a plaintiff to move litigation along and the right of a defendant to expect the trial without undue delay and thus the opportunity to get on with business in a reasonable time.
3. the excuses of her litigation related to her eviction and the lack of counsel for her human rights complaints did not stand up to factual scrutiny (after scrutiny as set out in the Affidavit of David Houston. According to Mr Houston, a lawyer who acts for Michael Hortie, his search in the Supreme Court registry of the Waterside Housing Co-operative proceeding against Amanda Day, seeking an eviction, involved only an appearance by Ms Day, who did not seem to have attended any court proceedings. Further, Mr Houston sets out the names of various counsel who have acted for her and assisted her up until about 10 January 2003.
4. the Court is equipped with Rules to deal with its proceedings in a just, expeditious and least expensive manner and should do so in order not to undermine the reputation and efficiency of the judicial system: see Federal Court Rule 3:
| These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
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Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
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and Multibond Inc. v Duracoat Powder Manufacturing Inc. (1999), 177 F.T.R. 226 (F.C.T.D.) at 229 where Madam Justice McGillis observes that:
| [10] The Rules have equipped the Court with various procedural tools to enable it to assume an active role in the management and supervision of cases with a view to ensuring that litigation proceeds in a timely and efficient manner.
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and
5. the Applicant failed to satisfied the onus of providing a definite, positive and concrete plan to move this proceeding along: see Importations Alimentaires Stella Inc. v National Cheese Co. (2000), 10 CPR (4th) 392 at 393, the Court of Appeal observing that there was an onus on an applicant to take concrete and positive steps to move the matter along.
21. While the Respondent goes on to submit that the Applicant has failed the two-prong test in Baroud that is an issue I must myself decide.
CONSIDERATION
22. As I have already observed the Applicant has had assistance in the form of many opportunities, suggestions and accommodations: if even some of those had been put into effect, Ms Day might have regained control of the case and moved it forward. By way of example, the reasons in this matter, by which interim status review was considered, contain the following passage:
| [9] The Applicant may have until close of Registry on 9 August, 2004, within which to serve and file written representations focussing on two issues: first, do the reasons why this judicial review application has not moved forward justify the delay; and second, the measures that the Applicant proposes by which to move the proceeding forward. As Mr. Justice Hugessen said in Baroud v. Canada (Attorney General) (1998) 160 F.T.R. 91 at 92, these two questions are interrelated:
The two questions are clearly inter-related 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 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.
From the point of view of the Applicant, the submission must explain why the case has not moved forward faster, with a view to justifying the delay and set out what steps the Applicant proposes to take to move the matter toward a hearing. It is not an opportunity to dwell on what may have occurred in the past other than that, as the Federal Court of Appeal pointed out in Rosen v. Her Majesty the Queen [2000] 2 C.T.C. 422, to touch upon the intention to take proceedings within prescribed time limits, whether there is an arguable case, the length of the delay and any prejudice caused by the delay, which may have bearing. I would add that the representations of a plaintiff or applicant, in response to a status review order, should be more than mere bland assurances: they should be as definite, positive and concrete as possible: see Importations Alimentaires Stella Inc. v. National Cheese Co. (2000) 273 N.R. 392 (F.C.A.) at 393.
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This is a clear and straightforward direction as to what ought to be contained in a response to a status review. Certainly the Applicant does refer to housing problems, to a medical condition and an alleged verbal processing deficit, but nothing else in her written submissions is relevant. Indeed, the Respondent, refers to the Affidavit of Mr Houston, which would not only indicate that her time had been rather minimally involved with concerns about her housing co-operative, a Supreme Court proceeding; but also the presence of past legal assistance; and self-diagnosis of her medical problems. Even without the submissions of the Respondent the evidence of the Plaintiff is weak: reasons for the delay are certainly not strong and steps proposed to move the proceeding along are vague. By Rule 382(2)(a) it is for a plaintiff or applicant to satisfy the Court that the proceeding should continue.
23. In the light of all of this I must consider whether the reasons justify or are persuasive in explaining why the proceeding has not moved forward. Here the Applicant fails to overcome a barrier set out in Fabrikant (supra) and in Pascal (supra). In Fabrikant serious health conditions and an inability to retain counsel were not satisfactory explanations for failing to move an action forward. In my view explanations of this sort should be considered on a case by case basis. In the present instance it is fair to say that the Applicant had other matters on her mind that were of higher priority: that is not, as set out in Pascal, an acceptable or satisfactory reason why the proceeding should continue.
24. Even taking a fairly liberal approach to Baroud and various related cases, justification for the delay is very weak. The delay, overall, has been substantial: little has happened since case management was initiated. While a lay litigant often tends to receive some concessions, this proceeding has been punctuated with reminders and correspondence from opposing counsel, which were ignored and by a failure to comply with the Rules and with Court-ordered and directed schedules. In summary, the Applicant has demonstrated a minimal amount of recognition of her responsibility to move the action
24.along and seems to completely lack the ability to carry through her proceeding in any sort of timely manner, or at all. Thus it is difficult to apply any sort of a liberal approach to Baroud (supra), as was done in Precision Drilling (supra).
CONCLUSION
25. Status review is not so much to bring a matter to an end, but rather should be looked upon, if at all possible, as a means to move a matter forward, if that is reasonably fair and possible in all of the circumstances. However against this concept, of allowing a plaintiff or an applicant a day in court so that they might obtain a remedy and closure, I must balance a right of the defendant to expect a trial or hearing without undue delay, so that the defendant or respondent is able to put forward a best case and then, regardless of the outcome, have certainty and the opportunity to carry on with normal business within a reasonable time, as set out in Sebastian (supra).
26. The reasons given by Ms Day, for justifying the delay and the insubstantial measure proposed to move the action along are insufficient either to meet generous interpretation of the requirements set out in Baroud (supra), or to in any way satisfy the Court that the action should continue, as set out in Rule 382(2)(a). The application for judicial review is dismissed for delay.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
29 November 2004
FEDERAL COURT
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