Marshall v. Canada, 2004 FC 754

Date: 20040521

Docket: T-1029-92

Citation: 2004 FC 754

Ottawa, Ontario this 21^st day of May 2004

Present:           The Honourable Madam Justice Heneghan                                    

BETWEEN:

                                                       JOSEPHINE MARSHALL

                                                                                                                                               Plaintiff

                                                                           and

                                                    HER MAJESTY THE QUEEN,

the PUBLIC SERVICE ALLIANCE OF CANADA,

and the UNION OF PUBLIC SERVICE COMMISSION EMPLOYEES

                                                                                                                                         Defendants

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                This is an appeal from the Order of Prothonotary Aronovitch made on November 19, 2003, following reconsideration of an Order made on November 3, 2003.

BACKGROUND FACTS

[2]                On May 7, 1992, Ms. Josephine Marshall (the "Plaintiff") commenced this action, as a self-represented litigant, against Her Majesty the Queen, the Public Service of Canada and the Union of Public Service Commission Employees (the "Defendants"), seeking declaratory relief and damages relative to her employment as an indeterminate employee of the Public Service of Canada at various times between 1972 and 1986.

[3]                A series of motions were undertaken after 1992 but this matter did not proceed to trial or other resolution. By Order dated May 13, 1999, the proceeding was designated a specially managed proceeding pursuant to the Federal Court Rules, 1998, SOR/98-106 (the "Rules"). By further Order dated June 9, 1999, Justice Blais and Prothonotary Aronovitch were appointed to case manage the action. As a Case Management Judge, Prothonotary Aronovitch issued an Order and endorsement on August 20, 2003, directing the Plaintiff to appoint a solicitor of record on or before September 26, 2003. The Order further provided that such solicitor was to bring such further motions that the Plaintiff may advise, by October 24, 2003 failing which the action "shall stand dismissed".

[4]                On September 2, 2003, the Plaintiff filed a notice of motion to be dealt with in writing, pursuant to the Rules. She sought to appeal from the above-mentioned Order of Prothonotary Aronovitch, as well as a stay of the Order and an Order appointing one or more persons to represent her. The motion was served on the Defendants who served and filed responding submissions.

[5]                The Prothonotary dismissed the motion by an Order dated September 29, 2003. That Order provided that, further to the Order of August 20, 2003, the Plaintiff was precluded from bringing any motions until she had appointed a solicitor of record.

[6]                The Plaintiff sent a letter to the Court on October 2, 2003 requesting an extension to November 4, 2003, to appoint a solicitor as required by the Order of August 20, 2003. By written directions issued by the Court on October 2, 2003, the request was refused.

[7]                The Index of Recorded Entries and the Court file on October 8, 2003, show that Mr. Doyle, as counsel for the Plaintiff, wrote to the Registry of the Court, requesting an extension of the deadline of October 24, 2003 for the filing of further motions and for time to review the file. Copies of this letter were sent to counsel for the Defendants.

[8]                Written directions were issued by the Court on October 10, 2003 and provided as follows:

I have reviewed Mr. Doyle's letter dated October 8, 2003.

It will be sufficient for the purposes of my order that Mr. Doyle serve and file detailed notices of motion, with affidavits attached, by no later than October 24, 2003, without the requirement to serve and file a full motion record.

If a further extension is required, it must be sought by way of formal motion, to be served and filed by no later than October 16, 2003.

[9]                On October 16, 2003, counsel for the Plaintiff filed a notice of motion in writing, together with a motion record, seeking an Order extending the time-lines established in the Court's Order of August 20, 2003. The Defendants responded, opposing the motion. By Order dated November 3, 2003, Prothonotary Aronovitch, having considered the matter without personal appearance dismissed the motion, with a brief endorsement. The Order provided that the "action stands dismissed for delay and want of prosecution".

[10]            On November 4, 2003, Mr. Doyle, counsel for the Plaintiff, wrote a letter to the Court. That letter provides as follows:

We note that your November 3, 2003 Order denying our motion for an extension also dismisses Ms. Marshall's action. Respectfully, we had understood that this was not to be a possible outcome of your decision.

On October 23, 2003, acting on instructions from Mr. MacLean, I telephoned your office to determine whether we needed to proceed with any possible pre-trial motions under your August 20, 2003 Order, in light of our motion to extend. In response to my inquiry, Mr. Labelle of your office informed me that you had stated we did not need to comply with the October 24, 2003 deadline for the filing of all pre-trial motions to avoid having this action dismissed. I was told that because we had complied with the October 16, 2003 deadline for filing an Application for an Extension, and because the decision would not be rendered before October 24, 2003, we would be granted a short period of time after your decision, regardless of the outcome, to attempt to complete any necessary pre-trial motions.

I have attached our letter of October 23, 2003 where we confirmed our understanding of the above to Mr. Labelle.

Based on the above, we respectfully ask that your Order be amended to allow for the short period of time to make the necessary pre-trial motions previously discussed.

Mr. MacLean is an associate of Mr. Doyle.

[11]            The letter of October 23, 2003, provides as follows:

Thank you for your phone call yesterday informing me that the documents have reached you and have been put before the Prothonotary.

Also, thank you for confirming with the Prothonotary that, because we have complied with the October 16, 2003 deadline for filing a Motion for Extension, we did not need to comply with the October 24, 2003 deadline for the filing of all Pre-Trial Motions. I also appreciate your assurance that the Prothonotary would be allowing time for Pre-Trial motions in her decision on our Motion whether she extend [sic] the period for filing Pre-Trial motions by a small amount or by the sixty days we have requested.

I appreciate your continued attention to this matter.

This letter was not sent to Defendants prior to disposition of the motion that resulted in the Order of November 3, 2003.

[12]            On November 5, 2003, the Prothonotary issued oral directions directing Mr. Doyle to provide copies of his November 4, 2003 correspondence to the parties. Any submissions from the parties, that is the Defendants, were to be filed by noon on November 6, 2003. Mr. Doyle sent copies of his correspondence of November 4, 2003 to counsel for the Defendants, enclosing as well a copy of a letter that he had sent to the Registry of the Court on October 23, 2003. Counsel for the Defendants filed their submissions on November 6, 2003.

[13]            On November 6, 2003, the Prothonotary issued directions, directing the Plaintiff to file a motion for reconsideration of the Order of November 3, 2003, no later than November 12, 2003. Amended directions were issued on November 7, 2003 confirmed that the parties were to advise, by November 12, 2003 of their availability for the hearing of the motion by videoconference on either November 19 or 20, 2003. Further written directions issued by the Prothonotary on November 13, 2003 scheduled the hearing of the motion for November 19, 2003.

[14]            The motion was heard on that date and an Order was issued on November 19, 2003 in the following terms:

1.              The motion for reconsideration is granted as follows:

2.              By no later than November 24, 2003, the plaintiff shall serve and file its motion(s), as appropriate, in light of my order of August 20, 2003.

3.              My order of November 3, 2003 is hereby amended to give effect to the above.

4.              Costs of the motion are payable by the plaintiff, to each of the defendants, in any event of the cause.

[15]            The endorsement to the Order provides as follows:

I agree with the submissions of the defendants that the plaintiff's interpretation of my direction of October 10, 2003, as essentially amending the Court's order of August 20, 2003, is both erroneous and untenable in the circumstances.

As I understand it, the plaintiff relies principally on the assurances apparently given to counsel by Registry staff. It is fair to say in that regard, that counsel solicited advice and generally proceeded in a manner that is wholly inappropriate in the circumstances.

The Court speaks uniquely by way of order or direction. Neither issued in respect of the communications of counsel with the Registry. Counsel is remiss in the manner of the communication, in not providing notice to parties, in not providing formal and timely notice to the Court and in placing reliance on communications that can have no effect.

That said, if the Registry did offer the assurances that were sought to be confirmed, I am compelled to accede to the plaintiff's request, for had I been aware of the purported exchange with the Registry I would undoubtedly have taken it into account or directed accordingly, in the context of the motion. In that sense, and pursuant to Rule 397(b), I consider the exchange a matter "overlooked" in the issuance of the order.

While I will grant the motion, counsel is hereby cautioned in future to direct all communication to the Registrar, in writing, with notice to all parties, and with the explicit request that the correspondence be brought to my attention as case management prothonotary.

While the defendants have not sought costs, in the circumstances, and in the exercise of any discretion, costs of the motion will ordered to be paid by the plaintiff.

[16]            By notice of motion dated November 28, 2003, the Defendant Her Majesty the Queen appealed from the Order of November 19, 2003.

SUBMISSIONS

[17]            The Defendant, Her Majesty the Queen argues that the applicable standard of review here is the de novo standard, pursuant to Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), since the issue raised in this matter affects the final disposition of the case.

[18]            Then the Defendant submits that, in any event, the Prothonotary erred in the exercise of her discretion or in applying the law, by concluding that the telephone call and letter from the Plaintiff's counsel to the Registry on October 23, 2003 was a "matter" that was "overlooked", according to Rule 397(1)(b).

[19]            The Defendant also argues that the Prothonotary erred in making the Order of November 19, 2003 because in doing so, she ignored her conclusions on the evidence, that is that the Plaintiff had failed to comply with the time-lines set out in the Order of August 20, 2003 and move the action forward. The Defendant says that the Plaintiff adduced no new evidence that would justify a different conclusion by the Prothonotary and, in reversing her Order, the Prothonotary erred.

[20]            The Defendants Public Service Alliance of Canada and the Union of Public Service Commission Employees support the arguments of Her Majesty the Queen. As well, they argue the issue in the appeal transcends the usual test applicable to an appeal from a prothonotary because the power to reconsider an order is unique. These Defendants submit that the Prothonotary applied the wrong test in issuing her Order of November 19, 2003 and that the appeal should be allowed.

[21]            The Plaintiff, on the other hand, argues the Order should be accorded a high degree of deference since it was a discretionary order made in the course of case management. The Plaintiff here relies on Aqua-Gem, supra and the more recent decision of the Federal Court of Appeal in Sawridge Band v. Canada, [2002] 2 F.C. 346. The Plaintiff was merely looking for an extension of time and that is an essential aspect of the case management process.

[22]            Alternatively, the Plaintiff also argues that the Prothonotary properly determined that the October 23, 2003 correspondence from her lawyer to the Registry was a "matter" within the scope of Rule 397(1)(b) and in this regard, relies on Canada (Minister of Citizenship and Immigration) v. Dhaliwal-Williams (1996), 116 F.T.R. 29.

[23]            Finally, the Plaintiff says that if the Order is subject to review on a de novo basis, there is still no basis for reversing the Order since it is supported by the decision in Dhaliwal-Williams, supra.

ANALYSIS AND DISPOSITION

[24]            The first question to be dealt with on this appeal is the applicable standard of review. In my opinion, that standard is the de novo standard, on the basis of the decision of the Federal Court of Appeal in Aqua-Gem, supra, where the Court said as follows at page 454:

I am in agreement with counsel for the appellant that the proper standard of review of discretionary orders of prothonotaries in this Court should be the same as that which was laid down in Stoicevski for masters in Ontario. I am of the opinion that such orders ought to be disturbed on appeal only where it has been made to appear that

(a)             they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(b)            in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case.

In each of these classes of cases, the Motions Judge will not be bound by the opinion of the prothonotary; but will hear the matter de novo and exercise his or her own discretion.

[25]            The disposition of the underlying motion, that is reconsideration by the Prothonotary of the Order made on November 3, 2003, necessarily requires consideration of that Order. Its effect was to dismiss the Plaintiff's action. There can be nothing more "vital to the final issue of the case" than dismissal of an action. That being so, the next question is whether the Prothonotary committed a reviewable error either in the exercise of her discretion, her appreciation of the facts or in her application of the law.

[26]            The Plaintiff's motion that was before the Prothonotary on November 19, 2003 was based upon Rule 397(1)(b) which provides as follows:

[27]            The presence of the word "may" indicates that the exercise of judicial discretion is engaged when this Rule is invoked. The matter of deference to a discretionary decision of a prothonotary was recently discussed by the Federal Court of Appeal in Merck & Co. et al. v. Apotex Inc. (2003), 315 N.R. 175. At paragraph 19, Justice Décary, writing for the majority said as follows:

To avoid the confusion which we have seen from time to time arising from the wording used by MacGuigan J.A., I think it is appropriate to slightly reformulate the test for the standard of review. I will use the occasion to reverse the sequence of the propositions as originally set out, for the practical reason that a judge should logically determine first whether the questions are vital to the final issue: it is only when they are not that the judge effectively needs to engage in the process of determining whether the orders are clearly wrong. The test would now read:

Discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:

a)              the questions raised in the motion are vital to the final issue of the case, or

b)              the orders are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts.

[28]            Further, at paragraphs 40 and 41, he commented upon the approach to be taken upon review of a discretionary decision made by a prothonotary in the exercise of case management functions:

I also wish to speak to another argument raised by counsel for the respondent. Counsel invites the Court to apply the rule set out in Sawridge Band v. Canada, [2002] 2 F.C. 346 at 354 (F.C.A.), where Rothstein J.A. expressed the view that the Court should only interfere in decisions made by case management prothonotaries or judges "in the clearest case of misuse of judicial discretion" (see also Montana Band v. Canada, [2002] F.C.J. No. 1257, 2002 FCA 331; Apotex Inc. v. Merck & Co. et al, [2003] F.C.J. No. 1725, 2003 FCA 438).

This rule, of course, only applies where deference is owed; it does not apply where the discretion has to be exercised de novo, for example, where, as here, the question is vital to the final issue of the case or where the case management prothonotary or judge has made an error of principle (see Apotex, supra, para. 41). ...

[29]            Prothonotary Aronovitch was certainly acting in her capacity as a case management prothonotary when she made the Order of August 20, 2003. That Order is critical to the disposition of the present motion since the Plaintiff's non-compliance with it gave rise to the Order of November 3, 2003 which effectively dismissed the action.

[30]            The Order of August 20, 2003 was accompanied by a brief endorsement which provides as follows:

I will not repeat the history of the abeyances and delays in this action to which the record amply testifies. My Order of April 30, 2003, was granted after innumerable extensions and liberties, given to accommodate the plaintiff. Ms. Marshall is presently in contravention of that Order which calls for the action to be dismissed in the event of the plaintiff's further non-compliance.

By facsimile dated July 10, 2003, Ms. Marshall essentially shows cause why the action should not be dismissed. She attaches a letter from a doctor and says she is preparing a follow-up letter which "will address concerns" she has and which she believes "will be helpful in moving de [sic] case forward". To date, no such letter has been sent. The doctor's note is similar to ones received before. They are general and usually produced, after the fact.

Indeed, I am unable to assess or determine, on that basis, the extent or nature of Ms. Marshall's disability or to determine whether Ms. Marshall may be said to be under a legal disability within the meaning of Rules 115 or 121 of the Federal Court Rules, 1998. I can only conclude that she is unable to represent herself without assistance and without ongoing prejudice to the defendants, which cumulates with time.

Accordingly, I make the below Order in the exercise of my discretion as case management prothonotary, with a view to protecting the rights and interests of the parties and to ensure the just most expeditious determination of the action on the merits.

[31]            The Plaintiff, initially on her own behalf and later by counsel, sought an extension of the time limits established by the August 20, 2003 Order. A formal motion was filed on October 16, 2003, seeking an extension of time. That is the motion that was before the Prothonotary when she issued the Order on November 3, 2003, dismissing the action.

[32]            However, by that time and unknown to the Prothonotary, counsel for the Plaintiff had sent the letter of October 23, 2003 to the Registry, without notice to the other parties. That letter has been reproduced earlier in these reasons.

[33]            This letter was only brought to the attention of the Prothonotary on November 4, 2003 when counsel for the Plaintiff wrote another letter, after receipt of the Order dismissing the action.

[34]            This background to the motion for reconsideration shows that the underlying matter in issue was an extension of time. In my opinion, that is a matter fully within the mandate of a case management prothonotary.

[35]            The Defendants' main argument is that Rule 397(1)(b) addresses circumstances where a "matter" was overlooked by the Court, not by counsel. They argue that the letter of October 23, 2003 does not change the fact that the Plaintiff had failed to comply with the Order of August 20, 2003 and that the letter has no evidentiary value relative to the question of compliance.

[36]            I do not agree with these submissions in the circumstances of this case. Rule 397(1)(b) accords the Court the discretion to make a different decision when, in the opinion of the Court, a "matter that should have been dealt with has been overlooked or accidentally omitted". The letter of October 23, 2003, albeit an improper communication from counsel, is a matter that "should have been dealt with" by the Prothonotary in addressing the motion of October 16, 2003. It was not dealt with at that time because the Court was unaware of its existence.

[37]            This appeal is proceeding on a de novo standard and in my opinion, that letter is a "matter" that properly falls within Rule 397(1)(b). I see no error in the manner in which the Prothonotary considered this letter in making her Order of November 19, 2003.

[38]            The Defendants have raised a technical argument concerning the interpretation of "matter". I observe that the present motion arises relative to the Rules, not in relation to a statutory provision. The Rules are authorized by the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, section 46. They are not legislation, either primary or subordinate. In this regard, I refer to Rule 1 which provides as follows:

[39]            In the context of rules of procedure, the word "matter" is not subject to the same canons of construction that would apply in interpreting that word relative to a statute, for example, as if the interpretation of "matter" in section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, were in issue.

[40]            The basic principle of the Rules is set out in Rule 3, as follows:

This is a rule of interpretation; see Dawe v. Minister of National Revenue (Customs and Excise) (1994), 174 N.R. 1 (Fed. C.A.)

[41]            Recognizing the discretionary nature of Rule 397(1)(b) and guided by Rule 3, I conclude that the Prothonotary did not err in her appreciation of the facts, by proceeding on a wrong principle or in the exercise of her discretion, in making her Order of November 19, 2003. The strict interpretation of Rule 397(1)(b) that is urged by the Defendants is incompatible with securing the "just" disposition of the Plaintiff's action. Expediency and cost are two other factors which inform the application of the Rules, including Rule 397(1)(b). To allow the dismissal of this action in consequence of the improper and ill-considered actions of the Plaintiff, would be to risk placing the Court in disrepute.

[42]            In my opinion, the Prothonotary committed no reviewable error and the Order in question shows due respect for the institutional integrity of the Court in the exercise of its jurisdiction pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. In the present circumstances, the interests of justice must outweigh the interest of expediency, in reaching a conclusion to these unduly protracted proceedings, and the appeal will be dismissed.

[43]            However, in recognition of the fact that the Plaintiff alone has created the situation giving rise to the Order of November 3, 2003, the subsequent motion for reconsideration and this appeal, I exercise my discretion to award costs on this appeal to all the Defendants, in any event of the cause.

[44]            I conclude with a strong warning to the Plaintiff to insure that no similar delays or unauthorized communications with the Court occur in the future. In that regard, I wholly adopt and echo the warning given by the Prothonotary in her endorsement of November 19, 2003.

                                               ORDER

The appeal is dismissed with costs to all the Defendants, in any event of the cause.

                                                                                      "E. Heneghan"

                                                                                                   J.F.C.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1029-92

STYLE OF CAUSE: Josephine E. Marshall -v-

Her Majesty the Queen, The Public Service

Alliance of Canada, and the Union of Public

Service Commission Employees

PLACE OF HEARING:                                 Halifax, Nova Scotia and

Ottawa, Ontario

via video conference

DATE OF HEARING:                                   April 15, 2004

REASONS FOR ORDER

AND ORDER:          The Honourable Madam

Justice Heneghan

DATED:                     May 21, 2004

APPEARANCES:

Mr. K. A. MacLean                                        FOR PLAINTIFF

Mr. Martin Ward,

Ms. Elizabeth Hughes                                       FOR RESPONDENT

Her Majesty the Queen

Mr. D. Yazbeck                                                FOR RESPONDENT

The Public Service Alliance of

Canada and The Union of

Public Service Commission

Employees

SOLICITORS OF RECORD:

Boyne & Clarke

Halifax Nova Scotia                                           FOR PLAINTIFF

Morris Rosenberg

Deputy Attorney General of Canada                  FOR RESPONDENT,

Her Majesty the Queen

Mr. D. Yazbeck

Raven Allen Cameron Ballantyne Yazbeck LLP/s.r.l.      FOR RESPONDENT,

The Public Service Alliance of

Canada and the Union of Public

Service Commission Employees