Date: 20000209
Docket: T-485-97
Ottawa, Ontario, this 9th day of February 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
JOSEPH PAUL AUGUSTE ANDRE PREVOST
Applicant
- and -
PUBLIC SERVICE COMMISSION ET AL.
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an appeal from the order of Mr. R. Lafrenière, Prothonotary, dismissing the applicant"s claim on status review. The Prothonotary was not satisfied with the explanation offered for the delay in moving this matter forward.
[2] The standard of review of decisions of a prothonotary by a judge was set out in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.), at page 463:
| ...discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| 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) they raise questions vital to the final issue of the case.
| Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo." Per MacGuigan J.A. |
[3] The question is whether the Prothonotary "has fallen into error" by applying the wrong principles. The principles to be applied on Status Review were set out by Hugessen J.in Baroud v.Canada [1998] F.C.J. 1729 (F.C.T.D.), (1998) 160 F.T.R. 91. The learned judge identified the factors to be addressed as the reasons for the delay and the applicant"s plan for moving the matter forward. The Prothonotary reviewed the history of the action, as well as the applicant"s reasons for moving the matter forward. He found that they did not justify the delay which had occurred. I have reviewed the file and I concur with the Prothonotary"s assessment. I do so as a matter of my own assessment and not as a matter of deference to the Prothonotary. As a result, there will be an order dismissing the application.
[4] At the opening of the argument, counsel produced a consent order in which counsel for the applicant and counsel for the respondent both agreed that the order appealed from should be set aside. I invited submissions from counsel as to the effect of such a consent in a case where the order in question is one made on the Court"s own motion. The Prothonotary"s order was made in response to submissions made following a Notice of Status Review. This was initiated by the Court, not by the parties. This is not the usual situation where one party seeks and obtains an order, the benefit of which it may later waive if it considers it appropriate to do so. The order was made by the Court in the exercise of its jurisdiction to manage the matters pending before it.
[5] I have not been persuaded that the consent of the parties displaces the considerations which underly the status review process.
ORDER
Upon reading the Notice of Status Review and the submissions of the applicant and respondent in response; and
Upon reading the submissions of the parties as to the effect of consent to an order setting aside the Prothonotary"s order;
It is hereby ordered that the motion for an order setting aside the order of Lafrenière P. dismissing the applicant"s claim for delay is dismissed.
"J.D. Denis Pelletier"
Judge
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