Date: 20000407
Docket: T-1628-96
BETWEEN:
EDWARD BELL
Plaintiff
- and -
THE ESTATE OF HARRIET BELL, deceased,
THE ADMINISTRATORS AND HEIRS OF THE ESTATE
(Other than Edward Bell), and THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Defendants
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
[1] The moving Defendants, the heirs of the Estate of Harriett Bell (other than Plaintiff), seek an order dismissing the present action for want of prosecution pursuant to Rule 167 of the Federal Court Rules, 1998 (the "Rules"), or alternatively, a stay of the proceedings pursuant to section 50 of the Federal Court Act .
[2] The Defendants submit that there has been an inordinate delay on the part of the Plaintiff in prosecuting his action. The proceeding, instituted in 1996, became the subject of status review pursuant to Rule 380 of the Federal Court Rules, 1998. Based on the Plaintiff"s written representations that he would immediately bring a motion under Rule 220 (determination of a question of law prior to trial), the Associate Senior Prothonotary Peter A.K. Giles allowed the action to continued as a specially managed proceeding. The Plaintiff was also ordered to bring his Rule 220 motion within a prescribed time, but failed to do so. The Defendants submit that this further delay in the proceeding constitutes an abuse of process, that they have been prejudiced as a result and that the action should be dismissed accordingly.
[3] The Plaintiff responds that the order allowing the action to continue was ambiguous in that the parties were also been given an option to request dispute resolution. The Plaintiff understood that the order permitted the matter to "essentially stand down" until such time as there was resolution with respect to the dispute resolution conference requested. He contends that in the circumstances it was reasonable to explore this option. Moreover, the delay in taking action can be explained as it arose from communication problems between the Plaintiff and his two counsel occasioned by intervening absences and holidays.
[4] A review of the entire procedural history of this action is required to better appreciate the parties" positions.
Background
[5] The late Harriet Bell died on April 25, 1988. At the time of her death, the deceased was a status Indian, member of the Garden River Band of Indians and lived on the Garden Indian Reserve in the Province of Ontario.
[6] The deceased having died intestate, the devolution of her estate is governed by the Indian Act and the Indian Estates Regulations. She was survived by six of her seven children, including the Plaintiff, Edward Bell. The surviving children and the children of her deceased daughter comprise the heirs to the estate.
[7] The Plaintiff, his sister and a representative of the Department of Indian and Northern Affairs were appointed co-administrators of the estate in November 1989. The two principal assets of the estate consisted of a parcel of land located on the reserve ("Lot 226") and a campground business located on the property.
[8] The Plaintiff filed a Statement of Claim on July 8, 1996 claiming that he was the sole heir of the estate entitled to the use and possession of Lot 226 and that neither the business nor assets of the business were part of the estate. Immediately upon filing the claim, the Plaintiff sought an interim order on an ex parte basis for interim possession of the land and operation and control of the business. An interim order was granted by this Court in favour of the Plaintiff on July 9, 1996, to continue for a period of 10 days. The Plaintiff"s motion for an interlocutory injunction, which had been adjourned to July 26, 1996, was subsequently adjourned sine die . There is no indication of any further procedural steps being taken by the Plaintiff to move the proceeding forward after July 26, 1996.
[9] On March 4, 1999, a notice of status review was issued by this Court requiring the Plaintiff to show cause by April 6, 1999 why the action should not be dismissed for delay. Belatedly, the Plaintiff responded to the show cause Order on April 7, 1999 by requesting a ten day extension to seek instructions from his client. On April 15, 1999, counsel for the Plaintiff requested a further extension to April 30, 1999 "to ensure that Mr. Bell has the benefit of the advice of both solicitors he has consulted in this matter."
[10] On May 5, 1999, Associate Senior Prothonotary Peter A.K. Giles ordered that the Plaintiff file his written submissions by May 25, 1999 and that he include a proposed timetable for the completion of the necessary steps in the proceeding. The Plaintiff once again missed the deadline imposed by the Court. On May 26, 1999, his written submissions were filed in response to status review. The Plaintiff wrote that if the action was allowed to continue, the Plaintiff would proceed to serve and file a motion pursuant to Rule 220 by June 21, 1999 to request that the Court determine before trial his interest in Lot 226 based on an alleged inter vivos transfer by his mother.
[11] On June 21, 1999, the Associate Senior Prothonotary allowed the proceeding to continue. His order provided that the Plaintiff could, by July 12, 1999, file a motion pursuant to Rule 220. The order further provided that in the interim any party could move for a dispute resolution conference.
[12] On July 12, 1999, counsel for the Plaintiff wrote the Registry as follows:
| Further to the order of the Prothonotary directing that a Notice of Motion for stated case be served and filed by this date, I am writing to advise that there has been a delay in getting the signed material from Sault Ste. Marie and that I will be filing a Motion Record, including a request for extension of time, within the next few days. |
[13] Two weeks passed before the next communication was received from counsel for the Plaintiff. On July 26, 1999, he wrote:
| Further to the order of the Prothonotary herein, and to my letter of July 13, 1999, I am now advised by Mr. Bell"s local solicitor that he wishes to request dispute resolution as contemplated by the said order. I expect to receive his affidavit in that behalf within the next few days and will be filing a motion for an extension of time to make this request. |
[14] On August 4, 1999, the Plaintiff brought a motion in writing seeking an extension of time to request a dispute resolution. The motion was dismissed on August 30, 1999 for the following reasons:
| The Plaintiff has failed to explain why he did not bring a motion under Rule 220 as he undertook to do in his written submissions on status review. Moreover, the reasons provided by the Plaintiff for the delay in bringing his motion for an extension of time to request a dispute resolution conference were not beyond the control of the Plaintiff or his counsel and, in any event, are unacceptable. Once the action was allowed to continue following status review, the Plaintiff should have paid close attention to the time frames set by the Court. In addition, the Plaintiff failed to establish that a dispute resolution conference would be appropriate in the circumstances. |
Defendants" Motion to Dismiss for Delay
[15] The Defendants" motion to dismiss the action for delay, which was served on August 23, 1999 and filed on August 24, 1999, was brought in writing pursuant Rule 369. Two affidavits were filed in support of the motion, one by Rita Valiquette sworn August 11, 1999 and the other by Margaret Hele sworn June 22, 1999. The two affiants, who were not cross-examined by the Plaintiff, set out in detail the history of the proceeding and the negative impact the delay has caused to them and other heirs of the estate.
[16] Rule 369(2) requires a respondent to a motion brought in accordance with subsection (1) to serve and file a respondent"s record within ten days after being served with the moving party"s record. The Plaintiff"s responding record was therefore due no later than September 2, 1999. The Plaintiff failed to submit a motion record withing the time prescribed.
[17] On September 8, 1999, the Registry received two letters from Mr. Robert MacRae, counsel for the Plaintiff. In his first letter, Mr. MacRae advised the Court that the Notice of Change of Solicitors would be filed because of allegations raised in the Defendants" motion materials against the Plaintiff"s solicitor of record. In his second letter, Mr. MacRae writes that a response would be filed to the Defendants" motion shortly and that the Plaintiff would be requesting an oral hearing of the motion.
[18] On September 21, 1999, the Plaintiff filed a cross-motion record in response to the Defendants" motion, requesting the following relief:
| a. An order extending the time to file responding material; |
| b. An order dispensing with compliance respecting time limitations; |
| c. An order that the disposition of the motion be heard by oral argument; |
d. The costs of this cross-motion; and
| e. Such further and other relief as to this Honourable Court may seem just. |
[19] The Plaintiff"s motion was supported by the affidavit of Edward Bell sworn September 18, 1999. There was also reference to an affidavit of Bill Henderson, however that affidavit was not included in the Plaintiff"s motion record as required under the Rules. Nor were any written representations attached.
[20] The Defendants responded to the Plaintiff"s cross-motion by filing a responding motion record containing the affidavit of Kimberly Murray sworn October 1, 1999 and further written representations. The Defendants submitted that the Plaintiff"s response to their motion was both incomplete and untimely and that the cross-motion should accordingly be dismissed.
[21] On October 18, 1999, the Plaintiff filed a "Supplementary Motion Record" consisting of unsigned written submissions seeking leave from the Court to receive the affidavit of William B. Henderson. An unsworn version of the affidavit was attached.
[22] Following receipt of the Plaintiff"s documents, the Registry referred the matter to the Court for directions under Rule 72. In light of the Defendants" earlier objection regarding the admissibility of the Plaintiff"s cross-motion record and the irregular form of the Plaintiff"s Supplementary Motion Record, the parties were directed to be make themselves available for a hearing by teleconference to deal with the admissibility of the Plaintiff"s documents and the Defendants" motion.
[23] A teleconference was held with counsel for the parties on November 19, 1999. Prior to that date, the Plaintiff, without first seeking leave of the Court, tendered the affidavit of William B. Henderson sworn October 12, 1999 for filing. During the teleconference, counsel for the Plaintiff advised that he was not prepared to address the Defendants" motion on the merits and requested leave to file an additional affidavit on the issue of delay.
[24] At the conclusion of the hearing by teleconference, the Court granted the Plaintiff"s request, on consent of the Defendants, and ordered that the Plaintiff serve and file his affidavit material and written representations in response to the Defendants" motion by November 26, 1999. The Defendants were granted leave to cross-examine the Plaintiff"s affiant before filing their written representations in reply no later than December 1, 1999. The Court further ordered that the motion would be disposed of in writing upon receipt of the Defendants" reply written submissions.
[25] On November 25, 1999, the Plaintiff filed "Submissions Record of the Plaintiff". In a letter to counsel for the Defendants dated December 10, 1999, Mr. MacRae wrote in part:
| I ask that you be kind enough to review my submissions to satisfy yourself that all submissions relate specifically to previously filed affidavits. I requested the opportunity to file an additional affidavit of Mr. Henderson in order to ensure that, in the event I thought it necessary, I would have the permission of the Court to do so. Upon review and reflection, the previously filed affidavits were sufficient. |
[26] The Defendants subsequently moved for an extension of time to file written representations in reply to the Plaintiff"s responding submissions to their motion.
[27] The Defendants" motion for an extension of time is supported by the uncontradicted affidavit of Alice Corbière in which she asserts that the Defendants could not act until the Plaintiff complied with the order dated November 19, 1999 requiring him to serve and file his affidavit material by November 26, 1999. The Defendants assert that the Plaintiff requested an order from the Court and, once granted, failed to abide by its terms. They submit that it was reasonable in the circumstances to wait to ascertain whether the Plaintiff would in fact be filing an affidavit.
[28] The Defendants acted promptly and provided a satisfactory explanation for not having filed their reply representations by December 1, 1999. In my view, the Plaintiff is solely responsible for the delay, having lead both the Defendants and the Court to believe that an affidavit was forthcoming. Moreover, there is no evidence of prejudice to the Plaintiff should an extension be granted. Consequently, the Defendants" written submissions in reply will be received for filing.
Analysis
[29] In considering a motion for dismissal for delay, generally the following test must be applied: whether there has been inordinate delay, whether the delay was inexcusable and whether the defendant is likely to be seriously prejudiced by the delay. However, in my view, the same test should not be applied to proceedings which have survived status review.
[30] In Multibond Inc. v. Duracoat Powder Manufacturing Inc.1, MacGillis, J. reviewed the rules established by the Court relating to case management and commented as follows:
| 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. An integral part of the case management scheme in the Rules involves the conduct of a status review in circumstances where a party has failed to comply with certain time frames in a proceeding. Rules 380 to 382 govern the procedure to be followed on a status review.... |
| By virtue of rule 380(2), a status review is to be conducted on the basis of written representations, unless the Court directs otherwise. The discretionary powers of the Court on a status review are clearly delineated in rule 382(2). In the case of delay occasioned by a plaintiff, rule 383(2)(a) permits the Court to require a plaintiff " ...to show cause why the proceeding should not be dismissed for delay". If the Court is not satisfied on the show cause hearing that the proceeding should continue, the proceeding may be dismissed. Conversely, if the Court is satisfied that the proceeding should continue, it may order "...that it continue as a specially managed proceeding and make an order under Rule 385". |
[31] Although the Rules give little guidance as to how a status review is conducted, the following test was established by Hugessen J. in Baroud v. Canada2 :
| [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 action along. Mere declarations of good intent and of the desire to proceed are |
[32] It is clear from the above that in determining whether to allow a matter to continue on status review, the Court not only takes into account the explanation of the defaulting party for the delay, but also their proposal for moving the proceeding along. The party"s written representations are therefore given significant weight by the Court in disposing of the status review.
[33] If in response to status review a party states unequivocally that a specific step will be taken within a certain time and the Court subsequently orders that the proposed step be taken, that party should comply, except for circumstances beyond the control of counsel or the party. Otherwise, the Court"s ability to supervise and manage the proceeding will be altogether thwarted.
[34] The Plaintiff has on numerous occasions disregarded deadlines imposed by the Court. There has been a pattern of non-compliance on his part which has resulted in a substantial delay in moving the proceeding forward. The lackadaisical attitude of the Plaintiff should, in my view, be strongly censured by the Court.
[35] The Plaintiff represented to the Court in response to status review that he would immediately bring a Rule 220 motion should the proceeding be allowed to continue. No satisfactory explanation has been provided by the Plaintiff for failing to bring the motion as undertaken. I have therefore concluded, in the exercise of my discretion, that the Plaintiff should not be permitted to continue with his action and that the Defendants" motion to dismiss for delay should be granted.
| IT IS HEREBY ORDERED THAT: |
[36] The Defendants" motion for an extension of time to file reply written submissions is granted and the written submissions shall be filed nunc pro tunc .
[37] The Defendants" motion for dismissal for delay is granted.
[38] The action is dismissed with costs payable by the Plaintiff to the moving parties hereby fixed in the amount of $3,000.00 and their taxable disbursements.
"Roger R. Lafrenière"
Prothonotary
TORONTO, ONTARIO
April 7, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: EDWARD BELL |
| THE ESTATE OF HARRIET BELL, deceased, THE ADMINISTRATORS AND HEIRS OF THE ESTATE (Other than Edward Bell), and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULES 369 and 380.
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: FRIDAY, APRIL 7, 2000
SOLICITORS OF RECORD: Sarlo O"Neill
Barristers & Solicitors
116 Spring Street
Sault Ste. Marie, Ontario
P6A 3A1
Gary E. Corbière
For the Defendants
FEDERAL COURT OF CANADA
Date: 20000407
Docket: T-1628-98
Between:
Plaintiff
- and -
| THE ESTATE OF HARRIET BELL, deceased, THE ADMINISTRATORS AND HEIRS OF THE ESTATE (Other than Edward Bell), and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT |
Defendants
AND ORDER
__________________
1 Court No. T-1703-94, October 4, 1999
2 (1998) F.C.J. No. 179
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