Transalta Utilities Corp. v. Canada, docket T-3319-90

Date: 20000114

Docket: T-3319-90

BETWEEN:

            

     TRANSALTA UTILITIES CORPORATION

                                     Plaintiff/

                                     Applicant

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

                                     Defendant/

                                     Respondent

     REASONS FOR ORDER

GIBSON J.:

[1]These reasons arise out of an application on behalf of the plaintiff for an Order setting aside the Order of Prothonotary Rosa Aronovitch, made the 13^th of September, 1999, dismissing this action for delay. The grounds provided for the plaintiff"s motion are the following:

The Applicant [the Plaintiff] has responded to a number of Notices of Status Review to show cause why the within action should not be dismissed for delay.

There is a substantive reason that this action not be dismissed for delay in that the parties are presently negotiating an agreement which will settle the outstanding issue in the within action.

It is in the best interests of each of the parties to keep the within action in abeyance until such time as the settlement has been finalized.

[2]In support of its motion, the plaintiff provided documentary evidence consisting of the Notice of Status Review herein dated the 11^th of June, 1998 and the response thereto dated the 8^th of July, 1998; a further Notice of Status Review dated the 5^th of November, 1998 and the response thereto dated the 4^th of December, 1998; an Order of the Court dated the 19^th of February, 1999 and the response thereto dated the 13^th of April, 1999; a further Order of the Court dated the 24^th of June, 1999 and three responses thereto, the first dated the 16^th of July and two dated the 30^th of August, 1999. No affidavit and no written submissions were filed in support of the motion.

[3]When the plaintiff"s motion came on for hearing before me at Calgary, Alberta on the 25^th of October, 1999, counsel for the plaintiff advised the Court that counsel for the defendant consented to the Order being sought. Counsel for the defendant did not appear. I adjourned the hearing of the motion to allow an opportunity for counsel for the plaintiff to provide the Court with written submissions on whether the Court had jurisdiction to grant the relief requested against the standard of review of discretionary orders of prothonotaries established by Canada v. Aqua-Gem Investments Ltd.¹, on the basis of the material that was before the Prothonotary. The adjournment Order provided a fixed time for counsel to respond to the Court"s concern. The Order indicated that following the expiry of that time, the application would be disposed of on the basis of the material before the Court and without further appearance of counsel.

[4]Counsel filed written material in accordance with the Order. The essence of the plaintiff"s argument set out in the material filed is to the effect that the action should not have been dismissed for delay because the parties have only refrained from advancing the action pending the outcome of ongoing negotiations regarding settlement. Counsel for the plaintiff undertook, if requested, to submit further evidence regarding the "ongoing negotiations" by way of affidavit. A request for such evidence was transmitted through the Registry of the Court in Calgary. I was advised by that Registry that the response was an undertaking to provide an affidavit by the 9^th of December, 1999. To the date of these reasons, no affidavit has been received by the Court.

[5]In the written material filed, counsel described the issues on this application in the following terms:

1.      Does a judge of the Court have jurisdiction to set aside the Order of Prothonotary R. Aronovitch and exercise his/her discretion de novo?

2.      In the event a judge of the Court can exercise his/her discretion de novo in this matter, have the parties properly responded to the Status Review?

3.      In the event a judge of the Court can exercise his/her discretion de novo in this matter, may the within action be reinstated on terms the Court may see fit to impose?

[6]I am satisfied that I have jurisdiction to set aside the Order of the learned Prothonotary and to exercise my discretion de novo².

[7]The issue then remains, as indicated on behalf of the plaintiff, whether I should grant the relief requested in light of the history of responses to the Notices of Status Review in this matter.

[8]The powers of this Court on a status review are provided in Rule 382 of the Federal Court Rules, 1998³, which provides as follows:

382. (1) A status review shall be conducted by a judge or prothonotary assigned for that purpose.

(2) At a status review, the Court may

(a) require a plaintiff, applicant or appellant to show cause why the proceeding should not be dismissed for delay and, if it is not satisfied that the proceeding should continue, dismiss the proceeding;

(b) require a defendant or respondent to show cause why default judgment should not be entered and, if it is not satisfied that the proceeding should continue, grant judgment in favour of the plaintiff, applicant or appellant or order the plaintiff, applicant or appellant to proceed to prove entitlement to the judgment claimed; or

(c) if it is satisfied that the proceeding should continue, order that it continue as a specially managed proceeding and make an order under rule 385.

382. (1) L'examen de l'état de l'instance est présidé par un juge ou un protonotaire affecté à cette fin.

(2) À l'examen de l'état de l'instance, la Cour peut :

a) exiger que le demandeur ou l'appelant donne les raisons pour lesquelles l'instance ne doit pas être rejetée pour cause de retard et, si elle n'est pas convaincue que l'instance doit être poursuivie, rejeter celle-ci;

b) exiger que le défendeur ou l'intimé donne les raisons pour lesquelles il n'y a pas lieu d'enregistrer un jugement par défaut et, si elle n'est pas convaincue que l'instance doit être poursuivie, rendre un jugement en faveur du demandeur ou de l'appelant, ou ordonner au demandeur ou à l'appelant de démontrer qu'il a droit au jugement demandé;

c) si elle est convaincue que l'instance doit être poursuivie, ordonner qu'elle le soit à titre d'instance à gestion spéciale et rendre toute ordonnance prévue à la règle 385.

[9]In Baroud v. Canada⁴, Mr. Justice Hugessen wrote at paragraph 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?

[10]As indicated earlier, the first Notice of Status Review herein issued the 11^th of June, 1998. Counsel for the plaintiff responded on the 8^th of July, 1998, in part as follows:

We can advise that TransAlta and the Defendant explored various alternatives to resolve this matter without proceeding with the trial of the action. We can further advise that the parties have reached tentative agreement with respect to settlement with the exception of one point which is still being considered by the parties, but will probably be resolved within the next six months.

The solicitors for the Defendant are in agreement that this matter should be held in abeyance until such time as the one outstanding issue with respect to the settlement of this matter has been resolved between the parties.

Counsel went on to volunteer to provide further information if requested.

[11]The Court gave no indication of its position regarding the response.

[12]A second Notice of Status Review issued the 5^th of November, 1998. Again counsel for the plaintiff responded, in this case by letter dated the 4^th of December, 1998, referring to the earlier response, indicating that the estimate of six months to resolve the matter contained in the earlier response was optimistic and indicating that "...it appears that some further time will be necessary". Once again, an offer of further information was extended.

[13]By Order dated the 19^th of February, 1999, the Court provided that the proceeding would be continued and held in abeyance for two months from the date of the Order, "...while the parties are negotiating to settle the action".

[14]Counsel for the plaintiff again wrote to the Court on the 13^th of April, 1999, in part as follows:

We can advise that TransAlta and the Defendant are in discussions to resolve this matter without proceeding [to] trial of this action. As with our past correspondence, we can confirm that the parties have reached tentative agreement with respect to the settlement, however the parties will not be able to enter into a form of settlement (which would include a discontinuance of the above-noted action) by the time stipulated in Justice Denault"s order of February 19, 1999. We understand that both TransAlta and the Defendant require a further two months in order to complete the terms of the settlement.

An extension until the 19^th of June, 1999 was requested. Once again an offer of further information was extended, this time with reference to a status hearing by teleconference. The further extension requested was informally approved by Prothonotary Aronovitch.

[15] No further communication was received from counsel by the 19^th of June, 1999. In the result, on the 24^th of June, 1999, Prothonotary Aronovitch ordered that the plaintiff would have twenty days from the date of her Order to file either a discontinuance resulting from the settlement of the action or submissions on Status Review failing which the action would be dismissed for delay.

[16]Further submissions were received under date of the 16^th of July, 1999. Counsel advised in part as follows:

We can advise that TransAlta and the Defendant are still in the process of completing a final form of settlement with respect to the above-noted matter, but it appears matters have been delayed slightly due to the summer vacation. However, we anticipate being able to resolve this matter by the end of July.

Once again counsel undertook to provide further information by teleconference, if required.

[17]Counsel again wrote to the Court on the 30^th of August, 1999 noting some form of informal arrangement by which the requested extension to the end of July was in fact provided to the 31^st of August. Counsel wrote:

We can advise that TransAlta and the Defendant continue to be in the process of completing a final form of settlement with respect to the above-noted matter, but we are instructed that the settlement is still not complete nor is it in the form which would allow TransAlta to discontinue the action. The solicitors for the Defendant were in agreement that this matter should be held in abeyance until such time as the settlement has been finalized. However, it appears that this settlement will not be forthcoming prior to August 31, 1999 and as such TransAlta will request, pursuant to Rule 324 and 380 of the Federal Court Rules that the Order of Prothonotary Aronovitch be extended for a further period of time or that the parties submit to a Status Review Hearing in order to agree to a timetable for proceeding with the action. We believe that both the solicitors for the Defendant and for TransAlta would be willing to have a Status Review Hearing by teleconference.

[18]Prothonotary Aronovitch"s order that is here under review, dismissing this action for delay, followed under date of the 13^th of September, 1999.

[19]It is worthy of note that the motion now before the Court indicates that a ground for the motion is that "there is a substantive reason that this action not be dismissed for delay in that the parties are presently negotiating an agreement which will settle the outstanding issues in the within action." No affidavit is provided in support of the motion indicating why the negotiations have not been completed within the various time delays requested and provided, and indicating a realistic final deadline for achieving a settlement after which the action could be either dismissed for delay or proceeded with expeditiously. Following the oral hearing of this motion, written representations provided another offer of further information "if requested". Further information was requested. To date it has not been provided.

[20]The onus is not on the Court on a status review taking place some nine years after an action was commenced to request information justifying further delay. The onus is on the plaintiff to provide such information to the satisfaction of the Court. That onus simply has not been discharged in this matter. The Court has throughout been entitled to something more than bland assurances that the parties are negotiating a settlement that will result in discontinuance, particularly in circumstances where the plaintiff"s own fixed dates for achievement of the settlement have regularly been missed with no substantive explanation.

[21]I repeat the questions identified in Baroud v. Canada with which the Court needs to be concerned at the conclusion of a status review:

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?

[22]The plaintiff had failed to provide satisfactory answers to these two questions at the time Prothonotary Aronovitch dismissed this action for delay. The plaintiff continues to fail to provide satisfactory answers to those questions.

[23]In the result, this application for an order setting aside the order of Prothonotary Aronovitch made the 13^th of September, 1999 dismissing the within action for delay, is dismissed.

                             _____________________________

                                 Judge

Ottawa, Ontario

January 14, 2000

__________________

¹      [1993] 2 F.C. 425 (C.A.).

²      See Canada v. Aqua-Gem Investments Ltd. supra, note 1; Multibond Inc. v. Duracoat Powder Manufacturing Inc., [1999] F.C.J. No. 1698 (Q.L.), (F.C.T.D.); and Reverend Brother Walter A. Tucker v. Her Majesty the Queen, [1999] F.C.J. No. 1879 (Q.L.), (F.C.T.D.).

³      SOR/98-106.

⁴      (1998), 160 F.T.R. 91, (F.C.T.D.).