Roy v. Canada, docket T-3279-90

Date: 20000901

Docket: T-3279-90

BETWEEN:

     DIANNE ROY, MARY BALLANTYNE,

     CATHERINE PATTERSON-KIDD

     Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR ORDER AND ORDER

BLAIS J.

[1]      On August 31, 1999, this Court ordered that the trial in this matter be scheduled for seven days, commencing September 5, 2000. That order also required that the parties discuss the issues.

[2]      At the beginning of June 2000, as case management judge, I wanted to check whether the parties had discussed the issues and whether they were prepared for the trial set for September 5, 2000.

[3]      After many requests to the registrar, I was told that Ms. Laliberté, at the time counsel for the plaintiffs, was not available because she was involved in a trial. It took almost two weeks to finally order that a conference call be organized for June 14, 2000.

[4]      In the morning of June 14, 2000, I asked the registrar whether the parties and counsel for the parties were ready for the conference call. At this time, I was informed by the registrar that she was told by Ms. Laliberté, counsel for the plaintiffs, that it was not necessary to put the plaintiffs on the line.

[5]      I told the registrar that it was an order of the Court and that pursuant to Rule 260 of the Federal Court Rules, 1998, unless the Court directs otherwise, the solicitors of record for the parties and the parties or their authorized representatives shall participate in a pre-trial conference. I also told the registrar that the Court was not going to direct otherwise. (my emphasis)

[6]      I was not surprised, a few hours later, when Ms. Laliberté informed everybody on the line that she had not yet informed her clients that she was not representing them anymore.

[7]      Counsel for the defendant, Mr. Saunders, at this very conference call, informed the Court that he tried more than fifteen times to reach counsel for the plaintiffs, but she never returned his calls.

[8]      During that conference call, I informed the parties and the two counsel and also Ms. Kathy Baker who was also on the line and had expressed her interest in acting as counsel in this matter but could not be acting for the plaintiffs without an adjournment, that I was not prepared to allow an adjournment given the circumstances that were presented to me at this time. I also informed the plaintiffs that they should be in touch with their counsel, that I was not yet ready to allow Ms. Laliberté to abandon the case without securing a new counsel that would be ready to proceed on September 5, 2000.

[9]      I mentioned to the parties and to the counsel that I considered the delay, even with the explanations given by Ms. Laliberté, to be totally unacceptable in the circumstances.

[10]      I also mentioned that there were costs for all parties and also for the Court to be trapped in that situation for which Ms. Laliberté is responsible.

[11]      I was not prepared to adjourn a trial for a case that is ten years old without a valid reason.

[12]      The plaintiffs informed the Court that they were not aware that their counsel had literally abandoned the file and they had no idea how to appoint a new counsel to represent them.

[13]      I understand that Ms. Laliberté made some efforts to find a counsel to replace her but was unsuccessful in her efforts. Nevertheless, Ms. Laliberté neglected to advise the Court and her clients about the situation a long time before the trial and she also neglected to comply with the order of this Court of August 1999.

[14]      At the conference call held on June 30, 2000, the Court told Ms. Laliberté that she would have to bring a 369 motion before the Court in order to be taken off the case with a detailed affidavit in support. The Court stipulated also that if the new counsel wished to have an adjournment, he or she would have to bring a new motion. At the end of this teleconference, Ms. Laliberté indicated that she would file a detailed affidavit in support of her motion upon Rule 369.

[15]      Ms. Laliberté never brought a motion before the Court in order to be taken off the case. The Court was before a "fait accompli" on August 2, 2000, when the Court learned that Mr. Neil Wilson was the new counsel for the plaintiffs.

[16]      When Ms. Laliberté says in her affidavit that: "It was not until August 4, 2000 that Mr. Saunders was advised that the adjournment would be granted", Ms. Laliberté should recognize that the motion was filed and served at the end of July 2000 and presented to the Court on August 2, 2000. When Ms. Laliberté says in the same paragraph: "By this time, Mr. Neil Wilson had agreed to take the file and was ready to start the trial on September 5, 2000", this comment is not accurate. On August 2, 2000, at the telephone conference, Mr. Wilson advised the Court that he was available for the trial on September 5, 2000, but he needed more time to be ready for the trial, which is quite different of what is mentioned in Ms. Laliberté's paragraph. (my emphasis)

[17]      Mr. Neil Wilson who has been retained to represent the plaintiffs in this matter, in just a few days, was capable to discuss with the other party and to comply with the order of this Court, dated August 30, 1999.

[18]      That simple example shows that when a counsel decides to do something, it can be done on a very short delay.

[19]      I have carefully reviewed the written representations on behalf of Lucie A. Laliberté in response to the notice issue pursuant to Rule 404(2) of the Federal Court Rules, 1998, and also the affidavit of Lucie A. Laliberté sworn on August 28, 2000 and also the materials attached to those two documents.

[20]      Ms. Laliberté failed to convince the Court that she was not responsible for the adjournment of the trial that was scheduled for seven days, starting September 5, 2000.

[21]      In my view, Ms. Laliberté failed to convince the Court that she should not pay the costs of this adjournment.

[22]      For these reasons, THIS COURT ORDERS THAT:

                         Pierre Blais

                         Judge

OTTAWA, ONTARIO

September 1, 2000