Thiel v. Canada (Veterans Review and Appeal Board), docket T-1468-99

Date: 20001128

Docket: T-1468-99

BETWEEN:

                             ALLAN THEODORE THIEL

                                                                                            Applicant

                                                 - and -

     VETERANS REVIEW AND APPEAL BOARD CANADA

                                                                                        Respondent

                    REASONS FOR ORDER AND ORDER

LUTFY A.C.J.

[1]    The disposition of the notice of status review issued in this proceeding has been referred to me as duty judge.

[2]    On August 13, 1999, this application for judicial review was filed.

[3]    On November 19, 1999, Prothonotary Hargrave ordered that the applicant's affidavits and documentary exhibits, pursuant to Rule 306, be served and filed on or before December 15, 1999. The terms of his order read as follows:

The Applicant's material does not comply with Rule 306, which contemplates an affidavit to which are exhibited the documents upon which the Applicant intends to rely. Mr. Thiel seems to have submitted the argument he intends to use at the hearing, together with several notarized exhibits: the argument is premature, for it should form part of the Rule 309 record.

The 5 November, 1999, material is to be returned to Mr. Thiel.

Mr. Thiel shall have until close of registry on 15 December, 1999, within which to serve and file an affidavit or affidavits, in proper form, together with documentary exhibits.

[4]    On December 3, 1999, the applicant filed a motion, pursuant to Rule 369, to appeal the order of Prothonotary Hargrave.

[5]    On February 10, 2000, the applicant's motion in appeal of the order of Prothonotary Hargrave was denied.

[6]    On March 3, 2000, the applicant filed a notice of appeal in the Court of Appeal from the decision of the Trial Division dated February 10, 2000, which dismissed his appeal from the order of Prothonotary Hargrave. This appeal is still pending before the Court of Appeal.

[7]    On June 27, 2000, a notice of status review was issued to the parties.

[8]    On June 28, 2000, the applicant filed the following submissions in response of the notice of status review:

This is in reference to the facsimile received from your office this morning entitled "Notice of Status Review" dated June 28^th, 2000 and one that was filed in the Federal Court of Canada on June 27^th, 2000.

To confirm this matter is in the Federal Court of Appeal and yesterday I had a call from your office advising me of the most recent decision by Justice MacDonald on June 23rd, 2000. The phone call yesterday was to give me a brief update on the decision on my Motion requesting not only a change of venue, but also advice on the contents of the appeal books. The phone caller yesterday further advised me that the documents concerning Justice MacDonald's decision would be mailed to me in the next couple of days.

All to Appeal the February 10^th, 2000 Order of Associate Chief Justice Allan Lutfy whose signature is affixed to this "Notice of Status Review", wherein I am to show cause why the original application should not be dismissed for delay.

I can only briefly reiterate that this further confirms my concerns in this matter and your perusal of my Appeal documents will provide my documented reasons.

The respondent filed no submissions in response to the notice of status review.

[9]                In summary, this proceeding has not advanced in any substantive way since the application for judicial review was filed. There has been no stay of this proceeding in the Trial Division, pending the appeal now before the Court of Appeal.

[10]            In Baroud v. Canada (1998), 160 F.T.R. 91, Justice Hugessen enunciated the following twofold test in the adjudication of a notice of status review:

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?

[11]            In Lignum Ltd. v. Azur, [2000] F.C.J. No. 198 (C.A.), the Court of Appeal applied the principles set out in Baroud.

[12]            In this proceeding, I have concluded that the applicant has neither explained his failure to move this proceeding forward, nor justified the delay in the Trial Division, nor proposed specific steps to advance the application for judicial review. In the absence of any stay, there is no reason not to advance the proceeding in the Trial Division.

[13]            Accordingly, in the exercise of my discretion, I have concluded that, unless the applicant complies with the order of Prothonotary Hargrave dated November 19, 1999, within fourteen (14) days of the date of these reasons, this application for judicial review must be dismissed for delay.

                                               ORDER

UPON review of the applicant's submissions of June 28, 2000 in response to the notice of status review dated June 27, 2000;

IT IS HEREBY ORDERED THAT:

1.         The applicant shall comply with the order of Prothonotary Hargrave dated November 19, 1999 within fourteen (14) days of the date of this order.

2.         In the event that the applicant fails to comply with paragraph 1 of this Order, this application for judicial review will be dismissed for delay.

                                                                                         "Allan Lutfy"                     

                                                                                                  A.C.J.

Ottawa, Ontario

November 28, 2000