Date: 20020528
Docket: T-1227-00
Neutral Citation: 2002 FCT 610
Ottawa, Ontario, May 28, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
ADRIAN JOHN WATSON
Plaintiff
and
HER MAJESTY THE QUEEN, AS REPRESENTED
BY THE ROYAL CANADIAN MOUNTED POLICE
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion in writing, made on behalf of the plaintiff under Rule 369 of the Federal Court Rules, 1998, for an order to set aside the order of the Court dated April 26, 2002, and to allow the plaintiff to file and serve a requisition for a pre-trial conference and a memorandum.
[2] The plaintiff should have filed a requisition for a pre-trial conference by February 15, 2002.
[3] The parties were involved in ongoing settlement discussions.
[4] The plaintiff had a continuing intention to pursue the application.
[5] The plaintiff's solicitor attempted to file a requisition for a pre-trial conference on April 10, 2002, which was two weeks before the order dismissing this action.
[6] In a memorandum dated April 25, 2002 was submitted to me it reads:
NATURE OF PROCEEDING: Crown General Proceedings
[...]
Further to a memorandum to Court dated November 29, 2001, (TAB C), the Court (Blais, J.) rendered an Order on December 5, 2001, that the action could continue. Examination on undertakings and discoveries had to be completed by January 25, 2002 and a Requisition for a pre-trial conference filed by February 15, 2002. (TAB D)
To this date no response has been received on behalf the Plaintiff and the Requisition for a pre-trial conference has not been filed.
[...]
[7] Even if this memorandum was accurate, there was no mention whatsoever that the plaintiff had tried to file a requisition for a pre-trail conference on April 10, 2002.
[8] The defendant's solicitor requested that a pre-trial conference be scheduled pursuant to her letter dated March 25, 2002.
[9] This Court was completely unaware that the plaintiff's counsel had tried to file a requisition for a pre-trial conference on April 10, 2002.
Rule 399(2)(a) of the Federal Court Rules, 1998
[10] This rule allows the Court to set aside or vary an order in specific circumstances.
| 399.(2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; [...]
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399. (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants:
a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue; [...]
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Finality of an Order
[11] The policy of the law strongly favours finality of court orders, this is to ensure the certainty of the transactions in issue and the integrity of the judicial process as per Nu-Pharm Inc. v. Canada (Attorney General), [2000] 1 F.C. 463 (F.C.A.).
[12] In addition, any application brought to set aside a judgment is exceptional and must be brought with due diligence. That being said, in Zolfiqar v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1790 (F.C.T.D.), Rothstein J. held:
[para 12] The general rule is that judicial decisions are final. Reconsideration is a narrow exception to the rule of finality. Matters arising subsequent to the making of a decision or discovered subsequent to the making of a decision may provide grounds for reconsideration. A judgment obtained through fraud may also be reconsidered. See Federal Court Rules 1998, subsection 399(2). However, the party seeking reconsideration must exercise due diligence to obtain all relevant information prior to the original decision being rendered. Further, the new information must indeed be new and not the same information that was previously available put in another form or brought in through another witness.
(my emphasis)
When varying or setting aside an Order is permissible
[13] In the case of Annacis Auto Terminals (1997) Ltd. v. Cali (The), [1999] F.C.J. No. 1579 (F.C.T.D.), Prothonotary Hargrave outlined a stringent three-fold test that must be satisfied for an order to be varied or set aside:
[para 17] The general rule is that once the order is endorsed and signed, or given orally from the bench (see Rule 392(2)) it is final, subject to an appeal. However, there are exceptions under certain circumstances.
[para 20] [...] Although the Rule 399 provides an exception, a moving party must meet a stringent test in order to vary an order or to set it aside. The test is three-fold: First, there must be new matter arising or discovered subsequent to the order; second, the moving party must establish that it could not with reasonable diligence have discovered the new matter sooner; and third, that if the new matter had initially been brought forward it would probably have resulted in a different original order: see Re Saywack v. Canada (M.E.I.), [1986] 3 F.C. 189 (F.C.A.), at page 201 and following, approving Dumble v. Cobourg and Peterbrough R.W. Co. (1881), 29 Gr. 121 (Ont. Ch.) and Canada v. Palmier (1998), 137 F.T.R. 71 at 73.
(my emphasis)
[14] The defendant relies on two (2) immigration cases: Guzman v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 286 (F.C.T.D.) and Desouky v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1541 (F.C.T.D.).
[15] In Guzman, supra, Teitelbaum J. was faced with a case where the applicant retained the services of a lawyer who was ignorant of the Federal Court of Canada's Rules and particularly as they apply to immigration matters. At paragraph 40, Teitelbaum J. held:
[para 40] I am satisfied that subsection 399(2) of the Rules was not meant to apply to vary or set aside a final judgment of the Court because one of the parties to the final judgment had retained the services of a [page299] lawyer who, it is subsequently found out, was not properly versed in the law or the rules of a Court.
[16] Also in Desouky, supra, Teitelbaum J. was faced with a similar situation where he held:
[para 13] Unfortunately for the applicant, the lawyer's inexperience or lack of knowledge cannot be considered as a reason to set aside a final judgment of the Court.
[17] In the present matter, I do not find that the plaintiff's counsel was ignorant of the Federal Court Rules since an attempt was clearly made to file a requisition for a pre-trial conference on April 10, 2002, thereby indicating a procedural understanding of the Rules and how they apply.
[18] This discovery satisfies the requirement of Rule 399(2)(a) by reason of a matter that arose or was discovered subsequent to the making of the order. In addition, had this Court been aware of this fact, the original order dated April 26, 2002 would have differed in its result which satisfies the third element of the three-fold test set out by Prothonotary Hargrave in Annacis Auto Terminals, supra.
O R D E R
[19] Therefore, pursuant to Rule 399(2)(a);
IT IS ORDERED THAT:
[20] The order of this Court dated April 26, 2002 is set aside;
[21] The plaintiff is allowed to file and serve a requisition for a pre-trial conference no later than June 7, 2002.
Pierre Blais
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1227-00
STYLE OF CAUSE: ADRIAN JOHN WATSON v. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: MAY 28, 2002
WRITTEN REPRESENTATIONS BY:
MR. JOHN D'ARCY BOULTON FOR PLAINTIFF
MS. TRACY KING FOR DEFENDANT
SOLICITORS OF RECORD:
JOHN D'ARCY BOULTON FOR PLAINTIFF
Toronto, Ontario
MORRIS ROSENBERG FOR DEFENDANT
Deputy Attorney General of Canada
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