Date: 20120504
Docket: T-1300-11
Citation: 2012 FC 548
Vancouver, British Columbia, May 4, 2012
PRESENT: Roger R. Lafrenière, Esquire
Case
Management Judge
BETWEEN:
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THE ESTATE, WIDOW AND CHILDREN
OF MORDRED HARDY
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Plaintiffs
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and
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THE ATTORNEY GENERAL OF CANADA
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Defendant
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REASONS FOR ORDER AND
ORDER
[1]
A
case management judge is not simply a referee who must sit passively while a
party carries on as it pleases. It would undermine the administration of
justice if a case management judge had no power to intervene at an appropriate
time and, after hearing submissions, make directions necessary to ensure that
the matter proceeds in an orderly, efficient and expeditious manner. As was
stated by Mr. Justice S.R. Romilly of the Supreme Court of British Columbia in R
v Adam et al, 2006 BCSC 1405, this power should not be seen “as a limited
one resting solely on the Court’s power to intervene to prevent an abuse of its
process. Rather, the power is founded on the Court’s inherent jurisdiction to
control its own process.”
[2]
By
Reasons for Order and Order dated February 16, 2012, Mr. Justice Sean
Harrington granted Mr. Karl Hardy leave to represent the other parties of
interest as applicants in T-1299-11 and plaintiffs in T-1300-11: Hardy
Estate v Canada (Attorney General), 2012 FC 220. The background of the two proceedings is succinctly summarized by Mr.
Justice Harrington as follows:
[1]
Helena Audry, the widow of the late Mordred Hardy, is 91 years of age.
She gets around with the aid of a walker. She is the principal claimant, and
perhaps the only claimant, in these two proceedings against the Crown. She has
the right to represent herself. However, she has asked her son, Karl Hardy, who
is not a lawyer, to act in her stead. The Crown moved for a stay of proceedings
pending the appointment of a solicitor. Prothonotary Lafrenière granted the
motion. This is the appeal therefrom.
[2]
It all began in 1943. Mordred Hardy was serving in the Royal Canadian Navy
on board of the HMCS Kamloops. In March of that year, there was a training
accident during a depth charge drill. Mr. Hardy was injured and was
hospitalized. A few months later he was discharged not because of his physical
injury, but on the grounds of schizophrenia. This has been a bone of contention
with the family for the past 69 years.
[3]
It is alleged that soon after his discharge he applied for a disability
pension because of his physical injury, and again applied in 1975. However, it
was only in 1997 that he was finally awarded a disability pension based on a
degenerative disk disease caused by the depth charge blast. Mr. Hardy died in
1999. Mrs. Hardy is entitled to a pension as a surviving spouse in accordance
with section 45 of the Pension Act.
[4]
In 2010, the Entitlement Review Panel varied the initial decision by
granting entitlement effective 27 November 1994, three years prior to the
Minister’s decision and an additional award of 24 months. The panel determined
that Mr. Hardy had made an application for a pension in 1975 and that he asked
for help in order to complete the form. No one answered him. The additional two
years were granted in accordance with section 39(2) of the Act as the panel was
of the opinion the pension should have been awarded earlier but was not “by
reasons of delays in securing service or other records or other administrative
difficulties beyond the control of the applicant.” As pointed out in Mackenzie
v Canada (Attorney General), 2007 FC
481, 311 FTR 157, this is a very harsh provision. The decision of the
Entitlement Review Panel was upheld in 2011 by the Veterans Review and Appeal
Board Canada. The next step is a judicial review of that decision.
Although the only beneficiary of the pension is Mrs. Hardy, the style of cause
of the application for judicial review in court docket T-1299-11 reads: “The
Estate and Survivors of Mordred Hardy, Veteran”.
[5]
In addition, an action for damages was taken under court docket T-1300-11
by: “The Estate, Widow and Children of Mordred Hardy”. The pleadings are
replete with very strong language. For instance, in anticipation of time bar
arguments, it is alleged that: “It would be awarding perjury, obstruction,
fraud and liability avoidance initiated and perpetuated by the government,
continuously, from 1943.”
[6]
The
Attorney General moved for a stay of proceedings until a solicitor was
appointed to represent the applicants/plaintiffs. Reliance was placed on rule
112 of the Federal Courts Rules which provides that unless the Court
orders otherwise, beneficiaries of an estate or trust are bound by an order
against the estate or trust, and rule 121 which provides that unless the Court
orders otherwise in special circumstances, a person who seeks to act in a
representative capacity shall be represented by a solicitor. The Attorney
General also stated that he intended to move to have the action under T-1300-11
struck, and failing that, sought additional time to file a statement of defence
until after the judicial review under T-1299-11 had been decided.
[3]
Mr.
Justice Harrington referred to the case management judge the matter of the timing
the intended motions by the Attorney General of Canada (Crown) to strike, to
obtain particulars, or for a stay of T-1300-11 pending the determination of T-1299-11.
In the interim, the Crown was relieved from the requirement to serve and file
his motion record in T-1299-11 and his statement of defence in T-1300-11.
[4]
In
response to the Court’s directions issued on April 3, 2012, requiring the
parties to identify the outstanding motions and to propose a timetable for
responding motion records, Mr. Hardy submitted two letters, both referring to a
potential motion for recusal if the outstanding motions do not go forward.
[5]
By
Reasons for Order and Order dated April 10, 2012, the Plaintiffs were directed
to serve and file their motion for recusal, if any, by April 20, 2012, failing
which the allegations would be deemed abandoned: Hardy Estate v Canada
(Attorney General), 2012 FC 406. The Plaintiffs elected to take no action.
[6]
A
case management conference was held with Mr. Hardy and counsel for the Attorney General
in Calgary on May 1, 2012. The
parties confirmed that the following motions remained outstanding:
T-1299-11
(a)
Motion
in writing by the Applicants dated September 7, 2011 pursuant to
Rule 105(a) of the Federal Courts Rules for an order to consolidate
T-1299-11 and T-1300-11;
(b)
Motion
in writing by the Applicants dated September 7, 2011 for leave pursuant to Rule
237(3) to obtain alternate written examination in T-1299-11 and T-1300-11; and
(c)
Motion
in writing dated September 27, 2011 on behalf the Attorney General of Canada
for an order: (i) providing directions to the parties with respect to the
Applicants’ motions described above, (ii) providing an interim direction
suspending and/or extending Canada’s time to respond to the said motions; and
(iii) appointing a case management judge to manage the proceedings in T-1299-11
and T-1300-11 concurrently as specially managed proceedings.
T-1300-11
(a)
Motion
in writing by the Plaintiffs dated September 7, 2011 pursuant to Rule 105(a) of
the Federal Courts Rules for an order to consolidate T-1299-11 and
T-1300-11;
(b)
Motion
in writing by the Plaintiffs dated September 7, 2011 for leave pursuant to Rule
237(3) to obtain alternate written examination in T-1299-11 and T-1300-11; and
(c)
Motion
in writing by the Plaintiffs dated September 11, 2011 for summary judgment in
the matter of the Statement of Claim under Court File No. 1300-11 per Federal Courts
Rules 202 and 204;
[7]
At
the case management conference, Mr. Hardy submitted that the Crown was in
blatant and repeated violation of the Federal Courts Rules. He pointed
out that the Crown: (a) had failed to serve and file motion records in response
to the Plaintiffs/Applicants’ motions within 10 days as required by Rule
369(2), (b) had failed to serve and file a statement of defence within the time
provided by Rule 204, and (c) did not comply with Rule 307 by serving and
filing the Crown’s supporting affidavits and documentary exhibits. Mr. Hardy
complained that the Crown instead brought groundless motions, which he
described as a “cascading boondoggle”, in an attempt to stall and frustrate the
proceedings.
[8]
Crown
counsel conceded that the proceedings had gotten off on the wrong foot. She acknowledged
as well that the Plaintiffs/Applicants’ motions had not been responded to in a
timely manner. She maintained, however, that the Crown had acted reasonably
throughout. In the face of motions that were viewed as procedurally defective,
the Crown brought a motion to stay T-1299-11 pending the appointment of a
solicitor by the Applicants, and also sought relief in respect of timelines for
the filing of a statement of defence in T-1300-11.
[9]
After
hearing the submissions of the parties, I encouraged Mr. Hardy and Crown
counsel to meet to discuss how best to proceed with the two matters. When the
case management conference reconvened after a short break, Mr. Hardy reported
that the parties had reached an impasse. He indicated an adjournment for a few
days would be required in order to canvass his family members whether they
would agree to stay the action in T-1300-11 pending the outcome of the
application for judicial review in T-1299-11.
[10]
The
case management conference was adjourned on the understanding that Mr. Hardy
would submit a letter by May 8, 2012 to advise whether the Plaintiffs would
consent to stay of the action in T-1300-11, proceed with the application for
judicial review, and withdraw and then replace the affidavit filed in support
of the application. In the event consent to stay of proceedings was not
forthcoming, Mr. Hardy agreed to propose a course of action to move the two
proceedings forward.
[11]
By
letter to the Registry dated May 3, 2012, Mr. Hardy appears to have resiled
from his commitment to the Court. His letter is silent regarding the
feasibility of staying the action. Moreover, rather than put forward a
reasonable proposal for the orderly hearing of the outstanding motions, Mr.
Hardy simply rehashes submissions previously made to the Court. He also gives notice
of his intention to file up to a dozen new motions depending on the outcome of
the existing motions.
[12]
Another
letter was received from Mr. Hardy on May 4, 2012. Mr. Hardy writes that “after
further thought”, it seems obvious that the Crown cannot mount a defence to
either proceeding. He suggests that there are only two appropriate actions that
the Court should consider. With respect to the application in T-1299-11, he
submits that the matter should be referred to a judge for immediate judgment.
As for the action in T-1300-11, Mr. Hardy submits that the proceeding should be
ordered to immediate settlement negotiations, and if the negotiations are
unsuccessful, proceed to summary judgment or summary trial.
[13]
The
Applicants in T-1299-11 ignore the fact that default judgment is not available
in proceedings commenced by way of application. The Plaintiffs in T-1300-11
also ignore the fact that Mr. Justice Harrington has explicitly dispensed the
Crown from serving and filing a statement of defence pending further order or
directions of the Court. Further, they remain willfully blind to the
fundamentally different natures of the disparate proceedings, which are
governed by completely different rules.
[14]
A party that is represented by a lay person must
play by the same rules as everyone else. Mr. Justice Harrington
expressed great reservations when he granted Mr. Hardy leave to represent his
mother in these proceedings. He indicated that he feared that Mr. Hardy
would not adequately represent his mother, would use the courtroom as a bully
pulpit, and would be aggravating, “as he lacks the manners and skill of a
trained barrister.” I share the same concerns.
[15]
Mr. Hardy hides behind his pen and closes his eyes to the
serious procedural deficiencies in the material filed on behalf of his family
members. The
time has come for the Court to intervene firmly to prevent the two proceedings
from becoming unduly complicated and completely unmanageable.
[16]
To
begin with, I consider it just and appropriate to direct that no further
motions, other than an appeal of this Order, will be accepted for filing
without leave of the Court.
[17]
The
next logical step would be to dispose of the outstanding motions presently
before the Court. In its motion dated September 27, 2011, the Crown requested
an extension of time to respond to the Plaintiffs/Applicants’ motions for
consolidation of the two proceedings and the Plaintiffs’ motion for summary
judgment in T-1300-11. Mr. Hardy responded by letter dated October 17, 2011
that the Crown’s motion should be disregarded, and that the cases be
consolidated and moved to summary judgment.
[18]
The
facts and issues raised in the application for judicial review and the action
are convoluted and complex. Further, by filing a joint motion record, the
Plaintiffs/Applicants have conflated or confused the two separate and
procedurally different proceedings. In the circumstances, in order to properly
dispose of the Plaintiffs/Applicants’ outstanding motions, the Court would
benefit from the Crown’s submissions. An extension of time will accordingly be
granted to the Crown to serve and file a separate responding motion record in
each proceeding.