Date: 20001017
Docket: A-138-99
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
DANIEL HÉBERT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
Hearing held at Québec, Quebec on Tuesday, October 17, 2000.
Judgment from the bench at Québec, Quebec on Tuesday, October 17, 2000.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date: 20001017
Docket: A-138-99
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
DANIEL HÉBERT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec, Quebec
on Tuesday, October 17, 2000)
DÉCARY J.A.
[1] Following a status review notice sent by the Court pursuant to Rule 380 of the Federal Court Rules (1998), the motions judge dismissed the action of the plaintiff (the appellant at bar) for delay. In her as yet unreported reasons, the judge simply said that [TRANSLATION] "the reasons given by the plaintiff are not sufficient to explain to the Court his failure to act in prosecuting this case".
[2] The appellant made two arguments. First, he said, the judge did not exercise her discretion judicially as she did not apply the test laid down in Baroud v. Canada (1998), 160 F.T.R. 91. Secondly, he added, Rule 380 should not be applied to delays that occurred before the said rule came into effect, and if it can be, it is then transformed into a rule of substance, which fell outside the jurisdiction of the Rules Committee.
[3] The facts must be briefly reviewed. On October 11, 1994 the appellant filed an action in tort for damages he alleged he suffered while a member of the Canadian Armed Forces.
[4] On January 11, 1995 the respondent moved to suspend the proceedings pursuant to s. 50 of the Federal Court Act ("the Act"), so that the Canadian Pension Commission ("the Commission") could rule on the appellant's eligibility for a pension under the Pensions Act.
[5] On December 20, 1995, after six applications for an adjournment, four of which were made by the respondent, Denault J. ordered the proceedings be stayed [TRANSLATION] "until the Canadian Pension Commission, at the plaintiff's formal request made pursuant to ss. 79 et seq. of the Pensions Act, has ruled on the plaintiff's eligibility for a pension under that Act".
[6] On August 22, 1996 the appellant filed an application for a disability pension. This application was dismissed by Mr. Murray of the Canadian Pensions Service on August 5, 1997. The appellant did not on that date make use of the appeal or review proceedings still available and counsel for the appellant acknowledged at the hearing that he did not intend to do so.
[7] On April 25, 1998 Rule 504 came into effect.
[8] On November 19, 1998 a status review notice was sent to the parties.
[9] On February 24, 1999 the action was dismissed for delay by the judgment a quo.
[10] In our opinion, the first argument made by the appellant is conclusive.
[11] In Baroud, supra, Hugessen J. described the function of a judge responsible for a status review in paras. 4 and 5 of his reasons:
[4] In deciding in what manner to exercise the wide discretion granted 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?
[5] The two questions are clearly inter-related in that if there is a good excuse for the case not having progressed more quickly, the court is not likely to be very exigent in requiring an action plan from the plaintiff. On the other hand, if no good reason is advanced to justify the delay, the plaintiff should be prepared to demonstrate that he recognizes that he has a responsibility to the court to move his action along. Mere declarations of good intent and of the desire to proceed are clearly not enough.
[12] In the case at bar, even assuming, without deciding the point, that the motions judge could reasonably not satisfy herself of the causes of delay cited by the appellant, she should have gone on to the second stage and examined the action plan proposed by the appellant to see whether the plan bore out the appellant's intention to proceed with the action. It is not possible for this Court to conclude from reading the very short reasons that the judge went on to the second stage, so we must do this in her place. We hasten to point out that the judgment in Baroud had only just been rendered and was not brought to the judge's attention by counsel for the parties.
[13] In the written arguments which he submitted in response to the review notice the appellant proposed the following action plan:
[TRANSLATION]
FOR THESE REASONS, MAY IT PLEASE THE COURT TO:
ALLOW the plaintiff's written submissions;
ORDER that the stay be lifted;
ORDER the defendant to file her defence within 30 days of this judgment;
ALTERNATIVELY, ORDER that the matter continue as a specially managed proceeding pursuant to Rules 382(2)(c) and 383 to 385 F.C.R.
[14] There can be no doubt that this plan of action meets the test suggested by Hugessen J. Even if the stay order appears to the Court to have lapsed, the appellant cannot be blamed for seeking to clear up any confusion by asking that it be lifted by the Court, as permitted by s. 50(3) of the Act. Once the order has been lifted, the first proper step to take was the filing of a defence by the defendant.
[15] We do not see what more the appellant could suggest or what better action he could take to move the matter forward, and it should be recalled that the action was stayed at the request of the defendant at a time when the defendant had failed to file her defence.
[16] As the appeal must succeed on the basis of the first argument made by the appellant, it will not be necessary for the Court to rule on the second.
[17] The appeal will therefore be allowed, the judgment of the motions judge reversed and the matter will continue as a specially managed proceeding pursuant to Rule 382(2)(c). The appellant will be entitled to his costs at trial and on appeal.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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FEDERAL COURT OF APPEAL
Date: 20001017
Docket: A-138-99
Between:
DANIEL HÉBERT
Appellant
- AND -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT
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FEDERAL COURT APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: A-138-99
STYLE OF CAUSE: DANIEL HÉBERT
Appellant
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: October 17, 2000
REASONS FOR JUDGMENT
OF THE COURT BY: Décary J.A.
DATED: October 17, 2000
APPEARANCES:
Denis Houle for the appellant
Chantal Sauriol for the respondent
SOLICITORS OF RECORD:
GRONDIN POUDRIER BERNIER
Québec, Quebec for the appellant
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
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