Date: 20000321
Docket: A-60-99
CORAM: DÉCARY, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
SAIRA PERVEZ, SAMA PERVEZ, BOBBER PERVEZ,
SAMRA PERVEZ, SOFIA PERVEZ, minors, by their
Litigation Guardian, Durdana Pervez,
DURDANA PERVEZ, personally, and ARSHAD PERVEZ
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario on Tuesday, March 21, 2000
Judgment delivered at Toronto, Ontario on Tuesday, March 21, 2000
REASONS FOR JUDGMENT BY: DÉCARY J.A.
Date: 20000321
Docket: A-60-99
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
SAIRA PERVEZ, SAMA PERVEZ, BOBBER PERVEZ,
SAMRA PERVEZ, SOFIA PERVEZ, minors, by their
Litigation Guardian, Durdana Pervez,
DURDANA PERVEZ, personally, and ARSHAD PERVEZ
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario on
Tuesday, March 21, 2000)
DÉCARY J.A.
| _. On September 18, 1998, on a status review made pursuant to Rule 380 of the Federal Court Rules, 1998, Associate Senior Prothonotary Giles made the following order: |
| The plaintiffs now represent that they will be proceeding without delay. The defendant responds that this action should be dismissed for want of prosecution because the defendant is prejudiced as one possible witness has died and one has retired. |
| There is no provision for the Court to entertain further motions before the status review is disposed of. While I am not satisfied that a motion to dismiss would not be successful, I am satisfied that to allow the apparently necessary motions to be heard the proceeding should continue. |
| (1) The proceeding should continue as a specially managed proceeding. |
| (2) Any motion to strike, to dismiss, for default judgment, for particulars, for leave to file a defence or for leave to amend should be brought within one month. |
| _. Six weeks later, on October 29, 1998, the Associate Chief Justice appointed Mr. Justice Hugessen as Case Management Judge in the proceeding, pursuant to Rule 383. |
| _. The record shows that counsel for both parties, upon receiving Mr. Giles" order, were of the view that the most appropriate way to move the proceeding along was for the plaintiffs to file an amended statement of claim and for the defendant to then bring a motion to dismiss the action for delay. Counsel were of the view that since the defendant had yet to file a defence (although it had already been served), an amended statement of claim could be filed without leave. That event was not contemplated by Mr. Giles" timetable. Counsel were also of the view that since the defendant was in default of filing a defence, the defendant was in no position to bring a motion to dismiss the action for delay and should await the filing of the amended statement of claim before doing so. |
| _. On November 6, 1998, an amended statement of claim was served on the defendant and it was filed with the Court on November 9, 1998. |
| _. On December 29, 1998, Hugessen J. ordered the plaintiffs "to show cause ... why this action should not be dismissed for failure to prosecute any step within the 30 day period fixed by Mr. Giles" Order of 18 September 1998." (emphasis in the original). The decision is reported at (1999), 162 F.T.R. 86. |
| _. On January 15, 1999, Hugessen J. found the solution adopted by counsel "manifestly unacceptable". Nothing having been done within a month from Mr. Giles" order, in violation, in his view, of the order, Hugessen J. dismissed the action for delay. |
| _. The Case Management Judge in the circumstances erred in the exercise of his discretion. Mr. Giles" order could certainly bear the interpretation given to it by counsel for both parties. Counsel moved rapidly during the 30 day period to comply with the order. Plaintiffs" only available motion at that stage was to move for judgment by default, a move that would have had very little chance of success. The defendant who, being in default, had been in no position to move for dismissal for delay had found a convenient way to now be in a position to do so. The Case Management Judge himself was not appointed within thirty days of Mr. Giles" order. Both counsel and the Court having interpreted the order, and reasonably so, as not imposing a 30 day deadline for all subsequent steps in the proceeding, it was not open to the Case Management Judge, in fairness for the plaintiffs, to dismiss the action on his own initiative on the basis of his own interpretation of the order. |
| _. In dismissing the action for delay in these circumstances, Hugessen J. was for all practical purposes pre-empting the announced motion by the defendant for dismissal of the action for delay. |
| _. The appeal will therefore be allowed, the order of the Case Management Judge will be set aside and the parties will be placed in the same position that they would have been had no show-cause order issued on December 29, 1998. |
| _. There will be no order as to costs. |
"Robert Décary"
J.F.C.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SAIRA PERVEZ, SAMA PERVEZ, BOBBER PERVEZ, SAMRA PERVEZ, SOFIA PERVEZ, minors, by their Litigation Guardian, Durdana Pervez, DURDANA PERVEZ, personally, and ARSHAD PERVEZ |
HER MAJESTY THE QUEEN
DATE OF HEARING: TUESDAY, MARCH 21, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: DÉCARY J.A. |
Delivered at Toronto, Ontario on
Tuesday, March 21, 2000
APPEARANCES: Mr. Peter Harvey
Ms. Veera Rastogi
| SOLICITORS OF RECORD: Harvey, Cowtan |
| 2200-181 University Ave., |
Deputy Attorney General of Canada
FEDERAL COURT OF APPEAL
Date: 20000321
Docket: A-60-99
BETWEEN:
| SAIRA PERVEZ, SAMA PERVEZ, BOBBER PERVEZ, SAMRA PERVEZ, SOFIA PERVEZ, minors, by their Litigation Guardian, Durdana Pervez, DURDANA PERVEZ, personally, and ARSHAD PERVEZ |
Appellants
Respondent
REASONS FOR JUDGMENT
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