Date: 20100528
Docket: A-41-09
Citation: 2010 FCA 140
CORAM: LÉTOURNEAU J.A.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
RUI BIN XU
Appellant
and
M. MURPHY, OC TRANSPO, S.
FLINT,
SPL. CST. MAKHAL, SPL. CST. BLEECKER,
K. FAHEY, G.
CLARK
Respondents
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa,
Ontario, on May 28, 2010.
REASONS
FOR ORDER BY: PELLETIER
J.A.
CONCURRED
IN BY: LÉTOURNEAU
J.A.
TRUDEL J.A.
Date: 20100528
Docket: A-41-09
Citation: 2010 FCA 140
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
RUI BIN XU
Appellant
and
M. MURPHY, OC TRANSPO, S. FLINT,
SPL. CST. MAKHAL, SPL. CST. BLEECKER,
K. FAHEY, G.
CLARK
Respondents
REASONS FOR ORDER
PELLETIER J.A.
[1]
In
response to a Notice of Status Review, Mr Xu brings this motion for an
extension of time to file an appeal from a decision of the Federal Court. My
Xu filed a Statement of Claim against the Ottawa municipal transit system, known as OC
Transpo, and six of its employees for damages suffered when he was allegedly
assaulted by these employees. The Federal Court dismissed Mr. Xu’s claim
on the ground that the Federal Court lacked jurisdiction over the defendants
and the subject matter of the claim.
[2]
Mr. Xu
appealed from that decision in the time provided by the Rules. As a result, he
does not require leave to do that which he has already done. That, however,
does not dispose of the problem. An appellant who must respond to a Notice of
Status Review must set out the reasons for the delay in proceeding with his
appeal and propose a timetable for the remaining steps to be taken in the
appeal: see Rule 382.3(1) of the Federal Courts Rules, SOR/98-106. In
this case, Mr. Xu has done neither of these things. In fact, he has not taken
the first step to perfect his appeal, namely to settle the contents of the
appeal book, either by agreement or by motion. These omissions are sufficient
ground to dismiss the appeal on the ground of delay.
[3]
Rule
382.4(2) provides that if a judge is not satisfied that a proceeding should
continue, he or she may dismiss the proceeding. Since Mr. Xu has not satisfied
the requirements of Rule 382.3(1), I am not satisfied that the appeal should be
allowed to proceed. I would add that this results in no injustice in that the
appeal is doomed to fail in any event. The Federal Courts have no jurisdiction
over an action in tort between an individual and a municipal agency. OC Transpo
is not the Crown in right of Canada nor is it in any way an agent
of the Crown. Consequently, the right of action against the Crown found at
section 17 of the Federal Courts Act, R.S.C. 1985, c. F-7, and
the enabling provisions of the Crown Liability and Proceedings Act, R.S.C.1985,
c. C-50, are of no assistance to Mr. Xu. He has sued in the wrong court.
[4]
As a
result, I would dismiss Mr. Xu’s notice of motion for an extension of time to
file his notice of appeal and I would dismiss his appeal for delay.
“I
agree.
Gilles Létourneau J.A.”
“I
agree.
Johanne Trudel J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-41-09
STYLE OF CAUSE: RUI
BIN XU and OC TRANSPO. ET AL.
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR ORDER BY: PELLETIER J.A.
CONCURRED
IN BY:
LÉTOURNEAU J.A.
TRUDEL
J.A.
DATED: MAY 28, 2010
WRITTEN REPRESENTATIONS BY:
|
RUI BIN XU
|
FOR THE APPELLANT , ON HIS OWN BEHALF
|
Email this Content