Hossain v. Canada, 2005 FCA 133

Date: 20050415

Docket: A-404-04

Citation: 2005 FCA 133

CORAM:        ROTHSTEIN J.A.

SHARLOW J.A.

PELLETIER J.A.

BETWEEN:

                                                              JABED HOSSAIN

                                                                                                                                              Appellant

                                                                           and

HER MAJESTY THE QUEEN

                                                                                                                                          Respondent

                                             Heard at Ottawa, Ontario, on April 6, 2005.

                                  Judgment delivered at Ottawa, Ontario, on April 15, 2005.

REASONS FOR JUDGMENT BY:                                                                    PELLETIER J.A.

CONCURRED IN BY:                                                                                       ROTHSTEIN J.A.

                                                                                                                                SHARLOW J.A.

                                                                                                                                  Date: 20050415

                                                                                                                              Docket: A-404-04

                                                                                                                     Citation: 2005 FCA 133

CORAM:        ROTHSTEIN J.A.

SHARLOW J.A.                          

PELLETIER J.A.

BETWEEN:

                                                              JABED HOSSAIN

                                                                                                                                              Appellant

                                                                           and

HER MAJESTY THE QUEEN

                                                                                                                                          Respondent

                                                    REASONS FOR JUDGMENT

PELLETIER J.A.

[1]                Mr. Hossain appeals from the decision of Shore J. affirming the decision of Tabib P. to strike Mr. Hossain's claim because he did not comply with a peremptory order to file his requisition for pre-trial conference. Mr. Hossain was originally ordered to file his requisition for pre-trial conference on January 6, 2004. He responded by bringing a motion seeking an exemption from the filing fee. His request for an exemption was refused and he was ordered to file his requisition prior to March 31, 2004. This date was extended to April 23, 2004, at Mr. Hossain's request but on condition that his action would be dismissed without further notice if he did not comply. Mr. Hossain brought yet another motion seeking an exemption. This was refused, again, but the filing date was extended peremptorily to June 8, 2004, on the understanding that the failure to comply would result in dismissal.

[2]                Mr. Hossain then filed a requisition for pre-trial conference but without tendering the filing fee, and brought a motion seeking a reconsideration of his last motion for an exemption. The prothonotary dismissed this application. As a result, the requisition for pre-trial conference which had been filed without the filing fee was rejected. As it was now June 24, 2004, and, since no requisition for pre-trial conference had been filed, the prothonotary also dismissed Mr. Hossain's claim. Mr. Hossain appealed from the prothonotary's refusal to reconsider her earlier decision with respect to the exemption. Mr. Justice Shore heard that application and dismissed it. Mr. Hossain then brought the present appeal.

[3]                As the procedural history which I have set out makes clear, Mr. Hussain was given numerous opportunities to file his requisition for pre-trial conference (together with the appropriate fee) and equally numerous warnings as to what would happen if he did not do so. In light of those circumstances, the judge's decision affirming the prothonotary's refusal to reconsider her earlier decision was eminently reasonable, and does not call for our intervention.

[4]                The appeal is dismissed. As costs were not requested, none are awarded.

                                                                                                                             J.A.

"I agree

   Marshall Rothstein J.A."

"I agree

   K. Sharlow J.A."

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                      A-404-04

STYLE OF CAUSE:                             JABED HOSSAIN v. HER MAJESTY THE QUEEN

APPEAL FROM AN ORDER OF SHORE, J. DATED JULY 22, 2004, FILE NO. T-1877-01

PLACE OF HEARING:                                OTTAWA, ONTARIO

DATE OF HEARING:                                  APRIL 6, 2005

REASONS FOR JUDGMENT OF THE COURT:                                               PELLETIER J.A.

CONCURRED IN BY:                                                                                          ROTHSTEIN J.A.

                                                                                                                                  SHARLOW J.A.

DATED:                                                          APRIL 15, 2005

APPEARANCES:

Mr. Jabed Hossain                                            ON HIS OWN BEHALF

Ms. Marie Crowley                                          FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.                                          FOR THE RESPONDENT

Deputy Attorney General of Canada