Date: 20031219
Docket: A-383-00
Citation: 2203 FCA 486
Present: DESJARDINS J.A.
DÉCARY J.A.
EVANS J.A.
BETWEEN:
JEANNINE MORIN, personally, and on behalf of a class
of persons having the same interest, which class is more particularly
described in Appendix "A", of the Statement of Claim
Appellants
and
HER MAJESTY THE QUEEN
Respondent
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, on December 19, 2003.
REASONS FOR ORDER BY: EVANS J.A.
CONCURRED IN BY: DESJARDINS J.A.
DÉCARY J.A.
Date: 20031219
Docket: A-383-00
Citation: 2003 FCA 486
Present: DESJARDINS J.A.
DÉCARY J.A.
EVANS J.A.
BETWEEN:
JEANNINE MORIN, personally, and on behalf of a class
of persons having the same interest, which class is more particularly
described in Appendix "A", of the Statement of Claim
Appellants
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
EVANS J.A.
[1] The Crown, the respondent in this appeal, has made a motion pursuant to rule 369 of the Federal Court Rules, 1998, requesting that Jeannine Morin's appeal be dismissed on the ground that it is an abuse of process. The appeal arises from an action brought by Ms. Morin personally and on behalf of a class of persons having the same interest. The action concerns the determination of the fair market value of Indian reserve lands surrendered for leasing purposes.
[2] A motion to determine a preliminary question of law pursuant to rule 220 relating to this action was heard by Heneghan J. pursuant to an order of Hugessen J., dated April 17, 2000. The question was whether the Tenant Protection Act, 1997, S.O. 1997, applied to the leases. In reasons for judgment issued on June 29, 2000, Heneghan J. held that it did not. A notice of appeal was filed on July 25, 2000, by the lawyer who was then representing Ms. Morin, who is not the lawyer now acting for her on this motion.
[3] Negligible progress was made in advancing the appeal and several requests for extensions of time were made, and granted. The difficulty seems to have been that the appellant lacked the funds necessary to instruct counsel. However, in October 2001 a test case funding agreement respecting Ms. Morin's action was approved by the Department of Indian Affairs and Northern Development, and signed by the then counsel for the appellant. Nonetheless, no further steps had been taken in the appeal by February 10, 2003, when Strayer J.A. granted the appellant an extension of time to file an appeal book, but indicated that further delays would be regarded as an abuse of the process of the Court and would not be acceptable.
[4] Meanwhile, the trial of the action had been conducted by Dawson J. and reasons for judgment had been issued on December 18, 2002. The reasons proceeded on the basis that, in accordance with the decision of Heneghan J. on the preliminary question of law, the Ontario Tenant Protection Act did not apply to the leases in question.
[5] The Crown now submits that, since the main action has been denied on the assumption that the Ontario legislation did not apply to the leases, it would be an abuse of process to permit the appeal against Heneghan J.'s determination of the preliminary question to proceed. The Crown argues that the appeal is an abuse of process for the following reasons.
[6] First, the preliminary question of law decided by Heneghan J. was res judicata when Dawson J. rendered her decision in the action: to allow the appeal from Heneghan J. to proceed would constitute a collateral attack on the order of Dawson J. Second, by proceeding to the trial of the action when the appeal from the decision of Heneghan J. was pending, the appellant was trying to obtain a more favourable result, while still retaining the right to pursue the appeal against the determination of the preliminary question of law. Third, to allow the appeal to proceed would potentially result in the waste of judicial resources and cause the Crown to incur considerable costs, because, if the appeal were successful, the action would have to be retried.
[7] In response, counsel for Ms. Morin makes three submissions. First, since the Court "split" the case, it would be unfair now to deny the appellant her rights of appeal against each decision. I do not agree. An order that a preliminary question of law be determined is not the same as "splitting" a case between liability and remedy. In any event, the appellant could have delayed the trial until the appeal was heard. Indeed, if the appellant had proceeded with the appeal in a more timely fashion, it might not have been necessary to delay the trial at all in order to await the outcome of the appeal against Heneghan J.'s decision.
[8] Second, the lawyer then representing the appellant was subject to two periods of administrative suspension by the Law Society of Upper Canada: from June 28 to December 13, 2001, and from June 21 to June 26, 2002. However, there is no indication that the suspension was relevant to the lawyer's ability to represent the appellant in a competent manner. In fact, it is clear from correspondence that he was very aware of the danger that, if the appeal did not proceed promptly, it might be made moot by the trial of the main action. I do not find the appellant's argument persuasive.
[9] Third, the appellant submits that, by consenting to certain extensions of time requested by the appellant, the Crown was estopped from bringing this motion to dismiss the appeal. I do not agree. No authority was produced for the proposition that consenting to an extension of time estops a party from subsequently arguing that the proceeding should be dismissed as an abuse of process. If the appellant's argument were correct, parties would likely be discouraged from consenting to requests for an extension of time lest they find that they had thereby prejudiced their ability to assert an unrelated right in the matter. This would tend unduly to clog the litigation process.
[10] For these reasons, the Crown's motion should be granted and the appeal should be dismissed as an abuse of process.
"John M. Evans"
J.A.
"AD"
"RD"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-383-00
STYLE OF CAUSE: JEANNINE MORIN, personally, and on behalf of a class of persons having the same interest, which class is more particularly described in Appendix "A", of the Statement of Claim v. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: EVANS J.A.
CONCURRED IN BY: DESJARDINS and DÉCARY JJ.A.
DATED: DECEMBER 19, 2003
WRITTEN REPRESENTATIONS BY:
Mr. Ian N. McLean FOR THE APPELLANT
Mr. Gary Penner FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Ian N. McLean FOR THE APPELLANT
D'Agostino & Associates
North Bay, Ontario
Morris Rosenburg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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