Docket: T-1813-14
Citation:
2017 FC 310
[ENGLISH
TRANSLATION]
Ottawa, Ontario, March 27, 2017
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN
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LÉOPOLD CAMILLE
YODJEU NTEMDE
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Applicant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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ORDER AND REASONS
I.
Overview
[1]
The applicant filed a motion under rule 359 of
the Federal Court Rules, SOR/98-106 [the Rules] to appeal the
decision by Prothonotary Morneau on November 2, 2016, in which he ordered that
the examinations for discovery and a large part of the applicant’s
cross-examinations on the affidavits used for the respondent’s motion for
summary judgment be struck.
II.
Facts
[2]
The events that led to this motion are as
follows: On August 22, 2014, the applicant filed an action for the harm he
allegedly suffered following Citizenship and Immigration Canada’s rejection of
his wife and daughter’s permanent residency applications (his wife’s
application was accepted later on June 30, 2014). Chief Justice Crampton
assigned Prothonotary Morneau as case management judge. On February 4, 2016,
Prothonotary Morneau adopted the timeline agreed upon by both parties, which
stipulated that the pre-trial conference record would be submitted before May
31, 2016.
[3]
On May 17, 2016, the respondent informed this
Court and the applicant that she planned on filing a motion for summary
judgment. On May 24, 2016, the applicant filed his requisition for a pre-trial
conference, in which he confirmed that [TRANSLATION]
“all the examinations for discovery that the applicant
intends to hold are complete”. On July 5, 2016, the respondent filed and
served her motion for summary judgment. On October 7 and 11, 2016, the
applicant sent four examinations for discovery to the respondent, despite the
fact that he had attested under rule 258(2) that they were complete. On October
12, 2016, the applicant sent five cross-examinations on the affidavits used for
the application for summary judgment. Prothonotary Morneau struck the
examinations for discovery and a large part of the five cross-examinations of the
respondent’s affidavits.
III.
Issues and standard of review
[4]
The applicant argues that Prothonotary Morneau’s
decision to strike his examinations for discovery is not reasonable. He also
challenges the fact that Prothonotary Morneau struck a large part of the five
cross-examinations.
[5]
As noted by the respondent, the applicable
standard of review for the Prothonotary’s findings of fact is that of palpable
and overriding error (Hospira Healthcare Corporation v. Kennedy Institute of
Rheumatology, 2016 FCA 215 [Hospira]). For issues of law and issues
of mixed law and fact, this is the correctness standard (Hospira, supra,
at para 66).
IV.
Analysis
[6]
The applicant argues that Prothonotary Morneau’s
decision is not correct because it amounts to “procedural
unfairness” and “natural injustice”. He
claims that Prothonotary Morneau erred in applying rule 258(2). He argues that
the respondent had [translation] “already expressly and
in a premediated manner contravened that very rule when [she] refused to
provide periods of availability for the pre-trial conference”. Rule
258(2) stipulates that:
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(2) A
requisition for a pre-trial conference shall be in Form 258 and include a
certification by the solicitor of record that
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(2) La demande de conférence
préparatoire est établie selon la formule 258 et comporte une attestation de
l’avocat de la partie portant que :
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a) all examinations for discovery that
the party intends to conduct have been completed;
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(a) and tous les interrogatoires
préalables qu’entend tenir la partie sont terminés;
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[My emphasis.]
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[Je souligne.]
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[7]
Therefore, the applicant, when he filed his
requisition for a pre-trial conference on May 24, 2016, attested that all the
examinations for discovery were complete. Then, exhibits T, U, and V in the
applicant’s file show why the respondent did not share her availability: she
was first waiting to clarify whether the applicant intended to include his wife
and daughter in the case. Finally, as noted by the respondent, the applicant
was ready to go to trial when he filed his requisition for a pre-trial
conference on May 24, 2016. Consequently, I do not see how her filing a motion
for summary judgment later had an effect on the status of the examinations for
discovery. It was reasonable for Prothonotary Morneau to rely on rule 258(2) to
strike the applicant’s examinations for discovery. I do not see any palpable or
overriding errors in the facts, nor any error in law on his part.
[8]
The applicant also challenges the Prothonotary’s
striking of a large part of the five cross-examinations dated October 12, 2016.
Prothonotary Morneau found that the cross-examinations did not comply with rule
99, which stipulates that questions must be concise and separately numbered.
After having read the cross-examinations, I cannot find a palpable or overriding
error by Prothonotary Morneau. Indeed, the questions came with lengthy
premises, and Prothonotary Morneau still prepared a list of questions that must
be answered by the respondent at paragraph 19 of his decision.
V.
Conclusion
[9]
For the foregoing reasons, I dismiss the
applicant’s motion for appeal with costs, which are set at $1,500.
ORDER
THE COURT’S JUDGMENT is that the applicant’s
motion for appeal be dismissed with costs, which are set at $1,500, payable by
the applicant to the respondent.
“B. Richard Bell”
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