Date: 20040216
Docket: T-1049-95
Citation: 2004 FC 238
BETWEEN:
TREVOR NICHOLAS CONSTRUCTION CO. LIMITED
Plaintiff
and
HER MAJESTY THE QUEEN as represented by
THE MINISTER FOR PUBLIC WORKS CANADA
Defendant
[1] By amended motion dated the 29th of December, 2003, and filed the 21st of January, 2004 the Plaintiff seeks the following relief:
1. An Order setting aside or varying the Orders of Prothonotary Martha Milczynski dated December 19, 2003 and granting the relief requested by the Plaintiff;
2. An order extending time for bringing the Motion, if necessary.
3. Costs of the Motion.
[2] The Orders of Prothonotary Milczynski: dismissed a motion on behalf of the Plaintiff for an Order striking the Statement of Defence or, alternatively, directing the Defendant's representative to re-attend at his own expense to answer certain questions on examination for discovery and further follow-up questions relating to another question on the examination for discovery, and finally for costs of the "aborted examination" and of the motion on a solicitor and client basis, payable forthwith; and further, granted a motion on behalf of the Defendant, and declared that the examination for discovery of the representative of the Defendant is completed and awarded fixed costs payable by the Plaintiff, forthwith.
[3] In fact, the Plaintiff's motion is in appeal of the Orders of Prothonotary Milczynski and was treated at hearing as brought pursuant to Rule 51 of the Federal Court Rules, 1998[1] (the "Rules").
BACKGROUND
[4] This action has a long and convoluted history. For sometime, it has been case managed by Justice Hugessen with Prothonotary Lafrenière appointed to assist in the case management. Recent controversy has centred around the examination for discovery of the Defendant's representative. That examination for discovery process has led to orders of the then Associate Chief Justice, dated the 3rd of May, 2001, of Prothonotary Lafrenière dated the 23rd of July, 2002 and of Justice O'Keefe dated the 3rd of March, 2003, the last of such Orders being accompanied by reasonably extensive reasons.
[5] The last attendance of the Defendant's representative for examination for discovery, with the representative having counsel in attendance with him, took place on the 24th of June, 2003. It concluded, if that is an appropriate term, with Defendant's counsel and representative walking out on the session well before, at least in the eyes of the Plaintiff, it was completed. It was the events of the 24th of June, 2003 that led to the motions that were before Prothonotary Milczynski.
THE ORDERS AT ISSUE
[6] In the Order dismissing the Plaintiff's motion that was before her, Prothonotary Milczynski incorporated the following paragraphs:
The questions that were required to be answered by Order of Prothonotary Lafrenière dated July 23, 2003 [should be 2002] and by Order of Mr. Justice O'Keefe dated March 3, 2003 have been answered, including appropriate follow up questions.
The questions that the Plaintiff seeks to characterise as follow up or otherwise appropriate to be answered were properly refused by the representative of the Defendant. Clearly, those questions relate to the payment made by the Respondent to the Plaintiff in the amount of $ 117,000.00 to settle other and unrelated litigation, and which questions and line of questioning the Plaintiff is prohibited from pursuing as it is irrelevant. This line of questioning was virtually the only line of questioning, however, that the Plaintiff pursued on the continuation of the examination of Mr. Grossi. There is also no suggestion that there are any proper questions that would warrant the continuation of the examination for discovery of the Defendant. The Defendant, in these circumstances, was fully entitled to terminate the examination.
[7] Equivalent paragraphs were included in Prothonotary Milczynski's Order on the Defendant's motion.
THE ISSUES
[8] At hearing before me, the Plaintiff's representative focussed on two issue questions, those being: first, whether Prothonotary Milczynski acted without jurisdiction in dealing with the Rule 369 motions giving rise to the Orders in question; and secondly, whether or not Prothonotary Milczynski erred in granting the Orders that she did.
[9] The second issue question raised on behalf of the Plaintiff highlights the further issue of the appropriate standard to be applied by a judge of this Court on an appeal of the Orders in issue.
ANALYSIS
a) The jurisdiction of Prothonotary Milczynski
[10] As earlier noted in these reasons, Justice Hugessen has been appointed to case manage this action and Prothonotary Lafrenière has been appointed to assist Justice Hugessen. Rule 385(1) provides that a Case Management Judge, or a Prothonotary assigned to assist, shall deal with all matters that arise prior to the trial or hearing of the specially managed proceeding in relation to which he or she was appointed. On the basis of this seemingly "mandatory" Rule, the Plaintiff's representative urged that Prothonotary Milczynski, not having been appointed to assist the Case Management Judge in this matter, lacked jurisdiction to deal with the motions leading to the Orders here under appeal.
[11] In support of his position, the Plaintiff's representative cited an order in this action of Justice Rothstein, then of the Trial Division of the Federal Court of Canada, dated the 3rd of November, 1998, which the Plaintiff's representative urged implies that no judge other than the Case Management Judge and no Prothonotary other than the Prothonotary assigned to assist the Case Management Judge may deal with motions such as those that were before Prothonotary Milczynski. I reject the implication drawn by the Plaintiff's representative from that Order. Further, the Plaintiff's representative relied on Toronto-Dominion Bank v. Berthin[2] where Justice Dunnet, relying on Rule 3.01 of the Ontario Rules of Civil Procedure, as it then read relating to case management under the Toronto Civil Case Management Project and providing a similar "mandatory" role for a case management judge, wrote:
On the basis of these rules, it is clear that once a case is assigned to Case Management in Toronto, the Case Management Judge must deal with all matters that arise in the action before Trial. In this case Fedak J. was not assigned as a substitute case management judge; therefore, I find the Orders of Fedak J. were made without jurisdiction.
[12] I reach a different conclusion than that reached by Justice Dunnet. The Ontario Rule there at issue apparently applied to an early Case Management project in Toronto. This Court's Rules dealing with case management apply throughout Canada.
[13] All judges of this Court are required to reside in or close to the National Capital Region. The Court currently has prothonotaries resident only in Ottawa, Montreal, Toronto and Vancouver. The Court sits throughout Canada. Case management is intended to facilitate the work of the Court rather than to place it in a straight-jacket. Thus, it is important that all judges and prothonotaries of the Court have the jurisdiction and the flexibility to ensure that the work of the Court is carried forward in the most efficient and effective manner that is practicable. I simply cannot conceive that Rule 385 was intended to limit the flexibility of the Court. Further, I find it hard to believe that the Rules which confer jurisdiction on prothonotaries on the one hand, would purport to take away some of such jurisdiction in case management situations. Further again, I find it even less likely that, by the Rules, the jurisdiction of judges who are not designated to case manage a particular matter where another judge has been so designated, would have their jurisdiction which is conferred by Act of Parliament restricted by the Rules. The latter possibility would make no sense, and further, would likely be beyond the jurisdiction of those who purport to make the Rules of the Court.
[14] In the result, I reject the argument as to jurisdiction advanced on behalf of the Plaintiff and find that Prothonotary Milczynski had the jurisdiction to make the Orders here at issue not-withstanding the seemingly mandatory language of Rule 385(1). I interpret Rule 385(1) as imposing a mandatory obligation on case management judges and prothonotaries to deal with all matter that arise prior to trial or hearing and that come before them. I do not read that rule as eliminating jurisdiction of other judges and prothonotaries on such matters that come before them when it would facilitate the work of the Court for them to deal with those matters. Such was the case in the matter here at issue.
b) Standard of Review on Appeal
[15] In Canada v. Aqua-Gem Investments Ltd.[3], Justice MacGuigan, for the majority, determined that discretionary Orders of prothonotaries ought not to be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of discretion was based upon a wrong principle or a misapprehension of the facts, or where they raise questions vital to the final issue of the case. Justice MacGuigan went on to indicate that, where an Order of a prothonotary is clearly wrong in the sense just referred to, or raises a question vital to the final issue of the case, the reviewing judge should exercise his or her discretion de novo.
[16] The foregoing test was cited, apparently with approval, by the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU-Line N.V.[4].
[17] On the facts of this matter and the argument presented before me, I have no doubt that the Orders of Prothonotary Milczynski that are here under appeal do not go to a question vital to the final issue of the case. Similarly, I find no basis on which to conclude that Prothonotary Milczynski exercised her discretion upon a wrong principle as that expression was elaborated upon by Justice MacGuigan in Aqua-Gem. There remains then, only the question of whether Prothonotary Milczynski exercised her discretion on a misapprehension of the facts that were before her. If the answer to that issue is no, then the Orders under appeal ought not to be disturbed.
c) An exercise of discretion based on a misapprehension of the facts
[18] The representative of the Plaintiff who appeared before the Court urged at some length that Prothonotary Milczynski misapprehended the facts underlying the motions that were before her. If such were the case, I would not find it particularly surprising given the extensive and convoluted history of this action, to which I have earlier referred. But I find no basis on which to conclude that Prothonotary Milczynski misapprehended the facts before her. Her conclusion that the questions required to be answered by Orders of Prothonotary Lafrenière and Justice O'Keefe, earlier referred to, have been answered, including appropriate follow-up questions, was, I am satisfied, reasonably open to her as was her conclusion on the facts that questions that the Plaintiff sought to characterise as follow-up or otherwise appropriate were properly refused. I reach the same conclusion with regard to the learned Prothonotary's conclusion that the Defendant was, in all of the circumstances related to the re-attendance of the Defendant's representative at the continued examination for discovery on the 24th of June, 2003, "...fully entitled to terminate the examination".
[19] In the result, I find no basis on which to disturb the discretionary Orders of Prothonotary Milczynski that are here under appeal.
CONCLUSION
[20] Based on the foregoing brief analysis, this appeal by way of motion will be dismissed.
COSTS
[21] The Defendant seeks costs of this appeal fixed in the amount of $ 300.00 and payable forthwith. In the Order here under appeal declaring the discovery of the Defendant's representative to have been completed, Prothonotary Milczynski addressed the question of costs in favour of the Defendant. She wrote:
The Plaintiff's conduct in repeatedly attempting to ask questions that relate to the settlement of earlier litigation between the parties is abusive in respect of the examination for discovery and the process of this Court.
[22] I am satisfied that the same might be said of the Plaintiff's conduct in bringing this appeal in an attempt to further prolong the examination for discovery of the Defendant's representative. On the Order just cited, Prothonotary Milczynski awarded the Defendant costs in a lump sum and provided that such costs should be payable forthwith by the Plaintiff. I conclude that an equivalent result is appropriate in respect of this appeal. In the result, an Order will go awarding the Defendant costs fixed at $ 300.00 and such costs will be made payable by the Plaintiff, forthwith.
_________________________
J.F.C.
Ottawa, Ontario
February 16, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1049-95
STYLE OF CAUSE: TREVOR NICHOLAS CONSTRUCTION CO.
LIMITED
Applicant
and
HER MAJESTY THE QUEEN as represented by
THE MINISTER FOR PUBLIC WORKS CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 2, 2004
REASONS FOR ORDER
AND ORDER BY: GIBSON, J.
APPEARANCES BY:
Mr. John Susin For the Applicant
Mr. Chris Parke For the Respondent
SOLICITORS OF RECORD:
John Susin
Niagara Falls, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
[1] SOR/98-106.
[2][1992] O.J. No. 1589 (Q.L.), (O.C.J.G.D.).
[3] [1993] 2 F.C. 425 (C.A.).
[4] [2003] 1 S.C.R. 450 at para. 18.