Date: 20020424
Neutral citation: 2002 FCT 461
BETWEEN:
ARTHUR FROOM
Plaintiff
and
HER MAJESTY THE QUEEN and
THE MINISTER OF JUSTICE
Defendants
(An expanded and edited version of
reasons given orally from the Bench)
[1] By motion filed the 19th of February, 2002, the plaintiff seeks, along with other relief, the following:
... an order setting aside, quashing or amending the ("ORDER") aka ("order of directions") or ("directions") which [THE ORDER] made in this action on February 8, 2002 by Roger R. Lafrenière, Esq., Prothonotary, where by: -
- he granted leave to the defendants to bring a motion to strike this action on at the General Sittings in Toronto on Monday, February 25, 2002;
- he required the defendant's motions records to be served and filed no later than February 15, 2002; and
- he required the plaintiff's motion record to be served and filed no later than February 21, 2002. [Reproduced as in the original.]
[2] By motion filed the 17th of April, 2002, the plaintiff seeks some eleven other substantive reliefs, an order for costs and such further order as this Court deems proper as well as such other relief as the plaintiff requests and the Court deems just.
[3] In responding materials filed the 19th of April, 2002, the defendants seek an order pursuant to Rules 383 and 384 of the Federal Court Rules, 1998[1] (the "Rules") to have this action proceed as a specially managed proceeding.
[4] The plaintiff's motions came on before me for hearing on a regular motions day at Toronto on Monday, the 22nd of April, 2002. Only the claim for relief cited above was dealt with and these reasons relate only to that claimed relief. All other claimed reliefs were adjourned to a hearing before me at Toronto at 3:00 p.m. on Thursday, the 25th of April, 2002.
[5] The substance of the impugned direction referred to in the requested relief quoted earlier in these reasons is in the following terms:
The Defendants in Court File Nos T-2040-01 and T-2024-01 are hereby granted leave to bring a motion to strike the actions made returnable at the General Sittings in Toronto on Monday, February 25, 2002. The Defendants' motion records shall be served and filed no later than February 15, 2002. The Plaintiff's responding motion records shall be served and filed no later than February 21, 2002.
The schedule fixed by Prothonotary Lafrenière has been substantially modified since the direction originally issued.
[6] The wording of the direction is perhaps unfortunate in light of the request by letter from counsel for the defendants to the Court that led to the direction. I note in passing that the request for the direction was copied to counsel for Mr. Froom on the judicial review matter.
[7] The request reads, in part, as follows: "The purpose of this letter is to request the court to select a date for hearing argument on two motions which we intend to bring in these proceedings." I emphasise that the request nowhere refers to leave to bring the motions and nowhere requests leave to bring the motions.
[8] The request goes on to indicate that draft notices of motion are attached, and it is of significance for the purpose of these reasons that each draft motion indicates that in the alternative, an order extending time for the defendant or respondent to file a statement of defence or reply submissions, as appropriate, is requested.
[9] I indicated that the wording of the direction is perhaps unfortunate because it is capable, in my view, of two interpretations: one as being a direction that grants leave as well as fixing return dates and filing dates; the other as being nothing more than a grant of leave to have the motions heard on a particular day and fixing the hearing date. It is only the latter interpretation that is consistent with the request.
[10] The reference to leave in the direction, I am satisfied, refers only to the hearing date, not to leave to bring the motions themselves. If it were otherwise, the plaintiff's case would be stronger. But I am satisfied that the interpretation which I now give to the direction is the only one that is consistent with its context.
[11] Counsel for the plaintiff, the applicant on this motion, raised four arguments with respect to the impugned direction.
[12] The first is that a party cannot take any step such as filing a motion to strike when it is in default under the Rules. It must first seek to remedy the default, and if it is successful in so doing, it can then proceed to further steps. I reject this argument and do not believe that the Gap Rule, Rule 4, comes into play.
[13] I turn, rather, to Rule 3 as an aid to the interpretation of Rule 8. Rule 8(1) provides that "On motion, the Court may extend or abridge a period provided by these Rules..." Rule 8(2) provides that "a motion for an extension of time may be brought before or after the end of the period sought to be extended."
[14] Nothing in Rule 8, or in any other Rule to which counsel has directed my attention, tells me that until such an extension is obtained, no further step can be taken, and I am satisfied that such an interpretation is inconsistent with Rule 3 which provides that the Rules should be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
[15] Clearly, where a party is in default, as here in filing a statement of defence, and is also anxious to challenge the validity of the document instituting the proceeding, the most expeditious and least expensive method of proceeding to a determination on the merits is to join together a motion to strike and, in the alternative, a motion for an extension of time. The motion for an extension of time becomes moot if the motion to strike is successful.
[16] Why should two separate motions, two separate motion records and, two separate appearances be required, when all can be accomplished in one motion and appearance? My concerns, and the interpretation I adopt, are entirely consistent with what the defendants, the respondents on this motion, sought from the court when they applied for an early hearing of motions to strike and in the alternative, to extend time. I am satisfied that the procedure proposed by the defendants and endorsed by the learned Prothonotary was entirely open.
[17] The second argument presented on behalf of the plaintiff is that the impugned direction was made simply on the basis of a letter supported by a draft motion without any formal opportunity for submissions by or on behalf of the plaintiff. That procedure is entirely consistent with Rule 35 which provides that special hearing dates before a Judge of the Trial Division or a Prothonotary may be obtained by an informal request to the Judicial Administrator in the Office of the Associate Chief Justice. Of course, it was not the Judicial Administrator who here directed the special date.
[18] Once again I turn to Rule 3 and to the standard practice of this Court, which is for the Judicial Administrator, to informally delegate to the individual who will be hearing a motion the responsibility for fixing a date that is convenient to the parties and to herself or himself. That is what, directly or indirectly, formally or informally, I assume, has happened here. It is a practice that makes sense particularly in a busy office like the office of the court in Toronto, and particularly in circumstances where the matter is within the jurisdiction of a Prothonotary and the Prothonotary, as here, has a remarkably busy schedule and a close working relationship with many counsel in the community.
[19] The third argument presented on behalf of the plaintiff relates to the question of the authority of a Prothonotary to issue directions such as that here at issue. The answer for that, I think, is clear, and that is in Rule 47. Fixing of hearing dates, and as I have earlier indicated, that is all I regard this direction as going to, is clearly a discretionary power of the Court under the Rules. Rule 47(1) provides that such a discretionary power "... may be exercised by the Court of its own initiative..." and in that context "Court" includes a Prothonotary[2].
[20] Finally, the issue of the jurisdiction of a Prothonotary where a liberty interest of a person is at stake was raised on behalf of the plaintiff. First, if we turn to Rule 50(1)(f), I determine it to be clear that that Rule speaks only to motions and resulting orders by a Prothonotary, and I am satisfied that we are here dealing not with a motion and an order, but with a direction in the proper sense of that term, given in response to an informal request.
[21] I adopt the views of the learned Prothonotary expressed in directions dated the 19th of March, 2002 on this file where he wrote: "... Directions of the Court are neither orders, nor judgments, but rather guiding instructions for taking procedural steps..."
[22] If I were found to be wrong and it were determined that what we are in fact dealing with here is an order, I would nonetheless conclude that the liberty interest of a person that might be said to be here at issue is so remote from the direction or order in question as not to invoke the exception to a Prothonotary's authority provided in Rule 50(1)(f).
[23] In the result, I determine not to strike the direction of the 8th of February, 2002. An Order will go accordingly.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
April 24, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2040-01
STYLE OF CAUSE: ARTHUR FROOM
Plaintiff
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF JUSTICE
Defendants
DATE OF HEARING: MONDAY, APRIL 22, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: WEDNESDAY, APRIL 24, 2002
APPEARANCES BY: Mr. Lorne Waldman
For the Plaintiff
Ms. Lara Spiers
For the Defendants
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.
Toronto, Ontario
M4P 1L3
For the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendants
FEDERAL COURT OF CANADA
Date: 20020424
Docket: T-2040-01
BETWEEN:
ARTHUR FROOM
Plaintiff
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF JUSTICE
Defendants
REASONS FOR ORDER