Date: 19990115
Docket: T-1803-91
BETWEEN:
SAIRA PERVEZ, SAIMA PERVEZ, BOBBER PERVEZ,
SAMRA PERVEZ, SOFIA PERVEZ, minors, by their
Litigation Guardian, Durdana Pervez,
DURDANA PERVEZ, personally, and ARSHAD PERVEZ
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER and ORDER
HUGESSEN J.
[1] On September 18, 1998, on a status review, Prothonotary Giles ordered that this matter continue as a specially managed proceeding. It is apparent from his Order that he was aware that nothing substantive had been done to move the matter forward since 1991 and that the purpose of his allowing the matter to continue at all was "to allow the apparently necessary motions to be heard". To this end, his Order specified as follows:
| Any motion to strike, to dismiss, for default judgment, for particulars, for leave to file a defence or for leave to amend should be brought within one month. |
[2] By Order of the Associate Chief Justice, I have been appointed case-management judge.
[3] Nothing was done within one month of Prothonotary Giles" Order.
[4] An amended statement of claim was filed November 9, 1998, followed three days later by a notice of change of solicitors. On December 29, 1998, I issued a show-cause Order requiring the plaintiffs to show cause why this action should not be dismissed for failure to take any step within the time fixed by the Order of September 18, 1998..
[5] The operative part of counsel"s written submissions in reply to that Order reads as follows:
| Counsel for the defendants and I discussed the fact that we intended to move for leave to amend the Statement of Claim herein, and the necessity for this, in view of Mr. Giles" order. It became evident that Counsel had served a defence, but the same had never been filed, as noted by Mr. Giles. It was determined that in the circumstances a motion was not required for leave to amend (Rule 200) as technically the Defendants had not plead [sic] o the claim. |
| An amended Statement of Claim, with fairly extensive amendments was served on November 6th, 1998. Counsel for the Defendants had indicated that she would not require strict adherence to Mr. Giles" order in that the amendments were being done without motion and his order contemplated the bringing of a motion, not dealing with the matter by way of consent |
[6] This is manifestly unacceptable. If counsel thought that it was not "necessary" to move for leave to amend, or that "strict adherence" to the time limits was not required, they should have sought to vary the Order or to extend time. They did neither.
[7] The Order of September 18, 1998, was an Order of the Court. The time period fixed in that Order could not be varied by consent. It is clear that the Order required counsel to move with great diligence in a matter which had been languishing for years and which by rights could properly have been dismissed on the status review.
[8] The Order"s clear purpose was to have steps taken to bring the case into a current status within one month. Counsel"s view as to the correctness of the steps required is nothing to the point. Orders of the Court, unless and until varied or stayed, are to be obeyed. Rightly or wrongly the Order of 18 September, 1998, required that any amendment be by leave upon motion. At the very least, something had to be done within a month. Nothing was. The Order gave plaintiffs a last chance to put things to rights. They failed to take it.
ORDER
The action is dismissed for delay.
"James K. Hugessen"
Judge
OTTAWA, Ontario, Thursday, January 15, 1999.