Date: 19990917
Docket: T-1-95
B E T W E E N :
BOURQUE, PIERRE & FILS LTÉE
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario,
Wednesday, June 17, 1998)
HUGESSEN J.
[1] I have before me a motion by the plaintiff for leave to file affidavit evidence in response to the defendant's motion for summary judgment notwithstanding that the plaintiff has already conducted a cross-examination of the affiant to the affidavit filed in support of that motion for summary judgment.
[2] The leave which is presently sought has already been sought and refused (coincidently by myself) in an order rendered December 4, 1997.
[3] The defendant objects to the present motion both on the ground of res judicata and on its merits.
[4] As to res judicata, it is my view that in a purely procedural matter of this sort, and notwithstanding the order already given on December 4, 1997, denying precisely the same relief as is now sought, I retain a residual discretion to grant the leave in question. In my view, there are two conditions to such a grant in these circumstances. First that the ends of justice must imperatively require such a grant and, second, that there has been no irreversible step taken in the meantime as a result of the first order.
[5] While there can be no question that matters have not now gone so far as to be irreversible, thereby making it impossible for me to grant the order sought, the "ends of justice" test calls for more detailed consideration.
[6] In my view, that test requires that I be satisfied affirmatively:
| 1) that the material sought to be produced is relevant and necessary to the determination of the summary judgment motion; |
| 2) that no undue prejudice would be suffered by the responding party, in this case the defendant, and; |
| 3) that the moving party, in this case the plaintiff, has acted with due diligence. |
[7] With respect to the relevance of the material now sought to be produced, there can be no problem. Counsel for the defendant has conceded that the material is mostly relevant. Strictly speaking, however, it is not necessary in that it is quite possible to dispose of the application for summary judgment without such material.
[8] On the question of prejudice, clearly the defendant is entitled to have its motion for summary judgment heard and determined within a reasonable time. That motion has now been pending for over eight months. The plaintiff has been responsible for virtually all of that delay. If the present motion were to be granted, there would necessarily be an adjournment of the summary judgment motion, presently fixed for the day after tomorrow, and it is my view that such adjournment would certainly be of several months duration.
[9] Most critical of all, however, is the fact that, in my view, the plaintiff has not acted in this matter with due diligence, or indeed with any diligence at all.
[10] Plaintiff's present counsel is very free with his criticism of the actions of former counsel which he qualifies as having been negligent. There is, however, in my view, no evidence of negligence on the part of former counsel and, at best, the record presently reveals that former counsel would have made a bad judgment call in a litigation matter. That is a far cry from showing negligence although, of course, it is quite possible that there has been negligence.
[11] More important still, however, present counsel came on the record at the end of January 1998. The December 4, 1997 order was, of course, known at that time and the defendant's motion for summary judgment was then pending and had been set down for hearing at a date very shortly after present counsel came on the record. The motion which I have before me today was only made on May 21, 1998, after the summary judgment motion had been, several times adjourned. Furthermore, the motion was irregularly, and contrary to Rule 360, made presentable only on June 19, 19981, the very day then fixed for the return of the defendant's summary judgment motion.
[12] It is difficult to characterize the totality of these circumstances other than as an abuse of the Court's process. I conclude that I will dismiss the motion for leave to introduce the affidavit of Mr. Bourque, with costs.
"James K. Hugessen"
judge
__________________1 By an order rendered yesterday on a motion for directions by the defendant I fixed the present motion for hearing this afternoon so as to allow it to be timely disposed of.