Date: 20010321
Docket: T-1505-95
Citation: 2001 FCT 210
BETWEEN:
JOHN ALEXANDER SUMMERBELL
Plaintiff
- and -
HER MAJESTY THE QUEEN
representing Her Majesty's CORRECTIONAL
SERVICE OF CANADA, the COMMISSIONER
OF CORRECTIONS, and the INSTITUTIONAL
HEAD of Her Majesty's Warkworth Penitentiary
Defendant
[1] John Summerbell ("the plaintiff") appeals the Reasons for order and order of Associate Senior Prothonotary Giles made on January 5, 2001 which dismissed the plaintiff's preliminary objection and motion seeking a contempt order and which granted Her Majesty the Queen's ("the defendant") motion seeking to strike questions. In particular, the plaintiff appeals against paragraphs 12, 20, 24, 29, 31, 60 and 61 of the order. He also seeks an extension of time to file the within appeal on the grounds that his incarceration has prevented him from filing his appeal timely.
Extension of Time
[2] As the defendant concedes that it would not be prejudiced if the plaintiff was granted the requested extension of time, I am granting the motion for an extension of time to file his material nun pro tunc.
Appeal Under Rule 51(1)
[3] The test to be applied on appeal of a prothonotary's decision under Rule 51(1) of theFederal Court Rules, 1998 has been clearly defined by the Court of Appeal in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425. Discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless they are clearly wrong in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or they raise questions vital to the final issue of the case.
[4] In the case at bar, the plaintiff has failed to show that the Prothonotary's decision was based on a wrong principle or a misapprehension of the facts. Moreover, none of the rulings made by Prothonotary Giles in dealing with the preliminary objection and the two motions have had the purpose of disposing definitively of the issues of the case.
Paragraph 12
[5] The plaintiff alleges that Prothonotary Giles erred by ruling that documents served by parties can differ in material aspects from the originals filed with the Court or otherwise used between the parties. It is clear from a reading of Prothonotary Giles' Reasons for order and order that he made no such finding. What he found was that the absence of an ink signature on the copy served on the plaintiff was not fatal. I agree. In the case at bar, the only difference in what was filed and what the plaintiff received was a missing signature on one page. As is required, the Motion Record filed with the Court was signed. The Motion Record served on the plaintiff cannot be described as being materially different. Moreover, this mistake did not deprive the plaintiff of information and did not prejudice him.
Paragraphs 20 & 29
[6] With regards to paragraph 20, it appears from a review of the Court file that the defendant provided copies of the written examination for discovery questions, as drafted by Mr. Summerbell, in the defendant's reply to the plaintiff's submissions filed on February 24, 2000. As such, Prothonotary Giles was correct in stating that the questions were provided in the defendant Crown's reply.
[7] With regards to paragraph 29, Prothonotary Giles did inadvertently write "defendant" rather than "plaintiff". However, this constitutes a clerical error that could have been easily corrected without recourse to an appeal.
Paragraph 24
[8] Although the Prothonotary recognized that evidence tending to prove that the plaintiff is a hypochondriac is irrelevant for the purposes of the motion and stated that this evidence would be ignored and that certain paragraphs of an affidavit were out of place, the plaintiff did not succeed on the fundamental point of his preliminary objection. Therefore, the Prothonotary could not dismiss "the defendant's motion outright against all its manifest defects" as was requested by the plaintiff. In light of the foregoing, the Prothonotary properly exercised his discretion in ordering that the plaintiff's objection be dismissed.
Paragraph 31
[9] The plaintiff submits that Prothonotary Giles should have ruled that the defendant should either answer Question 21 or claim privilege. It is manifest that any contact between Dr. Maraghi and Dr. Fiddler and the defendant to discuss the matters pleaded about them in the statement of claim and to discuss the documents signed by either of them would be privileged. As such, the order to strike Question 21 does not constitute an error and should stand.
Paragraph 60
[10] Pursuant to Rule 400, the Court has full discretionary power over the amount and allocation of costs and the determination of who has to pay them. The awarding or refusal of costs should be based on the merits of the case. Contrary to what the plaintiff alleges, success was not divided. As previously discussed, although the Prothonotary recognized that some of the material filed by the defendant was irrelevant for the purposes of the motion and that certain paragraphs of an affidavit should more properly be in the representation section of the motion, the plaintiff did not succeed on the fundamental point of his preliminary objection. As such, the defendant was successful on both the preliminary objection and the motion to strike and was therefore entitled to its costs. Accordingly, Prothonotary Giles properly exercised his judicial discretion in awarding costs.
Paragraph 61
[11] The general purpose of the Court's contempt power is to ensure the smooth functioning of the judicial process. As was discussed by Prothonotary Giles in his Reasons for order and order, both parties were present during the teleconference hearing held on January 5, 2000 when the order was made, both parties were necessarily conscious of the content of the order.
[12] The plaintiff failed to demonstrate that he suffered any prejudice due to the delay in receiving the order. Given these circumstances, it was entirely appropriate for the Prothonotary to dismiss the plaintiff's motion seeking a contempt order against the Registry Officer.
[13] The plaintiff not having succeeded in establishing an error of law, the appeal must therefore be dismissed.
[14] The defendant seeks costs on a solicitor-and-client basis payable forthwith. Although the plaintiff was unsuccessful on this motion, the circumstances of this case do not warrant that costs be awarded on a solicitor-and-client basis. As such, the appeal will be dismissed with costs.
ORDER
THIS COURT ORDERS that
1. The extension of time be granted and that the material be filed nun pro tunc.
2. The plaintiff's appeal against paragraphs 12, 20, 24, 29, 31, 60, and 61 of the Reasons for order and order of the Associate Senior Prothonotary Giles made on January 5, 2001 be dismissed; and
3. Costs payable to the defendant.
Judge
Ottawa, Ontario
March 21, 2001