Date: 20030923
Docket: T-775-02
Citation: 2003 FC 1092
Between:
LORNE JOSEPH KELLY
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF FISHERIES
AND OCEANS
Defendants
REASONS FOR ORDER
PINARD J.:
[1] This is a motion pursuant to Rule 51 of the Federal Court Rules, 1998, SOR/98-106, to appeal the decision of Prothonotary Tabib, dated August 5, 2003, dismissing the plaintiff's action for delay on status review.
[2] The Supreme Court of Canada recently adopted the Aqua-Gem standard of review in Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] S.C.J. No. 23 (QL). Speaking for the Court, Mr. Justice Bastarache stated, at paragraph 18:
Discretionary orders of prothonotaries ought to be disturbed by a motions judge only where (a) 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 (b) in making them, the prothonotary improperly exercised his or her discretion on a question vital to the final issue of the case: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), per MacGuigan J.A., at pp. 462-463. [. . .]
[3] In the case at bar, the applicant has failed to establish that the prothonotary's order is clearly wrong, in the sense that the exercise of her discretion was based upon a wrong principle or a misapprehension of the facts.
[4] In her decision, the prothonotary stated the following:
The only reason for delay submitted on behalf of the Plaintiff was that the solicitor for the Plaintiff somehow did not receive service of the Defendant's statement of defence and was therefore not aware that same had been filed. The solicitor for the Plaintiff goes on to state that it was his intention to make a motion for default judgement under section 210(1) of the Federal Court Rules, 1998, after the one year anniversary of filing the statement of claim had passed.
The Defendant questions the Plaintiff's assertion that he did not receive the statement of defence. In my view, whether or not the Plaintiff received the statement of defence and whether or not his failure to be aware of the filing of a statement of defence is justified is entirely irrelevant. Had no defence been filed at all, the Plaintiff would still be called upon to justify his failure to move this matter along within the past year. The Plaintiff's solicitor has offered no explanation whatsoever as to why he would have chosen to wait a full year before applying for default judgement. Whether a proceeding is defended or proceeds by default, the Plaintiff remains obligated to move the matter along diligently. The Plaintiff has not done so and has offered no explanation for his conduct. Nor has the solicitor for the Plaintiff proposed a cogent plan to move this matter forward, beyond stating that he is "willing to proceed to discovery in said matter and would be willing to set up a pertinent schedule immediately". As stated in Baroud v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 91: "declarations of intent and a desire to proceed are clearly not enough".
[5] I am satisfied that the prothonotary correctly applied the appropriate test established in Baroud v. Canada, [1998] F.C.J. No. 1729 (TD) (QL), at paragraph 4, when determining that the matter should be dismissed on status review. The two-prong test in that case is: 1) what are the reasons for which the case has not moved forward faster and do these justify the delay? and, 2) what steps is the plaintiff now proposing in order to move the matter forward?
[6] Furthermore, as I am also satisfied that the above findings of fact made by the prothonotary are supported by the evidence which was before her, I conclude that the first part of the Z.I. Pompey Industrie standard of review has not been established.
[7] In making her decision, the prothonotary exercised her discretion on a question vital to the final issue of the case, having dismissed the plaintiff's action. As a result, I must also consider whether the prothonotary improperly exercised her discretion in deciding so. First, the evidence submitted to the prothonotary supports the defendants' position that the Statement of Defence had been served to both the plaintiff and the plaintiff's agent and was subsequently filed. Second, the statement that the plaintiff's solicitor intended to make a motion for default judgment under subsection 210(1) of the Federal Court Rules, 1998, after the one-year anniversary of the filing of the Statement of Claim had passed, is no justification for the delay, considering that Rule 210(1) specifically refers to Rule 204 which requires that a defendant serve and file a Statement of Defence within thirty days after service of the Statement of Claim where the defendant is served in Canada. Third, and more importantly, the evidence enabled the prothonotary to find that, in any event, the long delay of one year had not been justified. As stated above, counsel for the plaintiff could not reasonably rely on subsection 210(1) of the Federal Court Rules, 1998, to justify a belief that the defendants had one year to serve and file their Statement of Defence. Finally, as the plaintiff proposed no cogent plan to move the matter forward, the prothonotary exercised her discretion in accordance with the following statement made in Baroud, supra, "declarations of good intent and of the desire to proceed are clearly not enough". Therefore, since I find that the prothonotary properly exercised her discretion, I do not intend to exercise my own discretion in a different manner.
[8] For all the above reasons, the discretionary order of the prothonotary ought not to be disturbed and the motion is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
September 23, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-775-02
STYLE OF CAUSE: LORNE JOSEPH KELLY v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by THE MINISTER OF FISHERIES AND OCEANS
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: September 17, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: September 23, 2003
APPEARANCES:
J. Allan Shaw FOR PLAINTIFF
Karen MacDonald FOR PLAINTIFF
Melissa R. Cameron FOR DEFENDANTS
SOLICITORS OF RECORD:
J. Allan Shaw Law Corporation FOR PLAINTIFF
Alberton, Prince Edward Island
Singleton & Associates FOR PLAINTIFF
Halifax, Nova Scotia
Morris Rosenberg FOR DEFENDANTS
Deputy Attorney General of Canada