Date: 20050413
T-304-03
Citation: 2005 FC 501
Docket: T-1027-01
BETWEEN:
ROSITA HAYLOCK, CECILE ADAIR, DONALD BURGESS,
JENNIFER COLLEY, SOPHIE GEOFFRION, EILEEN HINKLEY,
JUDY MARCHE, HEATHER REARDIGAN,
DANIELLE SEGALL, LONNIE TYACKE
and IRENE WALD
Plaintiffs
and
NORWEGIAN CRUISE LINES LIMITED
and THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIPS "NORWAY", "NORWEGIAN CROWN",
"NORWEGIAN DREAM"(ex "DREAMWARD"),
"CROWN DYNASTY"(ex "NORWEGIAN DYNASTY"),
"SUPERSTAR TAURUS"(ex "LEEWARD"),
"NORWEGIAN MAJESTY",
"NORWEGIAN SEA"(ex "SEAWARD"),
"NORWEGIAN SKY",
"NORWEGIAN STAR"("ex "ROYAL ODYSSEY"),
"NORWEGIAN WIND"(ex "WINDWARD") and "SEAWING"
Defendants
Docket: T-304-03
BETWEEN:
JO-ANNE GRAHAM, JUDE LISKOWICH,
JANE McCLAIN, DIANA PLANTE
and JULIA STRAUTMAN
Plaintiffs
and
NORWEGIAN CRUISE LINES LIMITED
and THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIPS "NORWAY", "CROWN ODYSSEY"(ex "NORWEGIAN CROWN"), "NORWEGIAN DREAM"(ex "DREAMWARD"),
"BRAEMAR"(ex "CROWN DYNASTY", ex "NORWEGIAN DYNASTY"),
"SILJA OPERA""ex SUPERSTAR TAURUS", ex "LEEWARD"),
"NORWEGIAN MAJESTY", "NORWEGIAN SEA"(ex "SEAWARD"),
"NORWEGIAN SKY", "NORWEGIAN STAR"("ex "ROYAL ODYSSEY"),
"NORWEGIAN SUN"and "NORWEGIAN WIND"(ex "WINDWARD")
Defendants
BACKGROUND
[1] These two actions, T-1027-01 (the "01 action") and T-304-03 (the "03 action") which have been ongoing since 11 June 2001 and 20 February 2003 respectively, involve claims by eleven shipboard nurses in the 01 action and by five shipboard nurses in the 03 action for overtime.
[2] In an effort to move the 01 action along it was ordered case managed on 6 January 2003, with the Chief Justice appointing case managers 2 April 2003, Madam Justice McGillis having ordered a schedule, the parties and the Court, in January of 2003, expected to see a request for a pretrial conference by 26 September 2003. The 03 action interposed itself.
[3] On 30 July 2003, in an effort to save expense, discovery on both files was split into an initial written phase, so that the Defendants might decide which of the Plaintiffs to discover, the Plaintiffs being spread about the world, including on various ships: the result was a revised schedule filed with the Court on 25 August 2003 leading to an expected 30 September 2004 pretrial conference requisition in both the 01 and 03 files. By 25 August 2003 the 01 action had been in case management for a number of months and the 03 action was being dealt with as the subject of a concurrent ad hoc case management regime. By agreement of counsel and case manager a fresh schedule dated 30 January 2004 was filed with the Court on 21 April 2004, which projected the filing of a request for a pretrial conference by 25 September 2004. That schedule proved to be unworkable: the Court, after consulting with counsel, issued a case management order on 15 June 2004. The order provided:
1 September 204 (sic) Plaintiffs' and Defendants' Affidavits of Documents and the documents listed in Schedule I thereof to be exchanged.
1 November 2004 Examinations for Discovery of Plaintiffs by way of written examination to be answered on Affidavit.
14 April 2005 Examinations for Discovery of Plaintiffs and Defendants by way of oral examination to be completed.
15 September 2005 Answers to outstanding requests from Plaintiffs' and Defendants' Examinations for Discovery to be provided.
30 September 2005 Request for Pre-Trial Conference to be submitted.
The 15 June 2004 ordered schedule was to apply to both the 01 and 03 actions.
[4] Written discovery questions were delivered to counsel for the Plaintiffs on 2 September 2003, in both actions, that being some one and a half years ago. In the interim and before this motion came on, the Plaintiffs, Rosita Haylock, Judy Marche, Sophie Geoffrion, Jennifer Colley, Irene Wald, Heather Reardigan, Jude Liskowich and Diana Plante provided answers to the written discoveries.
[5] The Chief Justice ordered the 03 action to be specially managed 8 March 2005.
[6] By the 1st of April 2005 five of the Plaintiffs in the 01 action and three of the Plaintiffs in the 03 action had not provided affidavit answers to the written discovery, those answers being due 1 November 2004. On 1 April 2005 the Defendants, concerned that they might lose their oral discovery rights, to be exercised by 14 April 2005, brought the present motion seeking to strike out the defaulting Plaintiffs, or alternatively, for yet another schedule extending time for the various remaining steps and leading to the submission for the request of a pretrial conference by 20 January 2006, with costs to the Defendants.
[7] Counsel for the Plaintiffs was able to advise, during a hearing of the present motion, that at least one of the Plaintiffs had an affidavit coming to him in the mail. However he also advised that, in his view, he was unable to provide affidavit evidence as to progress in providing the sworn discovery answers, for he felt that to do so might give the other side some advantage: a litigant cannot have it both ways, asking for concessions which impinge upon the rights of the other side, but refusing to provide affidavit evidence to support the requests for concessions. One of the Plaintiffs did get off her ship not too long ago, but went on a holiday to Africa and the best estimate is that her response to the written discovery questions might be available sometime in mid-April.
[8] Counsel for the Plaintiffs submits that the 15 June 2004 order, which has been breached as to the 1 November 2004 deadline for discovery answers, did contain a liberty to apply provision to allow variance or addition to the schedule. The concept of liberty to apply does not confer any right to seek variance of an order, but rather is inserted in orders which may require, if there are particular or special circumstances, a working out of the order. What concerns me here is that the 1 November 2004 deadline set by an order is far in the past, without the Plaintiffs having come to the Court to offer evidence, in a timely manner, in order to obtain an extension of the 1 November 2004 deadline.
[9] As to evidence of why the deadline of 1 November 2004 has been missed, counsel does provide affidavit evidence to the effect that each set of written examination for discovery answers has varied between 59 pages and 109 pages of single spaced material and that the result of this, counsel for the Plaintiffs submits, is that assembling the discovery answers has taken time. Moreover, much of this has had to be organized by mail. Here I note that as of 11 January 2005 only one Plaintiff had provided the written discovery answers, with another seven Plaintiffs providing their answers between 1 February 2005 and 18 March 2005.
[10] Before turning to a consideration of the motion itself, there are two passages in a 13 January 2005 letter from counsel for the Plaintiffs to counsel for the Defendants, which have some bearing:
As we advised in our letter to you of 5 November 2004, the answers being provided by the plaintiffs are longer than anticipated in order to be as complete and useful as possible. We now have draft answers from all the nurses and are in the process of finalizing the answers and putting them into affidavit form. We will not be able to provide sworn answers for any of the nurses by 19 January 2005, not least because none of the nurses yet to provide sworn answers live in British Columbia and a number are not currently in Canada. Much of the correspondence with the nurses remains to be done by mail.
Of concern here is that while, as of 13 January 2005 the Plaintiffs had all provided draft responses to the 2 September 2003 discovery questions, three months after having draft responses in hand, there are still eight sets of answers outstanding. This is a substantial delay, even accepting that those from whom answers are pending either live elsewhere in Canada or are not currently in Canada. The 13 January 2005 letter goes on to set out that
We have considered that none of the nurses have failed to comply with Prothonotary Hargrave's Order without reasonable excuse and that it is premature at this time to consider striking the claims of any of them. However, if you feel it will be helpful to moving this matter forward, we will be pleased at any time to participate in a Case Management Conference with Prothonotary Hargrave to show him the extent of the answers being provide [sic] and to outline the current situation.
Here there is a submission that there are reasonable excuses for the failure to comply with the 15 June 2004 order and that it is premature to consider striking any of the claims. However the only excuses appear to be that the nurses are not conveniently located; that the work required to organize and process the answers has been more than anticipated; that one of the Plaintiffs, while leaving her ship 20 February 2005, has since been travelling in Africa; that the 15 June 2004 order was based on the best estimate of counsel that written discoveries could be completed by 1 November 2004; and that striking out the claim would be a drastic remedy which ought to be reserved for instances in which it is clear that the conduct of the party constituted an abuse of process.
CONSIDERATION
[11] Counsel for the Plaintiffs submits there ought to be a new schedule, not that suggested as an alternative by the Defendants in their motion, but one allowing a little more time and moreover that the Plaintiffs reserve any right they might have to convert the present two proceedings into a class action. The difficulty with all of this is that the request of the Plaintiffs, for further time, offers no more of a substantial time deadline than there has been at any time to date, notwithstanding a scheduling order and that, for the Plaintiffs, to reconstitute the 01 and 03 actions as a class action or actions, would likely lead to additional long and drawn-out procedure. Here my concern is also that the economics of this action are not being taken seriously enough, although counsel for the Plaintiffs did concede, during oral argument, that the sixteen claims, essentially separate cases, were becoming costly, for each of the claimants was funding their own action.
[12] It is important that plaintiffs not only have a good initial grasp of their case, but also recognize their obligation, subject to acceptable extenuating circumstances, to move the case to a conclusion in a timely and diligent manner. In the present actions the reasons and excuses for failing to reach even completion of the first stage of written examination for discovery, in a timely manner in parallel actions, which are about four and two years old respectively, are thin and indeed point to the actions not being a high priority on the part of some of the Plaintiffs and perhaps also indicates a lack of resources, neither of which assists the defaulting Plaintiffs. That the defaulting Plaintiffs can offer no assurances, as to when they might be ready for a pretrial conference and that they are considering, as an additional step, seeking certification of their proceedings as a class action, is detrimental to their case for a further extension, which would be an extension, to the deadline for the filing of a pretrial conference request, of uncertain length.
[13] Neither of the arguments nor the affidavit material relied upon by the defaulting Plaintiffs deals with the delay and the breach of the timetable set out in the 15 June 2004 order in a substantial or timely manner. Orders are meant to be obeyed. Yet in dealing with a motion to strike out the claims of half of the Plaintiffs I must also keep in mind that to strike out a pleading, thus bringing a claim to an end, is a drastic outcome for procedural failure and indeed ought not to be the result unless the impugned conduct is an abuse of process. Here I have in mind H. Smith Packing Corp. v. Gainvir Transport Ltd. (1991) 46 F.T.R. 62, Mr. Justice MacKay observing, at page 70 that the motion to strike out the defence, the case being one involving the failure to strictly comply with the rules as to form and substance of production of documents, an oversight, did not warrant striking out where the Court was able to accept the assurance of counsel that the matter would be brought to a resolution expeditiously:
After hearing from counsel for the parties I indicated that the application on behalf of the plaintiff to strike the defence filed by Hub Forwarding would be dismissed by Order accompanying these Reasons which were requested by counsel. My conclusion is based on the following factors. The relief sought, striking the defence, is a very drastic remedy for procedural failures and it ought not to be provided except where it is very clear that the defendant party's conduct constitutes an abuse of the process of the Court. I am not convinced that this is yet the case in this proceeding. I accept the assurance of counsel for the defendant that failure to meet the specific terms of the Order of Madame Justice Reed of November 13, 1990, was oversight on his part and that he had in fact sought to comply with the Order. While I accept that it was his oversight, that does not excuse him as an officer of the Court. Yet at this stage I am not prepared to find that oversight warrants striking the defence of the party for whom he acts. Further, I accept the assurance of counsel for the defendant that he is desirous of ensuring resolution of this matter as expeditiously as can be done.
This case was, quite properly, brought to my attention by counsel for the Defendants. The difficulty in applying Smith Packing to the present circumstances is that the delay does not result from an oversight and there are no substantial assurances either from the defaulting Plaintiffs or from counsel that this litigation will come to a resolution either soon or at any given estimated time.
[14] In contrast to Smith Packing counsel for the Defendants referred to Pioneer Grain Co. v. Far-Eastern Shipping Co., an unreported 15 December 1999 decision in T-891-94, upheld (2000) 181 F.T.R. 161 by Mr. Justice Muldoon. At issue there was the breach of four consecutive court orders as to production of documents in a very substantial claim:
15. At issue is the breach of four Court Orders, with some rationalization, but without any excuse. Now a court will not generally strike out a claim when production of documents does not comply with a court order, for that is a drastic remedy. Yet orders are meant to be obeyed so long as it is reasonably possible to do so. When the failure to comply is conduct amounting to an abuse an action will be terminated and here I would refer to Smith Packing Corporation v. Gainvir Transport Ltd. (1992), 46 F.T.R. 62, a decision of Mr. Justice MacKay. In Smith Packing the plaintiffs sought to strike out a defence because a list of documents filed by the defendant, pursuant to Court Order, did not comply either with the Court's Order or with the Federal Court Rules. Mr. Justice MacKay noted that:
The relief sought, striking the defence, is a very drastic remedy for procedural failure and it ought not to be provided except where it is very clear that the defendant party's conduct constitutes an abuse of the process of the Court. (Page 70)
16. In the present instance there is a clear abuse by a Plaintiff who has ignored four Court Orders for production of documents, even though the documents are, by the Plaintiffs' own admission, in existence and available. The Defendants are entitled to see that specific set of documents. They have been frustrated time and again by a Plaintiff who seems to have no interest in producing the documents and who is prepared to run the risk associated with ignoring four specific Court Orders. The action is thus dismissed by reason of abuse of process.
[Unreported 15 December 1999 reasons]
In Pioneer Grain the plaintiffs' statement of claim was struck out.
[15] The case of Zazula v. Canada (2003) 234 F.T.R. 222, involved the failure to provide dates for examination for discovery, in the face of both an order and a direction and the absence of a plan to move the action to a conclusion, amounting to an abuse. In Zarzula I had occasion to refer, in passing, at page 224, both generally as to observing time requirements and to what Mr. Justice Muldoon had to say on the appeal of the Pioneer Grain case (supra):
Time requirements laid down by the Court, both pursuant to the Rules and by order, are not merely targets to be attempted. Such are to be observed, both because delay may cause prejudice and because litigation must come to a timely conclusion. This is not to say that time limits are absolutes, for the time is long past when a court will find a litigant should be denied a day in court merely on the basis of a mistake or an uncontrollable event resulting in missed deadlines. However, in this instance delays and missed deadlines have become all too common place. This sort of approach to litigation, by a plaintiff who has an obligation to move the case along to a conclusion in an orderly and timely manner, can constitute an abuse of process, as pointed out by Mr Justice Muldoon in Pioneer Grain Co. v. Far-Eastern Shipping Co. (FESCO) (2000), 181 F.T.R. 161 at pages 165 - 166:
Surely to have initiated an action in Court, and then to ignore the Court's orders for the better management of the proceedings, is to abuse the Court's process. In civil proceedings in which the abusive party can be dealt with simply by dismissing that party's pleadings (by which such party is seeking the Court's aid) the Court is, according to its well known rules, amply justified in denying its aid to the abuser.
In Pioneer Grain, there being no excuse for ignoring the Court's orders, Mr Justice Muldoon upheld an order dismissing the action for failure to produce documents.
The thrust of this passage is that while time limits are not necessarily absolute, they are more than mere targets: time limits, subject to uncontrollable events, must be obeyed, for otherwise litigation will not come to a timely conclusion. Also applicable, in the present instance, is that the commonplace missing of deadlines can constitute abuse. In the enclosed quote from Pioneer Grain, set out above, Mr. Justice Muldoon makes the point that to ignore management orders is an abuse of process, an abuse which can be dealt with by dismissing the pleadings by which a party seeks to obtain the aid of the Court.
[16] Prothonotary Morneau took some of this a step farther in Ferrostaal Metals Ltd. v. Evdomon Corp. (2000) 181 F.T.R. 265. There the plaintiffs had ignored an order setting out a court management schedule. Prothonotary Morneau wrote:
In my opinion, any unjustified non-compliance with an Order of the Court establishing a schedule is a serious matter in itself. When that Order was made pursuant to a status review, any unjustified default is even more serious, and the degree of tolerance shown by the Court will be correspondingly lower. After all, the Court is then dealing with a case that is delinquent for the second time. ... In my view, the sound administration of justice justifies saying that a finding of unjustified default is then sufficient in itself for a plaintiff's action to be struck for delay.
Of course, striking an action will definitely prejudice a plaintiff to some extent. However, in terms of a status review, an assessment of the prejudice to a party is not part of the equation that is applied (see Multibond Inc. v. Duracoat Powder Manufacturing Inc., unreported decision dated October 4, 1999, docket no. T-1703-94). This seems to me to be particularly true when, as here, we have a situation that arose after the notice of status review. If any prejudice should be taken into consideration at this point, it is the prejudice to the Court and those of its users who comply with the rules and orders. As my colleague Hargrave wrote in Trusthouse Forte California Inc. et al. v. Gateway Soap & Chemical Co. (1998), 161 F.T.R. 88, at page 89:
These reasons touch on the need for litigants to recognize that they must not delay proceedings unreasonably so as to tie up the court's resources needlessly. If a plaintiff should do so he or she stands to have the action dismissed. For the court to do otherwise results in stale proceedings which not only bring the court and its case management process into disrespect, but also affects and indeed may prejudice other litigants who wish to have their litigation resolved expeditiously.
[pp. 273 - 274]
Prothonotary Morneau not only recognized the import of ignoring a management order, but went on, at page 274, to note that the plaintiff had let a previous order for an extension lapse, without doing anything about it. Here therefore dismissed the action for delay.
[17] Mr. Justice Denault upheld Ferrostaal Metals on appeal (2000) 196 F.T.R. 66, upheld (2001) 283 N.R. 385 (F.C.A.). He was unimpressed by the reason advanced for the delay, a large number of documents which needed to be revised. He felt that the long time spans in accomplishing anything reflected upon "... at the very least a serious lack of a cooperation by the plaintiffs with their counsel ..." (page 68), particularly given the time that had passed since the action had been initiated, a little over four years, however he considered the observations of the Supreme Court of Canada in Bowen v. City of Montreal [1979] 1 S.C.R. 511. In Bowen, at 519, the Supreme Court had observed that a party must not be deprived of rights by reason of an error of counsel where it is possible to rectify affairs without injustice to the other side. Notwithstanding Bowen, Mr. Justice Denault upheld the striking out because the plaintiffs not only failed to explain the delay, "... but flagrantly and recklessly neglected to observe the entirely reasonable schedule set by the Court on the basis of their submissions, ..." (page 70).
CONCLUSION
[18] There are two opposed points of view as to what should be the outcome of this motion. The Plaintiffs point out that, as set out in H. Smith Packing Corp. (supra), striking out a statement of claim is a drastic outcome in the case of a procedural failure: it ought not to happen on that basis except where there has been a clear abuse of process. The Plaintiffs submit that discovery answers are still coming in and that it is counsel's view that it is possible that all the discovery answers might be in hand a couple of months from now.
[19] The contrary view, expounded by the Defendants, is that those Plaintiffs, who have not provided their answers to the written questions, have themselves not provided an explanation for their delay. Moreover, this delay is in response to written questions of 2 September 2003, with deadlines, in the form of schedules, filed with the Court on two occasions, in connection with case management and in the face of a specific order, setting a schedule, 15 June 2004. The Defendants submit that the conduct of those Plaintiffs who are in default, by reason of a failure to provide any excuse for the delay and by reason of failure to comply with a case management order setting a schedule, amounts to an abuse such that the claims ought to be struck.
[20] Half of the Plaintiffs have been able to meet deadlines for written discovery answers. Were I in receipt of even minimal evidence from the defaulting Plaintiffs, that their claims were somewhere near the forefront of their priorities, or that they had a reasonable explanation for their delay over the many months that the discovery questions have been outstanding, or that the answers would, with a high degree of certainty, be provided by a given date, a further extension of time would be in order. However, to leave both the Defendants and the Court in a sense of uncertainty as to when this case managed action might be ready for a pretrial conference, a conference date moved several times and all the more so to raise the spectre of more months going by for class certification, is an abuse.
[21] The claims of those Plaintiffs, who have not, on the date of an accompanying order of even date, delivered their sworn written discovery answers to counsel for the Defendants, are struck out.
Costs of the motion against the defaulting Plaintiffs.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1027-01 & T-304-03
STYLE OF CAUSE: Rosita Haylock et al. v. Norwegian Cruise Lines Limited et al.;
Jo-Anne Graham et al. v. Norwegian Cruise Lines Limited et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 11, 2005
REASONS FOR ORDER : HARGRAVE P.
DATED: April 13, 2005
APPEARANCES:
Mr. Robert Margolis FOR PLAINTIFFS
Mr. Shane Nossal FOR DEFENDANTS
SOLICITORS OF RECORD:
Giaschi and Margolis FOR PLAINTIFFS
Vancouver
Bull Housser & Tupper FOR DEFENDANTS
Vancouver