Federal Court Decisions

     Court No. T-774-85

B E T W E E N:

     YANNICK VINCENT

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     Defendant

     REASONS FOR ORDER

CULLEN, J.:

BACKGROUND

     On April 19, 1996, a Notice to the solicitor per Rule 327.2 of the Federal Court Rules was sent to the plaintiff. On July 15, 1996, the plaintiff filed a motion for an order for directions. On July 22, 1996, the defendant filed a motion for an order dismissing the action for want of prosecution. On October 23, 1996, Dubé, J. ordered the plaintiff to justify to the Court by way of personal affidavit the reasons for the ten-year delay in prosecuting this matter.

     After documents from both sides were received, the file was then sent to Denault, J. to dispose of the two outstanding motions. On November 27, 1996, Denault, J. ordered:

"...if the plaintiff fails to file and serve his application for a determination of a question of law, as he has proposed, within ten days from the date of this order, his action shall be dismissed for want of prosecution". On December 6, 1996, the plaintiff filed his application for determination of questions of law with supporting material. On January 3, 1997, the defendant filed his written representations.

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     For the Court's determination are three motions:

1.      Plaintiff's motion for direction;

2.      Defendant's motion to dismiss the action for want of prosecution; and

3.      Plaintiff's motion for a determination of a question of law.

     The order of Dubé, J. reads:

IT IS HEREBY ORDERED that the plaintiff justify to the Court by way of personal affidavit the reasons for the ten year delay in prosecuting this matter.

     An affidavit was by the plaintiff on November 20, 1996 as required by the order of Dubé, J. The Court is not convinced by the content of the affidavit that the plaintiff has established reasons for the ten-year delay in prosecuting this matter. The affidavit has excuses but nothing that would warrant a ten-year delay and accordingly the action is dismissed for want of prosecution.

     To quote counsel for the defendant (in document no. 505 of the file):

In order to succeed under Rule 440 it is accepted that the Defendant must establish that there has been inordinate delay by the Plaintiff, that the delay is not excusable and that the delay is likely to cause serious prejudice to the Defendant. (Allan v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, [1968] 1 All E.R. 543 (C.A.); Patex Snowmobiles Ltd. v. Bombardier Ltd. et al (1993), 153 N.R. 235 at 236, 48 C.P.R. (3d) 555 (F.C.A.); Canada v. Aqua-Gem Investments Ltd. [1991] 50 F.T.R. 115 (T.D.); affirmed [1993] 2 F.C. 425 (C.A.).)

...

It is clear that no action has been taken in this matter since October 14, 1986. The last correspondence in this file is a letter from the Defendant to the Plaintiff requesting answers to questions and certain documents. (Affidavit of Janet Ozembloski, paras. 13, 14) Since then, almost ten years have lapsed and the Plaintiff has done nothing to proceed with this action for wrongful dismissal. The Defendant submits that the delay in this action is unreasonable and inexcusable. The Defendant further submits that it has been seriously prejudiced by the delay that has occurred in this action.

     I accept the defendant's plea which I quote:

The Defendant submits that exceptional circumstances exist in this case so as to justify bringing on this notice without two weeks notice as delineated in Rule 440(2). The inordinate and inexcusable delay which may be attributed to the Plaintiff with its complete inaction in this matter since 986, and the prejudice which will be done to the defendant, should justify the Defendant bring this Motion to Dismiss at this time. (D & E Towing & Salvage Ltd. v. "Haida Carrier" (The) (1993), 70 F.T.F. 187 at 189 (T.D.); Patex Snowmobiles Ltd. Bombardier Ltd. et al (1991), 48 F.T.R. 221 at 223-4, upheld on Appeal (1993), 153 n.r. 235 (F.C.A.))

     With respect to the plaintiff's application for a determination of law, and although it is now obiter and no decision need be made, I would advise that, in my view, the letter of Thursday, january 2, 1997 to the Registry from Ian McCown, with a copy to counsel for the plaintiff, is a correct determination of law.

OTTAWA

     B. Cullen

January 13, 1997.

     J.F.C.C.