Date: 20000303
Docket: T-1453-89
BETWEEN:
LAN TECHNOLOGIES INC., TECHNOLOGY EQUITY CORP.,
LEXICALC INC., TECHNOLOGY SOLUTIONS INC.
and HIGH TECH SOLUTIONS INC.
Plaintiffs
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF NATIONAL REVENUE
Defendants
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
[1] Pursuant to Rule 385(2) of the Federal Court Rules, 1998, the Plaintiffs were required, on a peremptory basis, to show cause by written submissions why this action should not be dismissed for delay. Written submissions were received from the Defendants on February 18, 2000 and from the Plaintiffs on February 22, 2000. The Defendants filed reply submissions on February 23, 2000.
[2] The facts are not in dispute. The Plaintiffs commenced the present action by issuing a Statement of Claim on July 13, 1989. Following a long period of inactivity, the pleadings were finally closed on May 26, 1995. No tangible action was taken by the Plaintiffs subsequently to move the proceeding until a Notice of Status Review was issued on October 8, 1998.
[3] In their written submissions dated November 9, 1998, filed in response to status review, the Plaintiffs asked that the action not be dismissed. They proposed to take concrete steps in the proceeding by delivering affidavits of documents by March 31, 1999 and by scheduling examinations for discovery in April 1999. The Plaintiffs also agreed to comply with a timetable for completion of subsequent steps in the proceeding.
[4] By Order dated March 25, 1999, the Associate Senior Prothonotary Peter A.K. Giles ordered that the proceeding be allowed to continue as a specially managed proceeding. He further ordered that discoveries be completed by June 1, 1999 and that any motion for re-attendance to answer questions refused on discovery be brought by July 1, 1999. By Order dated May 31, 1999 ("the May Order"), on motion of the Plaintiffs, the above deadlines were extended to October 1, 1999 and November 1, 1999 respectively.
[5] On September 15, 1999, counsel for the Plaintiffs brought a motion to be removed as solicitors of record. The motion was adjourned sine die on September 27, 1999 and now appears to have been abandoned. No further steps were taken by the parties to comply with the court-ordered schedule or to move the proceeding forward until the present show cause Order was issued on February 4, 2000.
[6] The Plaintiffs submit that the history of delay prior to the May 1999 Order is irrelevant for the purposes of deciding whether to dismiss the action for delay. Their solicitors candidly admit that their firm "lost site [sic]" of the deadlines set out in the May 1999 Order and that they were dealing solely with matters relating to a Tax Appeal of one of the Plaintiff corporations. They contend that the Plaintiffs have a meritorious case and that the Defendants have not been prejudiced by the delay. They further propose that the discoveries conducted in the Tax Appeal serve as the Plaintiffs" discovery of the Defendant and indicate that they are prepared to serve and file a requisition for pre-trial conference. They therefore ask that the proceeding not be dismissed.
[7] The Defendants take issue with the explanation provided by the Plaintiffs for the delay. Submissions regarding marital and financial problems of Mr. Pitchford, a director of one of the corporate Defendants, are unsupported and unsubstantiated and cannot justify the substantial delay. They urge the Court to review the Plaintiffs" submissions critically.
[8] This Court has taken a much more active role in determining time limits for taking procedural steps and monitoring compliance following recent amendments to the Federal Court Rules in April 1998. Gone are the days when parties could shelve their litigation files for an extended period of time without repercussions. Parties are now required to take steps within prescribed time limits, failing which their proceeding may be dismissed for delay on the Court"s own motion.
[9] This action was instituted in 1989. Eleven years later, the parties have yet to embark on discoveries, let alone complete them as ordered by the Court. The proceeding having survived status review, it was incumbent on the Plaintiffs to strictly adhere to the schedule imposed by the Court or, alternatively, seek relief from the case management judge or prothonotary pursuant to Rule 385. They failed to do so in a timely manner, or at all.
[10] The Plaintiffs have also failed to offer a reasonable explanation for their failure to comply with the schedule which they themselves requested from the Court. Moreover, their proposal to use the discoveries in the Tax Appeal as a substitute for discoveries in this action is properly opposed by the Defendant. Their professed intention to pursue the matter diligently rings hollow. As was stated by Mr. Justice Hugessen in Baroud v. Canada, (1998) F.C.J. No. 179:
| Mere declarations of good intent and of the desire to proceed are |
| clearly not enough. Likewise, the fact that the defendant may have been lax and may not have fulfilled all his procedural obligations is largely irrelevant: primary |
| responsibility for the carriage of a case normally rests with a plaintiff and at a status review the Court will look to him for explanations. |
[11] In light of the significant delay in this proceeding, the failure by the Plaintiffs to comply with the schedule imposed by the Court and the lack of a reasonable explanation for the delay, I conclude that this action should be dismissed.
IT IS ORDERED THAT:
[12] The action is dismissed.
"Roger R. Lafrenière"
| ____________________________ |
Prothonotary
TORONTO, ONTARIO
March 3, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1453-89 |
| STYLE OF CAUSE: LAN TECHNOLOGIES INC., TECHNOLOGY EQUITY CORP., |
| LEXICALC INC., TECHNOLOGY |
| SOLUTIONS INC. and HIGH TECH SOLUTIONS INC. |
| - and - |
| HER MAJESTY THE QUEEN and |
| THE MINISTER OF NATIONAL REVENUE |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULES 369 and 380.
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: FRIDAY, MARCH 3, 2000
SOLICITORS OF RECORD: Weir & Foulds
Barristers & Solicitors
Exchange Tower, Suite 1600
P.O. Box 480
130 King Street West
Toronto, Ontario
M5X 1J5
| For the Plaintiffs |
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendants
FEDERAL COURT OF CANADA
Date: 20000303
Docket: T-1453-89
Between:
| LAN TECHNOLOGIES INC., TECHNOLOGY EQUITY CORP., |
| LEXICALC INC., TECHNOLOGY SOLUTIONS INC. and HIGH TECH SOLUTIONS INC. |
Plaintiffs
- and -
HER MAJESTY THE QUEEN and
| THE MINISTER OF NATIONAL REVENUE |
Defendants
| REASONS FOR ORDER |
AND ORDER