Date: 20010608
Docket: T-2351-00
Neutral citation: 2001 FCT 631
BETWEEN:
EMILE MENNES
Applicant
-and-
LUCIE McCLUNG, OLE INGSTRUP, MICHEL ROY, KAREN WISEMAN,
LIZ ESHKROD, THE COMMISSIONER OF CORRECTIONS,
THE CORRECTIONAL SERVICE OF CANADA,
THE NATIONAL LIBRARY OF CANADA
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondents
[1] By the Motion before me, the Respondents seek leave to file a record late. So late in fact that the Applicant has already filed a requisition for a hearing date. The Motion for extension of time is opposed by the Applicant. I do not intend to go into all the matters raised by the Applicant in opposing the Motion, but will state unequivocally that it is my opinion that counsel for the Respondents has neither provided acceptable excuses for the delay, nor persuaded me that the Respondents should be granted the relief they seek. However, it is in the interests of the Court, and I believe of the Applicant, that the position that the Respondents intend to take at the hearing should be known, and that the Court should not be placed in the position of having to assess the Applicant's position without any representations by the Respondents. A record would place the Court and the Applicant on notice of the position which the Respondents intend to take. This would be accomplished by the Memorandum of Law and Fact in the record. Also, any transcripts not in the Applicant's record should be available to the Court.
[2] Before concluding that the filing of a record should be allowed, I must assess the possible prejudice to the Applicant. I should deal with the Applicant's objections to the filing of an affidavit by counsel, which is prohibited by the Rules. I read the affidavit in order to understand the Respondent's position as no representations or argument were filed. It is apparent that counsel's concept of the procedure is different from mine and may have mislead the lay litigant whose knowledge of the Rules seems in many respects better than that of counsel, but still not as full as one might hope.
[3] It is my reading of the Rules that were the Respondents to be allowed to file a record out of time, the record could only contain those items listed in Rule 310 (2). It is my understanding, of Rule 310 (2) that a Respondent's record contains nothing that the Applicant will not have already seen, except the Memorandum of Fact and Law. The affidavits mentioned in Rule 310 (2)(b) are those filed under Rules 306, 307 and 312. In this case there are none under Rule 307 and 312 and presumably those under Rule 306 have already been filed in the Applicant's record. There will be no new affidavits because no leave to file them has been sought. There were no cross examinations, so there will be no transcripts to include under Rule 310 (2)(c) or (d). As there were no affidavits of the Respondent there will be no physical exhibits under Rule 310 (2)(e). Theoretically, at least under Rule 310 (2)(b) and (e), affidavits of the Applicant not included in his record could be included in the Respondents' record.
[4] I have considered the Applicant's allegations that any order allowing filing will add enormously to his work. As the record will contain no new evidence, I do not see that anything further will necessarily be required of the Applicant. The bulk of the Applicant's Motion Record is such that, it is apparent he has been put to a large amount of work already. A lot of what he correctly complains of would ordinarily be overlooked, such as for instance, the width of margins, but such things lend credence to his allegations that the Respondents' explanations are hopelessly pathetic and embarrassing. I would recommend that Respondents' counsel read again the Applicant's WRITTEN SUBMISSIONS OF THE APPLICANT ON PRELIMINARY OBJECTION, and in particular, paragraphs 23 to the end where he explains the Rules, or some of them. I find there will be no prejudice to the Applicant if the Respondent is allowed to file a record and will give leave.
[5] Lastly, we have the question of costs. The applicant seeks $1,000.00 in costs payable by counsel personally. Costs on an Interlocutory Motion in writing in an application are unusual. The Respondent should have an opportunity to address the matter. The rules require that before costs are awarded against counsel personally, that counsel be given an opportunity to address the matter (Rule 404 (2)). This Court has made it plain that applications of prisoners have to be dealt with the same care as those of litigants who are not prisoners. However, that is not to say the some adjustments should not be made to take into account the situation of prisoners. It is my view that the unnecessary expense to which the Applicant has been put should be compensated, and to avoid further waste of time and expense, if possible, I would award a lump sum of $100.00 to cover the expenses of producing the materials submitted on this motion. Either party may address this matter further in writing and if neither does so within two weeks my Order will be that the Respondent place $100.00 to the credit of the Applicant forthwith.
ORDER
[6] The Respondent has leave to serve and file a record in accordance with Rule 310, in the light of the above reasons within the next 14 days.
[7] Either party may address the matter of costs in writing within the next two weeks. If neither party does so, the Respondents shall forthwith place $100.00 to the credit of the Applicant. In addition to the ordinary notice of this Order, the Registry should telephone (705) 924-2210, extension 8306, to ascertain the facsimile number to which a copy of the Order may be sent to the attention of the Applicant.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
June 8, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2351-00
STYLE OF CAUSE: EMILE MENNES
Applicant
-and-
LUCIE McCLUNG, OLE INGSTRUP, MICHEL
ROY, KAREN WISEMAN, LIZ ESHKROD, THE
COMMISSIONER OF CORRECTIONS, THE
CORRECTIONAL SERVICE OF CANADA, THE
NATIONAL LIBRARY OF CANADA THE
MINISTER OF NATIONAL HEALTH AND
WELFARE
Respondents
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: FRIDAY, JUNE 8, 2001
WRITTEN SUBMISSIONS BY: Emile Mennes
For the Applicant on His Own Behalf
Sogie Sabeta
For the Respondents
SOLICITORS OF RECORD: Emile Mennes
P.O. Box 760
Campbellford, Ontario
K0L 1L0
For the Applicant on His Own Behalf
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondents
FEDERAL COURT OF CANADA
Date: 20010608
Docket: T-2351-00
BETWEEN:
EMILE MENNES
Applicant
-and-
LUCIE McCLUNG, OLE INGSTRUP, MICHEL ROY, KAREN WISEMAN, LIZ ESHKROD, THE COMMISSIONER OF CORRECTIONS, THE CORRECTIONAL SERVICE OF CANADA,
THE NATIONAL LIBRARY OF CANADA
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondents
REASONS FOR ORDER
AND ORDER