Date: 20020320
Docket: T-37-02
Neutral citation: 2002 FCT 303
Toronto, Ontario, Wednesday, the 20th day of March, 2002
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
RODGER HERBERT MCDONALD
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
[1] On February 5, 2002, the Plaintiff, who is presently incarcerated in a federal penitentiary, brought a motion returnable at the General Sittings in Winnipeg on February 28, 2002 for an Order directing that the Defendant release to the Plaintiff records pertaining to his institutional history at the Stony Mountain Institution and certain records relating to another inmate. The motion was subsequently rejected on the grounds that it was not in the form as required under Rule 364 of the Federal Court Rules, 1998.
[2] The Plaintiff also filed at the same time anex parte motion in writing and pursuant to Rule 45 of the Federal Court Rules, 1998 for an Order requiring the Correctional Service of Canada to permit the Plaintiff to appear in person on February 28, 2002 for the hearing of the Plaintiff's motion. The Plaintiff's Rule 45 motion was dismissed by Order dated February 6, 2002, the Plaintiff having failed to establish that it should be disposed of without notice to the Defendant or that his attendance in person before the Court was required, particularly in light of other options such as proceeding by teleconference or in writing pursuant to Rule 369.
[3] On March 8, 2002, the Plaintiff filed a second ex parte motion in writing seeking relief pursuant to Rule 45, this time for an order compelling his attendance in person for the hearing of a fresh motion filed on March 6, 2002 and returnable on March 26, 2002. The Court of its own motion directed the Registry to serve the Defendant with the Plaintiff's motion record.
[4] The Plaintiff submits that he does not have access to legal resources, research materials or computer services to permit him to argue his motion on an equal footing with the Defendant in written format. The Plaintiff also submits that the issues related to his motion are "factually complicated" and that it would therefore be difficult to attempt to deal with such matters by telephone.
[5] The Defendant responds that the Plaintiff is not required to file computer generated documents and that, in any event, all of the materials filed by the Plaintiff to date have been prepared on computer, suggesting that the grievance is unfounded. With respect to legal resources and research materials, the Defendant submits that the Plaintiff would be in the same position whether he appears in person or makes written submissions. The Defendant points out that request to attend in person relates to an interlocutory motion simply seeking as relief an injunction to keep the Plaintiff in Manitoba while in custody and production of certain documents. The Defendant submits that the issues raised by the motion are not complicated and should therefore be dealt with in writing.
[6] The Court is given the discretion under Rule 45 whether to compel the attendance of a person in custody for a hearing. Such relief should be granted sparingly in the case of interlocutory motions and only where the detainee can clearly establish that his attendance is necessary [see Wedow v. Canada (Correctional Service)(April 18, 2001), Doc. T-1232-00, 2001 FCT 351 (T.D.)].
[7] The Plaintiff has failed to provide any valid reason why his personal attendance is necessary for disposition of his motion. Given the nature of the relief sought in the Plaintiff's motion returnable on March 26, 2002, I am satisfied that the issues can be fully and adequately addressed either in writing or by teleconference. I need not determine in the circumstances whether the Plaintiff, by seeking the same relief which has already been denied by the Court, abused the Court's process.
[8] The motion is dismissed. The hearing of the Plaintiff's motion filed on March 6, 2002 shall proceed by teleconference.
ORDER
IT IS ORDERED THAT:
1. The Plaintiff's motion is dismissed.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
March 20th , 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-37-02
STYLE OF CAUSE: RODGER HERBERT MCDONALD
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE P.
DATED: WEDNESDAY, MARCH 20, 2002
WRITTEN SUBMISSIONS BY: Rodger Herbert McDonald
For the Applicant, on his own behalf
Aliyah Rahaman
For the Respondent
SOLICITORS OF RECORD: Rodger Herbert McDonald
Stoney Mountain Institution
P.O. Box 4500
Winnipeg, Manitoba
R3C 3W8
For the Applicant, on his own behalf
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020320
Docket:T-37-02
Between:
RODGER HERBERT MCDONALD
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
AND ORDER