Date: 19990129
Docket: T-2643-93
BETWEEN:
LOUISE MARTIN, ANDRE MARTIN AND MICHEL MARTIN
Minors by their Litigation Guardian, Louise Martin
Plaintiffs
- and -
HER MAJESTY THE QUEEN, IN RIGHT OF CANADA,
BY HER MINISTER OF EMPLOYMENT AND IMMIGRATION
Defendant
REASONS FOR ORDER
(In part filed pursuant to Section 51 of the Federal Court Act)
GIBSON J.:
BACKGROUND
[1] By order dated the 2nd day of June, 1998, made on joint application of counsel for the parties, the trial of this matter was scheduled for three weeks in London, Ontario beginning the 18th of January, 1999 at 10:00 a.m.
[2] On Friday, December 18th , 1998, a trial management conference was convened by teleconference1. I presided at that conference as designated trial judge. A number of issues were discussed relating to management of the trial within the time allotted. No indication was given that either party would be unprepared or unable to proceed on the date fixed.
[3] By letter dated January 4, 1999, the Court was advised that lead counsel for the plaintiffs had been called to trial in the Ontario Court (General Division) in London commencing that day. The trial to which counsel had been called was scheduled for three weeks, thus overlapping with the time fixed for the trial of this matter by one full week. Counsel had been advised only on Thursday, December 31 that the conflicting trial would commence on January 4th. A further trial management conference was held by teleconference on Friday, January 8th . At the conclusion of that conference, I advised Counsel that the trial of this matter would proceed as scheduled and that, if necessary, plaintiffs" witnesses could, with some reservations, be examined out of what would be the ordinary order.
[4] By letter dated January 14th , counsel for the plaintiffs advised the Court and counsel for the defendant that a motion would be brought at the opening of trial on January 18th to have the trial adjourned or stood down. The motion, supported by two affidavits, was delivered on January 15th. The affidavit of Louise Martin, the principal plaintiff, outlined the sensitive nature of the evidence that she would be required to give at the trial and emphasized her reliance on her lead counsel with whom she had "...established a relationship of trust in which [she could] openly discuss these sensitive issues." Ms. Martin attested that she had no equivalent relationship with co-counsel. Her affidavit provided:
I am not comfortable having [co-counsel] take the lead in this matter.
[5] The affidavit of lead counsel elaborated on the relationship that had developed between Ms. Martin and herself and on the efforts that she had made, without success, to adapt her schedule so that she would be available for the commencement of the trial of this matter.
[6] At the opening of trial on Monday, January 18, plaintiffs" co-counsel presented the motion to adjourn the trial or stand the matter down. After hearing counsel for both sides, I rejected the motion. A copy of my order of that day is attached as Schedule A.
[7] Following disposition of the motion on behalf of the plaintiffs, the trial proceeded in accordance with my order of that date. Late on the afternoon of the second day of trial, counsel for the plaintiffs requested a meeting in chambers. At that meeting, counsel advised that information had come to his attention that day which would result in further prejudice to the plaintiffs in presenting their case if the trial continued in accordance with my order of January 18th. Two alternative courses of proceeding were presented to counsel for the plaintiffs for his consideration. Apparently neither course was acceptable.
[8] On the morning of the third day of trial, Wednesday January 20th, counsel for the plaintiffs presented an oral motion requesting that I either withdraw my order of January 18th completely or vary it. Once again, following submissions from counsel, I rejected the motion by order. A copy of that order is attached as Schedule B to these reasons. I gave oral reasons from the bench. What follows is a transcription of those oral reasons with slight editorial modifications and citations added.
REASONS DELIVERED FROM THE BENCH FOR AN ORDER IN THIS MATTER DATED JANUARY 20TH, 1999
REASONS FOR RULING
| [9] THE COURT: I will give you my ruling on what I take to be an oral motion without notice presented on behalf of the plaintiffs this morning. |
| [10] I will reject the motion to adjourn or stand this matter down until Monday next on two grounds. First, counsel for the plaintiffs is inviting me to revisit my decision on Monday, January 18th which is the subject of a formal order of this court of that date. In essence counsel is inviting me to reverse my decision or to vary my decision but in essence I am satisfied it is to reverse my decision. I am satisfied that I have no authority to entertain a motion that is in the nature of an appeal from my own decision. |
| [11] If what counsel is asking for could be interpreted to be a variance of my order of January 18th, my authority to vary to which I have been referred by Mr. Morris is contained in Federal Court Rule 399 (2) and in particular, paragraph (a) thereof which allows me to set aside or vary an order by reason of a matter that arose or was discovered subsequent of the making of the order. |
| [12] Counsel for the plaintiffs has made it clear in submissions that while a matter has been discovered subsequent to the making of my earlier order, I am not satisfied that that matter is within the contemplation of Rule 399 (2)(a), nor of course is it the totality of the reasons that this matter is now being raised. |
| [13] As to a matter discovered subsequent to my order, in the very brief time that I have had to consider this, I refer to Saywack v. Canada (Minister of Employment and Immigration,2 a 1986 decision of the Federal Court of Appeal which is summarized at page 703 of the 1999 Federal Court Practice, commonly referred to as "Sgayias". The Federal Court of Appeal in that matter as summarized, indicates that, first, "To obtain relief, an applicant must establish that the new matter was discovered subsequent to the judgment impugned" and I am satisfied that is made out here. |
[14] Secondly, the applicant must establish that the new matter "...could not with reasonable diligence have been discovered sooner" and thirdly, "...is of such character that if it had been brought forward in the action, it would have altered the judgment." Without getting to the third element of the test, I am not satisfied that the new matter could not with reasonable diligence have discovered sooner. On that basis, I am satisfied that Rule 399 does not constitute authority for me to grant the order that counsel is seeking.
| [15] Counsel has argued that my order of January 18th, in the circumstances now discovered or reviewed, works to the substantial prejudice of the plaintiff. If that be the case, I substantially regret it. |
| [16] Counsel urges that the prejudice arises as a result of the splitting of the case. I cannot agree with that submission. If prejudice arises, it arises as a result of the unavailability of counsel of the plaintiffs" choice and neither the defendant nor the Court can be held responsible for that unavailability. |
| [17] In essence, the principal plaintiff was put to an option; splitting the case or not being examined by the counsel of her choice. No other alternatives that I am aware of were seriously advanced. The Court made the order that it did on January 18th as the only alternative that it could see available to it to accommodate the principal plaintiff"s desire to be examined by counsel of her choice while at the same time proceeding with the trial of this matter as scheduled. |
| [18] Counsel has referred me to cases dealing with the issue of removal of counsel and relies on those cases by analogy. I refer to the T1T2 Limited Partnership3 case to which counsel has referred me. |
| [19] Before doing that, that takes me into another subject matter, I will go to the Flynn4 case. The head note to that case to which I was referred reads in part, "The right of the defendant to counsel of her choice does not override the public interest in the administration of justice by having lawyers avoid the appearance of impropriety." By analogy, to paraphrase those words, the right of a plaintiff to counsel of her choice does not override the public interest in the expeditious and effective administration of justice in accordance with the tradition of this Court of commencing trials on days fixed by Court order substantially in advance of the date identified. |
| [20] The T1T2 Limited Partnership reasons provide in essence that actual prejudice to the defendant should, in circumstances such as this, be necessary to justify denial of an adjournment. There a delay of ten weeks was contemplated. Here, while a delay of three days only is contemplated, it is entirely possible that that delay would result in this trial not being completed within the time allotted for completion of the trial, that is to say, three weeks, that time having been allotted in consultation with counsel. If the case were not completed within the three weeks, given the schedules of counsel and the schedule of the court, it is entirely possible that the resultant delay would be substantially in excess of ten weeks. |
| [21] This matter was commenced in this Court in 1993. It is not in the interests of justice that the risk of further substantial delay be assumed. |
| [22] For all of the foregoing reasons, the oral motion on behalf of the plaintiffs is dismissed. |
SUBSEQUENT EVENTS
[23] An appeal was filed from my orders that are in issue. Following an urgent teleconference hearing before the Court of Appeal on Friday, January 22nd, Mr. Justice Strayer issued an order in the following terms:
The motion for a stay or adjournment of the trial is dismissed with costs in the cause.
The oral request by counsel that this Court give directions as to the hearing of further liability evidence is also dismissed, this being a matter for determination by the trial judge.
_____________________________
Judge
Ottawa, Ontario
January 29, 1999
__________________
1 See: Federal Court Rules , 1998, Rule 270; SOR/98-106.
3 T1T2 Partnership v. Canada (Attorney General), [1995] O.J. No. 3049, October 18, 1995 (Q.L.).
4 Flynn Development Ltd. et al. v. Central Trust Co. (1985), 51 O.R. (2d) 57.