Date: 19990708
Docket: T-379-95
Ottawa, Ontario, July 8, 1999
Before: Pinard J.
Between:
Mengo Bitha MUNSI,
Schlusselgasse 11/27, Vienna,
Austria and James KUONG,
7795 Mountain Sights, apt.
143, Montréal,
Plaintiffs,
- and-
HER MAJESTY THE QUEEN,
Defendant.
Application by the plaintiffs to appeal a decision of the prothonotary Richard Morneau, made on April 14, 1999 (Rule 51 of the Federal Court Rules (1998)).
ORDER
The plaintiffs" application is dismissed with costs.
| YVON PINARD JUDGE |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990708
Docket: T-379-95
Between:
Mengo Bitha MUNSI,
Schlusselgasse 11/27, Vienna,
Austria and James KUONG,
7795 Mountain Sights, apt.
143, Montréal,
Plaintiffs,
- and-
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
PINARD J.
[1] On January 21, 1999, in this case which had until then remained completely inactive since May 28, 1997, the Court issued a status review notice pursuant to Rule 380. In accordance with that notice a prothonotary, Mr. Morneau, first made the following order on March 2, 1999:
| [TRANSLATION] |
| Pursuant to the status review notice ("the notice") issued in this case and before the Court decides on the fate of the case pursuant to the notice, counsel for each party shall within 20 days of this order submit to the Court a schedule covering action to be taken subsequently in the case, in the event that the Court allows the case to go forward. Any schedule proposed by the parties shall be limited to essential action to be taken and shall be forthcoming as speedily as possible. Paragraph 23 of the written submissions filed by counsel for the plaintiffs on February 22, 1999 is too vague in this regard. Any schedule must take into account the steps mentioned by counsel for the defendant in his submissions filed on February 25, 1999. |
[2] As the plaintiffs did not appear within the specified deadline the prothonotary dismissed their action by the following order on April 14, 1999, which is the subject of the appeal at bar:
| [TRANSLATION] |
| IN VIEW OF the status review notice issued by this Court on January 21, 1999; |
| WHEREAS by order of this Court on March 2, 1999 the parties were given 20 days to submit a schedule to the Court covering action to be taken subsequently in the case, in the event that the Court allowed the case to go forward; |
| WHEREAS the 20-day deadline has now expired and the plaintiffs have not submitted such a schedule; |
| IT IS HEREBY ORDERED pursuant to Rule 382(2)(a) of the Federal Court Rules (1998) that this action be dismissed. |
[3] The plaintiffs explained their failure to act between May 28, 1997 and the expiry of the 20-day deadline allowed by the prothonotary in his order of March 2, 1999 above in the following paragraphs in the affidavit of Jocelyne-Ann Proulx, secretary and office manager of the firm of their counsel Mr. Istvanffy:
| [TRANSLATION] |
| 3. The tragic story of her death [the plaintiff Kuong's wife] in October 1996 upset us completely and somewhat explains the delay in this matter; |
| 4. We received a status review notice in this matter dated January 21, 1999 which was served on us in the last week of January of this year; |
| 5. Mr. Istvanffy was not in Montréal in the first two weeks of February 1999 and had to argue three cases in the Federal Court during the week of February 15, 1999; |
| 25. We apologize for the time that has elapsed without our taking action in this matter: we feel this is due to the quantity of office work and also the trauma which our entire office underwent in this case; we do not want the case to be dismissed without a judge having a chance to rule on the merits; |
| 29. I can confirm that we had two urgent cases involving a drama for a Congolese family and the deportation of a Ghanaian, which took up all our time in the week of March 15, 1999 . . . |
[4] As the order concerned in the instant appeal deals with matters that have a determining effect on the outcome of the principal proceeding, since it dismisses the plaintiffs' action, this Court now has to consider the matter de novo (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, F.C.A.).
[5] In view of the evidence, and in particular the explanations submitted in an effort to justify the plaintiffs' failure to act since May 28, 1997, I feel it was entirely reasonable for the prothonotary to initially request that the parties file a schedule within twenty days. In these circumstances, the plaintiffs' failure to file their schedule within this specific deadline requires persuasive explanations to justify the entire delay.
[6] In this connection, the only explanations in evidence are contained in paragraphs 25 and 29 above of Jocelyne-Ann Proulx"s affidavit, and are clearly insufficient. The workload of counsel and a "trauma" resulting from subjective problems of his or her clients extending over several months, or even years, clearly cannot constitute valid excuses for the period preceding March 15, 1999, the date after which all of counsel for the plaintiffs' time was required for one week to handle two urgent cases. In these circumstances, the plaintiffs' failure to act within the deadline specified in the foregoing order of March 2, 1999 is sufficient to result in the dismissal of their action (see Baroud v. Canada , November 24, 1998, IMM-491-94, F.C.T.D.).
[7] The plaintiffs' application is accordingly dismissed with costs.
| YVON PINARD JUDGE |
OTTAWA, ONTARIO
July 8, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-379-95 |
| STYLE OF CAUSE: MENGO BITHA MUNSI AND JAMES KUONG v. HER MAJESTY THE QUEEN |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 14, 1999
REASONS FOR ORDER BY: PINARD J.
DATED: July 8, 1999
APPEARANCES:
| Stewart Istvanffy FOR THE PLAINTIFF |
| Daniel Latulippe FOR THE DEFENDANT |
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada