Date: 20000816
Docket: T-1906-98
BETWEEN:
NANCY MARTEL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] On October 5, 1998 the plaintiff brought an action against the defendant in the amount of $800.
[2] An amended statement of claim was entered in the record of the Court on December 7, 1998.
[3] The defendant filed her defence on January 6, 1999 and the plaintiff filed her reply in the record of the Court on January 18, 1999.
[4] The defendant proceeded to examine Nancy Martel, the plaintiff. Certain objections were raised and the prothonotary Richard Morneau made an order on December 15, 1999: that decision directed the plaintiff Nancy Martel to be re-examined by the defendant. A new order by the prothonotary Richard Morneau on February 7, 2000 directed that the re-examination of Ms. Martel was to be on February 28 or 29, 2000, at a time and place to be set by counsel for the defendant. The order further indicated that the undertakings made at the first examination were to be filed by February 14, 2000 at the latest.
[5] It appeared that on May 30, 2000 the plaintiff, through her counsel, filed a document in response to the undertakings given earlier.
[6] It appeared from counsel for the defendant that the reply of May 30, 2000 was still far from satisfying the undertakings given by the plaintiff or the order of the prothonotary Morneau, dated December 15, 1999.
[7] In the meantime, the Associate Chief Justice issued a status review notice on April 17, 2000, which in accordance with the usual procedure was sent to the parties by fax on April 19, 2000.
[8] As the plaintiff filed no reply to this status review notice Pelletier J. on June 22, 2000 issued an order in which the action at bar was dismissed for delay.
[9] When the plaintiff received a copy of this judgment she filed this motion asking the Court to quash the order made on June 22, 2000.
[10] The plaintiff filed an affidavit by Nathalie Bélanger, a legal secretary, that neither Ms. Bélanger nor Mylène Cyr, the counsel of record, had received or had any knowledge of the status review notice sent to them on April 19, 2000.
[11] The plaintiff established to the Court's satisfaction that she was unable to file written arguments in reply to the status review notice since she did not receive it.
[12] The order by Pelletier J., dated June 22, 2000, is accordingly quashed.
[13] The plaintiff further submitted written arguments to the effect that following the status review notice the plaintiff did everything in her power to move the latter forward in the usual way and the action at bar should not be dismissed for delay.
[14] The plaintiff also submitted that all the necessary pleadings had been entered in the record and the plaintiff had carried out her undertakings.
[15] On the other hand, counsel for the defendant argued that the plaintiff was responsible for nearly all the delays occurring in the case at bar, that the plaintiff had several times refused to cooperate, which resulted in delays in the examinations, and that further, the last letter sent on May 30, 2000 in an attempt to respond to the undertakings given earlier was in the circumstances entirely inadequate.
[16] Counsel for the defendant submitted that the inadequacy of the replies given to the questions and requests by the defendant fully justified the decision by Pelletier J. to dismiss this action, and there was no basis for continuing it.
[17] I have carefully analysed the arguments of the two parties, and I conclude that the plaintiff did not cooperate properly with the defendant, especially following the orders made in this matter by the prothonotary Morneau.
[18] Nonetheless, it would be excessive to dismiss the action at this stage, and despite the deficiencies in the cooperation offered by the plaintiff she deserves an opportunity to complete her case.
Consequently, THE COURT ORDERS THAT
The order made by Denis Pelletier J. on June 22, 2000 be quashed;
In accordance with the arguments made by the two parties in reply to the status review notice, the instant action should continue;
In view of the unsatisfactory response given by the plaintiff on May 30, 2000 to the undertakings made earlier, the Court allows a further 20 days from the date of his order for additional responses to be given to the undertakings made in the examinations;
If the responses given by the plaintiff still do not meet the defendant's requirements, the defendant will have a further 20 days from receipt of the additional information supplied by the plaintiff to file a motion in Court for a decision on the objections to the documents filed;
Within a further 60 days, either from the decision on the motion currently made by the defendant or from the deadline set for filing the said motion, the plaintiff shall submit a motion for a pre-trial conference accompanied by a memorandum, pursuant to the provisions of s. 258 of the Federal Court Rules, 1998.
Pierre Blais
Judge
OTTAWA, ONTARIO
August 16, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-1906-98
STYLE OF CAUSE: NANCY MARTEL v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 31, 2000
REASONS FOR ORDER BY: BLAIS J.
DATED: August 16, 2000
APPEARANCES:
Mylène Cyr FOR THE PLAINTIFF
Francis Archambault FOR THE DEFENDANT
SOLICITORS OF RECORD:
Mylène Cyr FOR THE PLAINTIFF
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada