Date: 20041001
Docket: T-678-03
Citation: 2004 FC 1354
BETWEEN:
JOHN LEONARD
Appellant
- and -
THE HON. ROBERT D. NAULT
in his capacity as
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
- and -
ALICE CATHERINE McCALEB
Respondents
REASONS FOR ORDER
GIBSON, J.
INTRODUCTION
[1] By amended notice of motion filed April 28, 2004, John Leonard (the "Appellant") seeks the following:
a. an Order to:
i.extend the time to appeal from the Order of Prothonotary Tabib of January 23, 2004, pursuant to R. 8 and grant leave to appeal therefrom pursuant to R. 352(1); and
ii.set aside the January 23rd Order dismissing the Appellant's appeal for delay;
pursuant to this Court's powers under R. 51 and s. 46(1)(h) of the Federal Court Act;
b. in the alternative, an Order to:
i.set aside the Order of Prothonotary Tabib of April 13, 2004, which dismissed John Leonard's motion to set aside the January 23rd Order dismissing the appeal, pursuant to this Court's powers on appeal from a prothonotary's order pursuant to R. 51 and s. 46(1)(h) of the Federal Court Act;
c. an Order to continue this appeal as a specially managed proceeding pursuant to R. 382(2)(c);
d. the whole without costs unless this motion is opposed.
[2] At the close of the hearing of this matter at Vancouver on September 29, 2004, I advised counsel that the Appellant's motion would be dismissed and briefly outlined my reasons for arriving at that conclusion. At the request of the Court, counsel briefly spoke to the issue of costs.
[3] These reasons record more formally the reason for my decision herein and for my decision regarding costs.
BACKGROUND
[4] This proceeding was commenced by Notice of Appeal under section 47 of the Indian Act[1] from a decision of the Minister of Indian Affairs and Northern Development dated February 28, 2003, by which he denied the Appellant's request to have the Last Will and Testament of Mary Leonard of Kamloops, British Columbia, declared void pursuant to the authority conferred on the Minister by section 46 of the Indian Act. The respondent Minister filed a notice of appearance on May 8, 2003. The respondent Alice Catherine McCaleb filed a notice of appearance on July 28, 2003, pursuant to an order of this Court extending the time within which to file such appearance.
[5] No further substantive steps having been taken, a notice of status review issued on December 1, 2003.
[6] By letter dated December 12, 2003, counsel for the Appellant responded to the notice of status review. The substance of that response is in the following terms:
I wish to inform the Court that the Appellant has approached counsel for the Respondent, Ms. McCaleb and proposed the basis for settlement discussions. Counsel for the Respondent, Ms. McCaleb, has recently requested further information as a basis for any settlement discussions. We are in the process of gathering information and providing that material.
We propose that this matter be put in abeyance until June 30, 2004, so that there will be an opportunity for settlement negotiations.
[7] Counsel for the respondent Minister replied to the notice of status review by letter dated January 5, 2004, in which she indicated that the Minister took no position in respect of the Appellant's request for an extension of time. Counsel did advise that, on behalf of the respondent Minister, in June 2004 she had agreed to hold the matter in abeyance pending counsel for the Appellant obtaining instructions.
[8] Counsel for the respondent Ms. McCaleb responded to the notice of status review with more extensive written submissions and supporting material filed January 12, 2004. After citing the test for determining whether a person such as the Appellant in this matter has shown cause why a proceeding should not be dismissed for delay on status review that is provided in Baroud v. Canada (Minister of Citizenship and Immigration)[2], counsel for Ms. McCaleb noted that the Appellant had taken no steps to move the appeal forward and provided evidence and submissions speaking to the very limited and tentative steps toward settlement discussions that had taken place.
[9] By order dated January 23, 2004, Prothonotary Tabib dismissed the Appellant's appeal for delay. She wrote:
Settlement discussions are not generally considered to be sufficient justification for delay. In the present case, as further detailed in the written representations and supporting affidavit filed on status review by the Respondent McCaleb, settlement discussions were, to say the least, sporadic (there was a brief exchange in mid-July 2003 and again, in mid-November to early December 2003). Certainly, it cannot be said that the Respondent McCaleb gave any indication that it favoured exploring settlement avenues over expeditious proceedings, which could at least form the basis of an argument that the Respondent encouraged, contributed or condoned the delay. The correspondence exchanged in fact demonstrates the opposite. This therefore cannot be one of these rare cases where delay caused by settlement negotiations can, if not be condoned or seen as justification, at least be forgiven.
On the other side of the equation, the Appellant's "plan" to move matters forward - by staying the proceeding for a further, inexplicable, six months, when there appears to be at the current time no reasonable prospect of settlement - utterly fails to satisfy the onus placed on the Appellant by the test developed in Baroud v. Canada.
[10] By motion filed February 2, 2004, the Appellant sought review of Prothonotary Tabib's order just referred to, pursuant to Rules 397 and 399. By order dated April 13, 2004, Prothonotary Tabib dismissed the Appellant's motion. After dealing with an objection to the form of the Respondent's submissions on status review which the learned Prothonotary referred to as "...purely technical", Prothonotary Tabib explained her rationale for deciding as she did in three paragraphs incorporated in a preambulatory manner in her order. Those paragraphs are reproduced as a Schedule to these reasons.
[11] Of particular note is Prothonotary Tabib's reference to the existence of a British Columbia Supreme Court action instituted in 1997 that is inextricably interwoven with the appeal that is, or was, before this Court and which is simply ignored in the Appellant's submissions on status review.
ANALYSIS
[12] At the opening of the hearing, the Court advised counsel that it had reviewed the submissions of the parties with respect to an extension of time to file this appeal and that, based on those submissions, without hearing oral submissions on the subject, the Court would grant an extension of time to file to the time of actual filing. Leave of this Court to commence the Appellant's appeal, as requested in the reliefs reproduced in paragraph [1] of these reasons, was not required.
[13] The standard of review on this appeal was essentially not in dispute. Against the test set forth in Canada v. Aqua-Gem Investments Ltd.[3], the matters on appeal before the Court were heard de novo. As my colleague Justice Harrington wrote in Interbox Promotion Corp. v. 9073-0433 Quebec Inc.[4]:
Nothing can be more final than a dismissal of an action.
The same must be said about the dismissal of an appeal which is the substance of the first order of Prothonotary Tabib that is here before the Court. Prothonotary Tabib's second order that is before the Court effectively dismisses a motion for relief against dismissal of the appeal. As such, it too is final in its nature.
[14] Earlier in these reasons, reference is made to Baroud v. Canada[5]. In his reasons in that matter, Justice Hugessen wrote at paragraph 4:
In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions:
1) What are the reasons why the case has not moved forward faster and do they justify the delay that has occurred?; and
2) What steps is the Plaintiff now proposing to move the matter forward?
For whatever reason, counsel for the Appellant failed to put his best foot forward in replying to the notice of status review. He relied solely on vague references to settlement discussions, the substance of which, when disclosed in the submissions and supporting material of counsel for McCaleb, proved to be equally vague and unsubstantial. He proposed no steps to move the matter forward. Rather, without seeking case management or a stay under section 50 of the Federal Court Act[6], he simply proposed a further delay of some six months before any substantive step would be taken or even contemplated with respect to the appeal. He did not disclose the inter-related litigation before the British Columbia Courts.
[15] Counsel for the Appellant urged before the Court that status review is a mechanism to move matters forward, not a guillotine. I would agree with counsel's submission subject to the following: counsel for the initiating party is under an onus to move his or her matter forward. Where he or she has failed to do so, provides no proposal for doing so in his or her status review submissions and provides no rational explanation as to why the matter has not moved forward and cannot now move forward, then status review is in the nature of a guillotine, a procedure whereby matters before the Court that have not proceeded with despatch and on which no assurance is given that they will in the future be proceeded with, with despatch, can be culled in order that other matters that are proceeding with despatch can be more efficiently and effectively dealt with. This Court, like others, is under a heavy case load burden. In this day and age, this Court, like others, is under an obligation to make its services available in an efficient and effective manner to those who are ready to use them. It follows that this Court, like others, is under a concommittant obligation to only minimally divert its resources to matters that have not moved forward efficiently and effectively and on which there is no reliable prospect that that situation will change. Such is the case here.
[16] In the result, exercising my jurisdiction de novo, the Appellant's appeal from Prothonotary Tabib's order herein dated January 23, 2004, will be dismissed.
[17] Rule 397 and Rule 399(2) of the Federal Court Rules, 1998[7]read as follows:
| 397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
... |
397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour.
...
|
| 399. (2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
|
399. (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants :
a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue;
b) l'ordonnance a été obtenue par fraude.
|
[18] Referring to Rule 397, counsel for the Appellant does not suggest that Prothonotary Tabib's order of April 13, 2004, does not accord with the reasons given for it, such reasons being incorporated within the body of the Order itself. I am satisfied that Prothonotary Tabib's order of January 23, 2004, did not overlook or accidentally omit any matter that was before the learned Prothonotary and that should have been dealt with. The fact that it did not take into account matter that was not put before her is, I am satisfied, irrelevant. Rule 397 is not intended to give persons such as the Appellant, on the facts of this matter, a second opportunity to "make good" what he or she failed to "make good" in responding to a notice of status review.
[19] Rules 399(1) and (3) are not relevant for the purposes of this matter. No matter was before Prothonotary Tabib that arose subsequent to the making of her status review order. Further, I am satisfied that it cannot be said that additional material put before her following the making of her status review order could be said to have been discovered subsequent to the making of that order. There was certainly no allegation of fraud at any stage in this proceeding.
[20] Based upon the foregoing brief analysis, I am satisfied that, once again considering de novo the matter that was before Prothonotary Tabib when she made her order of April 13, 2004, like Prothonotary Tabib, I would dismiss the motion that was then before her.
CONCLUSION
[21] For the foregoing reasons, the motion that is before the Court will be, in all respects, dismissed.
COSTS
[22] Given the foregoing result, an order will go for costs in favour of the Respondent Alice Catherine McCaleb, both in respect of the appeal dealt with in these reasons and in respect of all aspects of the Appellant's appeal instituted by notice of appeal filed April 28, 2003. There will be no order as to costs for or against the respondent Minister.
(Sgd.) "Frederick E. Gibson"
Judge
Vancouver, BC
October 1, 2004
SCHEDULE
As to the facts which the Appellant says were inappropriately omitted from the Respondents' submissions and which he wishes me to now consider, neither the existence of the British Columbia's Supreme Court Action, instituted in 1997, nor the Appellant's decision to proceed with this action, taken on December 1, 2003, constitute a "new" matter giving rise to the relief contemplated in Rule 399(2)(a). They both occurred before the Appellant's representations on status review were even filed. If they had any relevance to the issues to be determined on status review (i.e. as justification for the delay or as a factor to be considered in devising a plan to move forward with the application), the Appellant could and should have brought them to the Court's attention in his initial submissions on status review. The Appellant's alleged difficulty in serving its notice of intention to proceed with that action and his ultimate success in doing so cannot have any relevance to the issues to be determined on status review. They neither caused the delay nor prevented the Appellant's elaboration of a plan to move the matter forward. The Pine Acres' documents are not "newly discovered documents". There is no evidence that the Appellant or its counsel only recently became aware of their potential existence or relevance to this matter.
In the final analysis, all the facts the Appellant now wishes me to consider were known to him at the time, but their alleged influence on the conduct of these proceedings were simply not brought forward or articulated as a justification for the delay. Rules 397 and 399 are not meant to allow a party to reargue its case after an unfavourable decision. I would add that even had this information been brought to my attention on status review, it would not have influenced my decision. Even in his new submissions, the Appellant has failed to establish that the existence and manner of prosecution of the British Columbia action justified the delay in proceeding with the application herein expeditiously. A party's unexplained failure to diligently proceed with a proceeding in another jurisdiction can hardly serve as an explanation - let alone a justification - for his failure to proceed with the present proceedings. The Appellant's sudden enthusiasm for proceeding in the British Columbia action has not even now been matched by a similar desire to proceed in the present matter; the Appellant still seeks to leave this litigation in abeyance in the hope that it will settle - despite the Respondents' clear indication to the contrary.
Finally, even though it was not specifically argued at the oral hearing before me, the Appellant's request for an extension of time to file representations on status review is dismissed. Having issued an order on status review, I am functus officio, and can no longer extend the Appellant's time to file, unless the conditions contemplated in Rules 397 and 399 for re-opening my order are met. In this regard, I adopt the arguments put forward by the Respondent McCaleb at paragraphs 47 and 48 of her written representations.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-678-03
STYLE OF CAUSE: JOHN LEONARD
v. THE HON. ROBERT D. NAULT in his capacity as MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 29, 2004
REASONS FOR ORDER: GIBSON, J.
DATED: October 1, 2004
APPEARANCES:
Mr. David Schulze FOR APPELLANT
Ms. Chandra Corriveau
Mr. Michael A. Miller FOR RESPONDENT,
Mr. James FarenholtzAlice Catherine McCaleb
Ms. Janice RodgersFOR RESPONDENT,
Robert D. Nault, in his capacity
as Minister of Indian Affairs and
Northern Development
SOLICITORS OF RECORD:
Hutchins, Soroka & GrantFOR APPELLANT
Vancouver, BC
Michael A. Miller
Barrister & SolicitorFOR RESPONDENT,
Vancouver, BCAlice Catherine McCaleb
Mr. Morris RosenbergFOR RESPONDENT,
Deputy Attorney General of CanadaRobert D. Nault, in his capacity
as Minister of Indian Affairs and
Northern Development