Date: 19991202
Docket: T-387-96
Ottawa, Ontario, the 2nd day of December 1999
PRESENT: The Honourable Madame Justice Sharlow
BETWEEN:
REVEREND BROTHER WALTER A. TUCKER
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
ORDER & REASONS FOR ORDER
[1] On February 19, 1996, the Plaintiff commenced an action for the return of money and property unlawfully seized by the R.C.M.P. in 1990 that the Plaintiff alleges has not been returned. In its Defence, filed on March 27, 1996, the Crown alleges that the R.C.M.P. have returned the money that was taken except for some American silver dollars, which are being held at the offices of the R.C.M.P. in Hamilton awaiting pick-up by the Plaintiff. The Crown denies that the R.C.M.P. has in its possession any other property of the Plaintiff that was illegally seized.
[2] It appears that the Plaintiff took no further steps in the litigation and on February 4, 1999, a notice of status review was issued by Blais J. pursuant to Rule 381 of the Federal Court Rules, 1998.
[3] Those rules came into force in March of 1998, and replaced the rules that were in effect when this action was commenced. The rules relating to status reviews apply to this proceeding.
[4] The notice of status review said this:
| The Plaintiff is required to show cause by written submissions, to be served and filed no later than Monday, March 8th 1999, why this action should not be dismissed for delay. |
[5] On April 21, 1999, the Plaintiff filed a notice of motion requesting an extension of time for responding to the notice of status review and also seeking alternative relief. The alternatives sought were (1) an order permitting the late filing of a reply, (2) an order that this proceeding be allowed to continue as a specially managed proceeding, and (3) an order that this proceeding be joined to the proceedings in Court File No. T-1805-98 (an action commenced in September 16, 1998 for a declaration that the Controlled Drugs and Substances Act are unconstitutional in so far as they pertain to cannabis, marijuana and other substances).
[6] In response to that motion, the Prothonotary issued an order extending to July 15, 1999 the time for filing submissions. He specifically directed the Plaintiff to answer these questions:
| 1. What steps have been taken by the Plaintiff since the issuance of the originating document on February 19, 1996? |
| 2. What are the reasons the proceeding has not moved faster? |
| 3. What steps is the Plaintiff now proposing to move the matter forward? |
[7] The Plaintiff's submissions were filed on July 9, 1999. The Prothonotary reviewed the submissions and concluded that except for the filing of a change of address and the motion filed on April 21, 1999 in response to the notice of status review, the Plaintiff had taken no steps in this proceeding and had offered no explanation for the delay. On that basis, he dismissed the action for delay. Before me is the Plaintiff's appeal of that order.
[8] In The Queen v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, the Federal Court of Appeal held that where a motion granted by a Prothonotary has the effect of disposing of an action and the decision of the Prothonotary is appealed, the Judge hearing the appeal must consider the motion anew. In this case the Prothonotary's order was not a motion but a notice of status review, but the same principle should apply.
[9] The Plaintiff made a number of points in his July 9, 1999 submissions.
[10] First, the Plaintiff says he did not learn of the notice of status review until April 20, 1999, presumably because of a number of changes of address. He immediately filed the notice of motion referred to above asking for additional time and other relief.
[11] The problem of inadequate notice of the status review was cured when the Prothonotary granted additional time to respond. The fact that the Plaintiff was not aware of the notice of status review when it was first issued in February of 1999 does nothing to explain his failure to take any steps in this proceeding before that time.
[12] The Plaintiff says he has been subject to numerous unjust acts by the police and other authorities, including the unlawful seizure. That may be so. But it does not explain why the Plaintiff has not taken any steps in this proceeding.
[13] The Plaintiff says that the claim is a relatively simple one and can be dealt with expeditiously. That may be so. But it does not assist in explaining the Plaintiff's inaction.
[14] The Plaintiff makes two points with respect to the steps taken by the Defendant. First, he says that the Defendant has not taken steps to have this proceeding dismissed for delay. Second, he argues that it is unfair to hold the Plaintiff strictly to time limits when the Defendant was permitted to file its Defence one week late and was not required to seek the consent of the Plaintiff or a court order to do so.
[15] Generally, the party who commences a proceeding is obliged to move it forward by taking appropriate steps under the Rules. The status review is a tool used by the Court to enforce that obligation. It is not relevant, in the context of a status review, that the defendant may have failed to take steps to bring the proceedings to a resolution: Baroud v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. D-29 (T.D.). I would add only this, that a delay of one week in filing the Defence, to which the Plaintiff raised no objection at the time, cannot excuse a delay of over three years on the part of the Plaintiff.
[16] The only substantive explanation the Plaintiff offers for the delay is his lack of resources due in part to his poverty and in part to a fire in October 1998. Yet once the notice of status review was brought to the Plaintiff's attention, resources were found to launch a coherent response in an effort to avoid the action being dismissed for delay. I do not accept that the Plaintiff's lack of resources prevented him from pursuing this claim.
[17] It was established in the Baroud case, referred to above, that in deciding whether a proceeding should be allowed to continue after the issuance of a notice of status review, the Court must consider two questions. The first question is whether the delay has been justified. In this regard, a mere declaration of intent and a desire to proceed are not enough. The second question is whether steps are being proposed to move the matter forward.
[18] In this case, the submissions of the Plaintiff do not justify the delay. For that reason, the Prothonotary was correct to dismiss this action.
[19] The Plaintiff has also alleged that the Prothonotary was biased against the Plaintiff and that his order breaches the Plaintiff's Charter rights and brings the administration of justice into disrepute. I find no merit in these allegations.
[20] The motion to reverse the Prothonotary's order is dismissed.
Karen R. Sharlow
Judge