Date: 20041027
Docket: T-2445-03
Citation: 2004 FC 1515
Toronto, Ontario, October 27th, 2004
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
JOHN ZENON MISCHENA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant filed written submissions in response to a Notice of Status Review issued on August 31, 2004 pursuant to Rule 380 of the Federal Court Rules, 1998 (the Rules). The Notice required the Applicant to show cause why the application should not be dismissed for delay. A status review was conducted based on the Applicant's submissions, as well as the Respondent's responding submissions dated October 12, 2004.
[2] By way of background, on December 22, 2003, the Applicant filed a Notice of Application to judicially review, amongst others, a decision made by Mr. John Jackson dated November 20, 2003, which denied the Applicant's request to re-open statute-barred taxation years (the "fairness decision"). A certified copy of the material before the decision-maker was filed with the Court on January 27, 2004. Two weeks later, the Applicant served and filed his affidavit evidence in support of the application.
[3] The Respondent subsequently moved to strike certain portions of the Notice of Application on the grounds that the application for judicial review was not limited to a single decision. The motion was granted by Order dated April 19, 2004, which also provided that the Respondent serve and file the Respondent's affidavit evidence by May 4, 2004. Following delivery of the Respondent's supporting affidavit, the Applicant elected to conduct a written cross-examination of the Respondent's affiant. An affidavit containing responses to the questions posed by the Applicant was served on June 9, 2004. Based on Rule 309 of the Rules, the Applicant's Record therefore was due by June 29, 2004. The Applicant admittedly took no further steps to perfect his application until the Notice of Status Review was issued on August 31, 2004.
[4] In Baroud v. Canada (1998), 160 F.T.R. 91 (T.D.), Hugessen, J. identified the two questions which should concern the Court on status review. First, what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred? Second, what steps is the plaintiff now proposing to move the matter forward?
[5] The first matter to be considered is the Applicant's explanation for the two month delay between the date of expiration of the time for service and filing of the Applicant's Record (June 29, 2004) and the date of issuance of the Notice of Status Review (August 31, 2004). The Applicant's principal excuse is that he had difficulty drafting a memorandum of fact and law, due to the complexity of the legislation and his limited knowledge of the law. The fact that the Applicant lacks knowledge of procedure and substantive law is, however, of little relevance. As stated by Hugessen, J. in Scheuneman v. Her Majesty the Queen, 2003 FCT 37, January 16, 2003: "(t)he plaintiff's lack of legal training does not give him any additional rights and if he insists upon representing himself, he must play by the same rules as everyone else". Those "rules" include complying with the deadlines set out in Part 5 of the Rules.
[6] The Applicant also seeks to justify the delay on the grounds that he has been denied access to documents that could assist in establishing that the fairness decision was based on incorrect or incomplete information, and that his requests for production under the Privacy Act have been stalled for months. In my view, the problems experienced by the Applicant in ferreting out documents do not justify his inaction. Rules 317 and 318 provide a means for parties to obtain material in the possession of the decision-maker. It was incumbent therefore on the Applicant to move on a timely basis to seek such relief as may be appropriate from the Court. Yet, rather than invoking a deficiency in the certified record, the Applicant simply elected to file his affidavit evidence, and then proceeded to conduct a cross-examination of the Respondent's affiant.
[7] As for his proposal to move the proceeding forward, the Applicant is now requesting leave to bring a motion to amend the Notice of Application, to compel further answers from the Respondent's affiant, and to conduct further cross-examination. The Applicant has not established, however, that such relief should be considered within the context of a status review. The Applicant has proposed, in the alternative, to submit the Applicant's Record "within any reasonable time given his inexperience".
[8] Although the explanation provided by the Applicant for the delay is wanting, it remains that he has taken certain steps to move the proceeding forward, such as filing his affidavit evidence and conducting cross-examination. Taking into account the entire history of the proceeding, the period of delay of two months cannot be viewed as inordinate. Therefore, in light of the fact that the Applicant has proposed a concrete step to bring this proceeding back on track, I consider it just and appropriate to allow the application to continue.
ORDER
THIS COURT ORDERS that:
9. The application shall continue as a specially managed proceeding.
2. The Applicant shall, no later than November 26, 2004, serve and file the Applicant's Record.
3. All subsequent steps shall be taken with the time provided in Part 5 of the Federal Court Rules, 1998.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-2445-03
STYLE OF CAUSE: JOHN ZENON MISCHENA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
MATTER CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 380
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE, P.
DATED: OCTOBER 27, 2004
WRITTEN SUBMISSIONS BY:
John Zenon Mischena FOR THE APPLICANT (Self-represented)
Nancy Arnold FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Zenon Mischena
Toronto, Ontario FOR THE APPLICANT (Self-represented)
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20041027
Docket: T-2445-03
BETWEEN:
JOHN ZENON MISCHENA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER