Date: 20000223
Docket: T-290-99
BETWEEN:
EDWIN PEARSON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
O"KEEFE J.
Background and Summary
[1] The Plaintiff Edwin Pearson (hereinafter the "Plaintiff") has brought the following motion pursuant to Rule 8 of the Federal Court Rules, 1998, for:
| An ORDER abridging the delays fixed by an Order dated December 20, 1999, specifically paragraphs 7 and 8 thereof. |
[2] The Plaintiff filed an action against Her Majesty the Queen (hereinafter the "Defendant") on February 24, 1999.
[3] By Notice of Motion date March 29, 1999 the Defendant applied to the Court for the following relief:
| (a) an Order striking out the Statement of Claim and dismissing the action; |
| (b) in the alternative, an Order staying the action; |
| (c) in the further alternative, an extension of time within which to file a Statement of Defence; |
| (d) the transfer of this proceeding to the Province of Quebec; |
| (e) costs of this motion on a solicitor-client basis; and |
| (f) such further and other relief as to this Honourable Court may seem just. |
[4] The motion was heard at Toronto, Ontario on April 12, 1999 before Associate Senior Prothonotary Peter A.K. Giles, Esquire who ordered:
| IT IS HEREBY ORDERED THAT: having concluded that this action would not collaterally attack the Quebec decisions if it merely seeks damages on the basis of the facts decided in them. And having noted that this [sic] facts have yet been finally decided by the Quebec coasts. And without deciding whether an action for compensation under Section 24 of the Charger [sic] should be brought in this Court of the Court of Quebec and without deciding whether this action seeks to recover vicariously for the alleged wrongful actions of the Mounted Police or seeks relief under Section 24. This Action was stayed until such time as the Quebec proceedings are finally terminated. |
[5] The Plaintiff appealed the decision of the Prothonotary to the Federal Court Trial Division and by decision dated August 16, 1999 Richard A.C.J. (as he then was) dismissed the appeal.
[6] By Notice of Motion dated November 22, 1999 the Plaintiff requested the following:
| a) an Order lifting the stay proceedings ordered by Mr. A.K. Giles, Associate Senior Prothonotary ordered pursuant to s., [sic] 50 of the Federal Court Act 1998 staying the action until such time as criminal appeal proceedings ongoing in the Province of Quebec were resolved |
| b) an Order lifting and rescinding paragraphs 35 through 36 of the Reasons For Order issued on August 16 1999, at Ottawa, Ontario, by The Honorable Associate Chief Justice, of The Federal Court of Canada Trial Division, which dismissed Plaintiff"s appeal made pursuant to Rule 51 of the Federal Court Rules, the Order of Mr. A.K. Giles, Associate Senior Prothonotary, "In view of the considerable overlap between the issue in this action and the criminal proceeding, an issue which may be resolved in the criminal proceeding *****" (emphasis added by plaintiff) |
| c) an ORDER setting a date for the trial of this action |
| d) such further and other relief as justice requires and this Honorable Court may deem just. |
[7] That motion was heard by Prothonotary Roger R. Lafrenière who gave an order dated November 29, 1999. The Prothonotary ordered:
| 1. The motion is dismissed, without prejudice to the Plaintiff"s right to bring another motion upon final determination of his leave application and/or appeal to the Supreme Court of Canada, or the expiration of the time for so doing, whichever date is the latest. |
[8] The Plaintiff appealed the order of the Prothonotary dated November 29, 1999 which dismissed the Plaintiff"s application to remove the stay.
[9] The appeal of the Prothonotary"s order was heard before a judge of the Trial Division of this Court and on December 20, 1999 the Court ordered in its Reasons for Order and Order as follows:
| [6] In that there are now no proceedings upon which the stay had been granted, pursuant to s. 53(3) of the Federal Court Act, it is hereby ordered that any stay previously ordered is lifted. |
| [7] The Defendant shall serve and file its defence within a delay of 45 days of today"s date. |
| [8] This is without prejudice to the Defendant to re-present a motion to strike Plaintiff"s Statement of Claim upon 10 days" notice. |
[10] The Plaintiff stated that the following points are in issue in the motion dated January 14, 2000 which is currently before this Court:
| (a) Having, on the only motion before him, granted the Order sought therein by the Plaintiff, was the Honourable Judge thereafter functus? If not: |
| (b) Did Rule 8, of the Rules of The Federal Court of Canada, in conjunction with Rule 47 (2) and 358 through and including 369 preclude by law the granting of any type (paragraph 7) of extension or delay other than the delay granted to the defence by Federal Court of Canada Rule 204 (a)? |
| (c) Whether paragraph 8 of the Order of December 20 1999, constitute a valid and correct expression of substantive procedural law? |
| (d) Whether paragraphs 7, and 8, should be considered mere obiter dicta and of no force an [sic] effect? |
[11] The Plaintiff requests the following Relief:
| (a) An Order abridging the extended time to accord with the statutory prescribed time mandated by Rule 204(a) of the Rules of the Federal Court of Canada. |
| (b) Such further and other relief as justice requires and this Honorable Court deems just. |
[12] At the hearing of this motion the Plaintiff put forward argument that his motion should be granted and the abridgement of delays granted by the Court on December 20, 1999 to accord with the statutory prescribed time mandated by Rule 204(a) of the Rules of Court. The Plaintiff also presented argument on the other aspects of the motion.
[13] The Defendant"s position in argument was that the Plaintiff was in effect appealing the order of the Trial Judge.
Analysis and Decision
[14] Rule 8(1) of the Federal Court Rules, 1998, states:
| 8. (1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
|
8. (1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.
|
| [15] Rule 8(1) would appear to give me the authority to abridge terms set by an order to file a statement of defence or to present a motion to strike a statement of claim. However, a party asking a court to expedite matters (i.e. abridgement of the times for taking certain steps) should show some sense of urgency or other reasons justifying such an order (See Prince Edward Island (Potato Bd) v. Canada (Minister of Agriculture)1). In the present motion a review of the material filed and referred to does not show such reasons or urgency. |
| [16] On this basis, I would not grant an order abridging the times set by paragraphs 7 and 8 of the Trial Judge"s Reasons for Order and Order. |
| [17] The Trial Division of this Court does not have the jurisdiction to hear and determine issues (a), (c) and (d) as outlined in paragraph 10 of the reasons for judgment of this motion as these issues are the proper subject matter of an appeal. |
| [18] Costs shall be costs in the cause. |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: EDWIN PEARSON |
- and -
| DATE OF HEARING: MONDAY, JANUARY 31, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: O"KEEFE J. |
DATED: WEDNESDAY, FEBRUARY 23, 2000
| APPEARANCES: Mr. Edwin Pearson |
| SOLICITORS OF RECORD: Edwin Pearson |
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20000223
Docket: T-290-99
Between:
Plaintiff
- and -
Defendant
__________________
1 (1992) 56 F.T.R. 150 (F.C.T.D.).