T-245-86
Between:
SHIRLEY LARDEN,
Plaintiff/Appellant,
- and -
HER MAJESTY THE QUEEN, THE MINISTER OF INDIAN
AND NORTHERN AFFAIRS OF CANADA, MARVIN ANDREW
JOE, DAVID JAMES JOE, EDITH BAIRD, NORMA JACOBS,
LEILEAN KOLLER, BRIAN CARDINAL, RENE CARDINAL,
JEANNE CARDINAL, CINDY WATSON AND H. ERVIN,
Defendants,
- and -
THE MINISTER OF INDIAN AND NORTHERN
AFFAIRS OF CANADA AND H. ERVIN,
Respondents.
REASONS FOR ORDER
JOHN A. HARGRAVE
PROTHONOTARY
These reasons arise out of the application of the Plaintiff, who acts for herself, for an extension of time within which to appeal an Order of 10 March 1997, which Order was the product of a Rule 324 motion in writing. That Order dismissed the Plaintiff's claim, as against Her Majesty the Queen, the Minister of Indian and Northern Affairs of Canada and Harold Ervin, as vexatious and an abuse of process.
BACKGROUND
The Plaintiff brought this motion for an extension of time on 8 May 1997, 29 days after the 30-day time for appeal had run. As to the grounds for the motion, the Plaintiff notes that she "... is representing herself and had no knowledge that she had to file a notice of appeal within 30 days after the pronouncement of the judgment.". The Plaintiff's affidavit material indicates she received the Order which she wishes to appeal "... shortly after it was pronounced" and "... was at a loss as to what I should do.". She then deposes in her affidavit of 8 May 1997, that "After giving the matter some thought, I decided last week to try to appeal the Order ...". It was only then she discovered time had run. The Plaintiff concludes the substantive portion of the affidavit:
| 7. I honestly believe that I have a meritorious appeal and that I should be given an opportunity to present my case. |
The Plaintiff does not say what constitutes the meritorious case. Quite naturally, believing she has a good case, she does not want to be deprived of her day in Court.
ANALYSIS
Two points arise out of all of this: first, what concession or assistance the Court should give to a lay litigant; and second, whether the Plaintiff meets the applicable requirements in order to obtain an extension of time within which to appeal.
Lay Litigants
Time limits are provided in our rules in order to generate a sense of the need to litigate with proper diligence and dispatch, something lacking in this action, begun over ten years ago. Time requirements are not merely goals to be attempted, but rather they are rules to be observed, for litigants are entitled to have their actions resolved within a reasonable time and with certainty, without facing the prejudice and doubt that may result from a failure to comply with time limits. The absence of counsel does not in any way relieve a litigant of the duty to comply with our rules: St. Jaques v. Pike (1990) 29 F.T.R. 256 at 258. But there is also an overriding principle, that justice must be done.
In Susan De Korompay v. Ontario Hydro, an unreported 17 July 1990, decision in action T-377-88, Mr. Justice Muldoon pointed out that the Court has neither the time nor the right to give helpful hints to one party or to one side, for that would undermine the Court's role as an independent and even-handed adjudicator1. It would be even less acceptable to give preferential treatment to a litigant merely because he or she, by design or circumstances, chose to conduct their own litigation and has fallen into error. Yet the Court's rules ought not to be traps for the unwary lay litigant who makes a harmless innocent mistake:
| Rules of procedure are not intended as traps for the unwary or to victimize those who make innocent mistakes which cause no harm. The power of the court to relieve against default has for its purpose to allow parties to resolve the real issues between them on their merits and not on mere technical or procedural grounds. (Her Majesty the Queen v. North Grant Landscaping (1997), 206 N.R. 199 at 201 (F.C.A.). |
In the present instance the Plaintiff has run afoul of an appeal time limit. There are two observations I would make. First, a lay litigant has an obligation to know at least something of the Court's rules; and second, the test a litigant must satisfy, to obtain an extension of time within which to appeal, is as much one of common sense as it is one of law. The application of the test does not, in this instance, to paraphrase the Court of Appeal in the North Grant Landscaping case, victimize a party who has made an innocent mistake.
Time Extension for Appeal
The test to apply, in granting an extension of time within which to appeal, an extension which does justice between the parties, is flexible in the sense that the Court may consider a number of factors. That the test is open-ended is clear from Grewal v. MEI, [1985] 2 F.C. 263 in which the Federal Court of Appeal pointed out:
| "Among the matters to be taken into account in resolving the first of these questions is whether the applicant intended within the 10-day period to bring the application and had that intention continuously thereafter. Any abandonment of that intention, any laxity or failure of the applicant to pursue it as diligently as could reasonably be expected of him could but militate strongly against his case for an extension. The length of the period for which an extension is required and whether any and what prejudice to an opposing party will result from an extension being granted are also relevant. But, in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not fettered." (pages 277 - 278) |
Certainly, the Court of Appeal in Grewal looked primarily for a continuing intent to appeal, beginning during the currency of the time for appeal and at whether Mr. Grewal had an arguable case (ibid pp. 277 and 282), but the Court of Appeal also left it open for other courts to consider other relevant factors.
As an example of this open-ended approach referred to in Grewal, Madame Justice Simpson considered half a dozen different factors in Karon Resources Inc. v. MNR (1994), 71 F.T.R. 232. However, the basic factors are still justification of any delay throughout the whole period of the delay and demonstration that the person seeking the time extension has an arguable case. In the present instance, I would add a third factor arising from a comment made by the Supreme Court of Canada in Cité de Pont Viau v. Gautier Manufacturing Ltd., [1978] 2 S.C.R. 516 at 521, that a court would refuse special leave to appeal, even where a party explained a failure to act sooner, if the appeal were clearly futile or vexatious.
In the present instance, the Plaintiff clearly did not form an intention to appeal until sometime during the week of 28 April 1997, some 18 days after the time for appeal had run. This absence of any timely and continuing intention to appeal is perhaps not determinative, but it is certainly a factor to take into account.
As to an arguable case, the Plaintiff's affidavit evidence is merely that she believes she has "... a meritorious appeal and that I should be given an opportunity to present my case.".
The Plaintiff's case against Her Majesty the Queen, the Minister of Indian and Northern Affairs of Canada and Harold Ervin (Administrator of the estate of the Plaintiff's father) is that they failed to transfer certain property into her name. In dismissing the claim as against these three defendant's the Judge hearing the motion which the Plaintiff now wishes to appeal found, among other things, that the Plaintiff, and here I paraphrase:
| 1. Signed in agreement, with the heirs of the estates of her father and mother in July of 1990; |
| 2. That the agreement was a final disposition of the claims of all the heirs to the estates of the Plaintiff's parents; |
| 3. That the Plaintiff received land and money from the two estates, pursuant to the agreement; |
| 4. The Minister of Indian Affairs distributed the estate as agreed; and |
| 5. It is an abuse of process and vexatious for the Plaintiff to continue the action against Her Majesty the Queen, The Minister of Indian and Northern Affairs and Harold Ervin and thus the claim should be dismissed. |
The Plaintiff does not deal with any of these findings by the Motion Judge, who considered the claim to be ill founded, for he clearly says that it is both an abuse of process and vexatious. Thus, I am left with a claim which not only is not arguable, but which has also been shown to be an abuse of process and vexatious.
CONCLUSION
In conclusion, the Plaintiff has met neither of the basic and common sense requirements for an extension of time within which to appeal: the Plaintiff has shown neither a continuing intention to appeal, nor an arguable case. In addition, the case is one which the Motion Judge, in dismissing the action as against three of the Defendants, found to be an abuse of process and vexatious. The Plaintiff did not deal with this finding. There is no alternative but to deny the time extension.
(Sgd.) "John A. Hargrave"
Prothonotary
June 13, 1997
Vancouver, BC
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: SHIRLEY LARDEN
- and -
| HER MAJESTY THE QUEEN, THE MINISTER OF INDIAN AND NORTHERN AFFAIRS OF CANADA, MARVIN ANDREW JOE, DAVID JAMES JOE, EDITH BAIRD, NORMA JACOBS, LEILEAN KOLLER, BRIAN CARDINAL, RENE CARDINAL, JEANNE CARDINAL, CINDY WATSON AND H. ERVIN |
COURT NO.: T-245-86
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL
REASONS FOR ORDER OF Mr. John A. Hargrave, Prothonotary dated
June 13, 1997
WRITTEN SUBMISSIONS BY:
Shirley Larden for Plaintiff
Darlene Prosser for Defendant and Respondent
SOLICITORS OF RECORD:
Shirley Larden for Plaintiff
Ladner, BC
George Thomson for Defendant and Respondent
Deputy Attorney General of Canada
__________________
1 Of course there is nothing to prevent a lay litigant from seeking procedural advice from one of the Court's staff of competent registry officers. Such advice is freely given to all who request it.