Date: 20060728
Citation: 2006 FC 936
Vancouver, British Columbia, July 28, 2006
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
VACLAV SROUB
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] In accordance with Rule 309 of the Federal Courts Rules (Rules), the Applicant's Record was due to be filed by August 5, 2005. This date passed without any word from, or action by, the Applicant. On December 5, 2005, the Chief Justice issued a Notice of Status Review requiring the Applicant to show cause why the application should not be dismissed for delay.
[2] In his written submissions filed in response to the Notice of Status Review, the Applicant apologized for his poor English and explained that he did not understand the procedure. On the basis of the Applicant’s submissions, the application was allowed to continue as a specially managed proceeding by Prothonotary Roza Aronovitch. In her Order dated March 14, 2006, Prothonotary Aronovitch fixed a schedule for completion of the remaining steps in the proceeding, including a deadline of May 26, 2006 for the service and filing of the Applicant’s Record.
[3] The Applicant submitted a document by mail to the Registry on May 10, 2006, in purported compliance with the Order of Prothonotary Aronovitch. The document was rejected for filing, however, on the grounds that it was not in the form required by the Rules. On May 18, 2006, Prothonotary Lafrenière directed the Applicant to resubmit the Applicant’s Record in proper form by May 26, 2006.
[4] By early July 2006, there was no record of any document being tendered to the Registry or any further communication from the Applicant since the issuance of the Directions of Prothonotary Lafrenière dated May 18, 2006. As a result, Prothonotary Lafrenière issued an Order on July 12, 2006, pursuant to Rule 385(2) of the Rules, requiring the Applicant to show cause by written representations, to be served and filed no later than July 28, 2006, why the application should not be dismissed without further notice, on the grounds that the Applicant was in breach of the Order of Prothonotary Aronovitch dated March 14, 2006 and the Directions of Prothonotary Lafrenière dated May 18, 2006.
[5] By letter faxed on July 14, 2006, the Applicant once again apologizes for his poor English and his lack of familiarity of court procedure. He further indicates that he does not understand why this Court cannot pass judgment on his argument based on the Geneva Convention and an affidavit attached to his submissions.
[6] The Federal Court adopted a case flow management system in 1998 as part of a major revision to its rules of procedure. The objective was to ensure that matters proceed as expeditiously as possible, thereby avoiding situations where litigation continues for years without resolution.
[7] The Applicant has been on notice since the issuance of the first show cause order issued on December 5, 2005 that he was in default of the Rules. The Court has also provided directions to assist the Applicant in moving the proceeding forward, recognizing that individuals representing themselves may lack knowledge about court procedures and may not understand the law and legal terminology. While accepting that the Applicant has some language difficulties, it remains that the Applicant, who is representing himself, is ultimately responsible for moving the proceeding forward and, more particularly, to comply with orders and directions of this Court. As pointed out by Justice Hugessen in Scheuneman v. HMQ (2003), 120 A.C.W.S. (3d) 48 (T.D.), 2003 FCT 37: “[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”.
[8] The requirement to file an Applicant's Record, as set out in Rule 309 of the Rules, is intended to ensure that an applicant develops and places before the Court the arguments he intends to present in support of his application. Both the March 14, 2006 Order and the May 18, 2006 directions are succinct, unambiguous, and written in clear language. Even if the Applicant was unsure of their meaning, he could have sought clarification or an explanation of what was required of him. There is no indication that the Applicant availed himself of this option.
[9] In Kalevar v. Liberal Party of Canada (2001), 110 A.C.W.S. (3d) 236, 2001 FCT 1261, Justice Lemieux was dealing with a self-represented litigant who failed to file an appeal of a prothonotary’s decision in a timely manner and who was attempting to excuse his delay by claiming that he was procedurally confused. Justice Lemieux, in dismissing an application for extension of time to appeal and the appeal itself, said:
23. I agree with what Justice Dubé said in Gilling v. Canada, [1998] F.C.J. No. 952 (June 30, 1998). In that case, Justice Dubé was dealing with a lay litigant and he stated:
Although the Court is always careful to ensure that other parties do not take advantage of a person representing himself or herself, the individual representing himself must follow the rules and is not allowed to play the rules so as to prejudice the other parties. [emphasis mine]
24. Put in other words, Justice Dubé decided, and I agree with him, the Federal Court Rules apply equally to cases where a lay litigant is present or in one where legal counsel has been retained; the Federal Court Rules do not vary because a lay litigant chooses to prosecute his or her claim.
…
30. I conclude by saying that yes the applicant has the right of access to justice but he must do so within the Rules which are applicable to all; as a lay litigant, he does not have any additional rights or privileges not accruing to others who may have retained legal counsel.
[10] The Kalevar matter was appealed to the Federal Court of Appeal: see (2002), 115 A.C.W.S. (3d) 358, 2002 FCA 246, leave to appeal to Supreme Court of Canada dismissed, [2002] S.C.C.A. No. 433. In granting the motion of the Liberal Party of Canada for dismissal of Kalevar’s appeal, Justice Evans commented as follows:
12. … the Court recognises and, where appropriate, is responsive to the difficulties facing litigants who are representing themselves in proceedings before the Court. Nonetheless, as Lemieux J. pointed out, the rules apply to all litigants. Those who persistently fail to comply with them do so at their peril.
[11] The Applicant has shown no willingness or ability to perfect his record within a reasonable period of time. Taking into account the history of inaction on the part of the Applicant over the past year and his repeated failure to comply with a clear order and subsequent directions of this Court, I conclude that this application should be dismissed.
ORDER
THIS COURT ORDERS that this application is dismissed for delay.
“Roger R. Lafrenière”
Prothonotary
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Vaclav Sroub v. Attorney General of Canada
WRITTEN REPRESENTATIONS BY:
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Vaclav Sroub
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Bahaa I. Sunallah
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SOLICITORS OF RECORD:
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Vaclav Sroub
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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FOR THE RESPONDENT
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