Date: 20010130
Docket: A-474-00
CORAM: DESJARDINS J.A.
BETWEEN:
PAUL-ARTHUR GRENIER, personally
and in his capacity as tutor for his minor children,
MRS. PAUL-ARTHUR GRENIER, FRANCE GRENIER,
CHANTAL GRENIER, SONIA GRENIER,
SYLVAIN GRENIER and MARTIN GRENIER
Appellants
- AND -
HER MAJESTY THE QUEEN
Respondent
Hearing held at Québec, Quebec on Tuesday, January 30, 2001.
Judgment from the bench at Québec, Quebec on Tuesday, January 30, 2001.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20010130
Docket: A-474-00
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
PAUL-ARTHUR GRENIER, personally
and in his capacity as tutor for his minor children,
MRS. PAUL-ARTHUR GRENIER, FRANCE GRENIER,
CHANTAL GRENIER, SONIA GRENIER,
SYLVAIN GRENIER and MARTIN GRENIER
Appellants
- AND -
HER MAJESTY THE QUEEN
Respondent
(Delivered from the bench at Québec, Quebec
on Tuesday, January 30, 2001)
LÉTOURNEAU J.A.
[1] We consider that this appeal should be allowed.
[2] The actions for damages brought by the appellants were dismissed on January 25, 1999 by a judge of the Trial Division following a status review notice issued by the Court pursuant to Rule 380 of the Federal Court Rules (1998) ("the Rules"). The dismissal was ordered without any real reason given pursuant to s. 382(2)(a) of the Rules.
[3] In the circumstances, as no reasons were given and it is difficult to determine whether the motions judge exercised discretion judicially by correctly applying the test laid down in Baroud v. Canada (1998), 160 F.T.R. 91 (F.C.T.D.), this Court's function is to review the case before it, not to substitute its discretion for that of the lower Court, but to determine whether, first, it took into account all the factors relating to the decision, and second, whether it was influenced by irrelevant factors that it should not have taken into account.
[4] In Baroud Hugessen J.A. described as follows the questions which a judge conducting a status review should ask to decide how the action in question should be treated:
[4] In deciding in what manner to exercise the wide discretion granted to it by rule 382 at the conclusion of a status review, it seems to me that the court needs to be concerned primarily with two questions:
1) what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred?; and
2) what steps is the plaintiff now proposing to move the matter forward?
[5] The two questions are clearly inter-related in that if there is a good excuse for the case not having progressed more quickly, the court is not likely to be very exigent in requiring an action plan from the plaintiff. On the other hand, if no good reason is advanced to justify the delay, the plaintiff should be prepared to demonstrate that he recognizes that he has a responsibility to the court to move his action along. Mere declarations of good intent and of the desire to proceed are clearly not enough.
[5] The first question is largely answered by the fact that the proceedings brought by the appellants were stayed pending a judgment by the Quebec Court of Appeal in a case raising similar questions: Berthiaume v. Réno-Dépôt Inc., [1995] R.J.Q. 2796. Once the decision had been rendered, the appellants notified the respondent to file her defence, but this was not done. The appellants also encountered financial problems which led them to undertake to prosecute their action themselves, without the benefit of legal representation, which makes the small part of the delay attributable to them more understandable. In the Court's opinion the appellants, for what appeared to be a delay in proceeding, had a reasonable explanation which does not appear to have been taken into account by the motions judge.
[6] As to the second part of the test laid down in Baroud, namely the action plan proposed to move the case forward, the appellants asked for a pre-trial conference to be held. In the circumstances, this undoubtedly was not the best approach, but as they were still awaiting the respondent's defence it was the procedure which the appellants thought should be used after the status review notice of September 10, 1998, which noted that no application for a pre-trial conference had been made. In our view, in the particular circumstances of the case at bar this step was sufficient to satisfy the second part of the test.
[7] The respondent submitted that, in view of the Court of Appeal's judgment in Berthiaume,supra, it would be inappropriate and futile for the appellants to continue their proceedings. That may be so, but it is not for the Court to decide the merit of these proceedings in the course of a status review. If the respondent really believes that the appellants' proceedings disclose no reasonable cause of action, she may make use of the Rules of this Court that cover such a situation and that are more suited to determining that kind of question.
[8] For these reasons, the appeal will be allowed, the judgment of the motions judge on January 25, 1999 dismissing the appellants' action will be quashed and the case will proceed as a specially managed proceeding pursuant to Rule 382(2)(c). The appellants will be entitled to their disbursements at trial and on appeal.
|
Gilles Létourneau J.A. |
Québec, Quebec
January 30, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF APPEAL
Date: 20010130
Docket: A-474-00
Between:
PAUL-ARTHUR GRENIER, personally
and in his capacity as tutor for his minor children,
MRS. PAUL-ARTHUR GRENIER, FRANCE GRENIER, CHANTAL GRENIER, SONIA GRENIER,
SYLVAIN GRENIER and MARTIN GRENIER
Appellants
- AND -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: A-474-00
STYLE OF CAUSE: PAUL-ARTHUR GRENIER, personally
and in his capacity as tutor for his minor children,
MRS. PAUL-ARTHUR GRENIER,
FRANCE GRENIER, CHANTAL GRENIER, SONIA GRENIER, SYLVAIN GRENIER and MARTIN GRENIER
Appellants
- AND -
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: January 30, 2001
REASONS FOR JUDGMENT
OF THE COURT BY: Létourneau J.A.
DATED: January 30, 2001
APPEARANCES:
Paul-Arthur Grenier for the appellants
Nadia Hudon for the respondent
SOLICITORS OF RECORD:
2285 Ave. Royale for the appellants
Beauport, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada