Date: 20011115
Docket: T-472-00
Neutral citation: 2001 FCT 1261
BETWEEN:
CHAITANYA K. KALEVAR
Applicant
- and -
LIBERAL PARTY OF CANADA and
MR. JAGDISH BHADURIA
Respondents
INTRODUCTION
[1] The applicant, who is self-represented, appeals the June 7, 2001 order of Associate Senior Prothonotary Giles dismissing his judicial review application for delay under Rule 382 of the Federal Court Rules, 1998, (the "Rules") consequent upon the issuance of a notice of status review which identified 180 days had elapsed since the filing of his notice of application and no requisition for a hearing date had been filed.
[2] The applicant's underlying judicial review application dated March 8, 2000, is against the February 1, 2000 decision of the Canadian Human Rights Commission (the "Commission") which decided not to deal with the applicant's complaint because the subject matter of that complaint was, in its view, beyond its jurisdiction.
[3] The applicant had complained to the Commission in May 1997, the Liberal Party of Canada (the "respondent") had discriminated against him essentially on grounds of race and religion when it failed to disqualify a candidate for the 1997 elections.
BACKGROUND
[4] This judicial review application has progressed with great difficulty as the applicant is a lay litigant; the record reveals many motions and another appeal to this Court from a previous decision of the Associate Senior Prothonotary.
[5] The most recent procedural events flow from an order made by Justice Hansen directing the applicant to file his application record within a certain time which he complied with by filing on September 4, 2000.
[6] He was away from Canada from December 13, 2000 to March 27, 2001 due to family responsibilities brought about by the death of his two elder brothers, a fact he mentioned to the respondent and to the Court before leaving. In particular, he sent a letter dated December 7, 2000, to the solicitors to the respondent headed "Consent for April Hearing". That letter thanked the solicitors for the respondent for reminding him of Rule 314.
[7] During the time he was away, and the applicant had notice of this, the respondent moved on Monday, January 29, 2001, to successfully strike portions of his application record. To the credit of counsel for the respondent, he had e-mailed this motion to strike to the applicant in India.
[8] The respondent filed its supplementary motion record on February 5, 2001. According to Rule 314, the applicant was required to serve and file a requisition for hearing ten (10) days thereafter.
[9] As noted the applicant was out of the country and returned only on March 27, 2001 but on February 12, 2001 he communicated with the Registry of the Court to await his return before making any substantial decisions.
[10] The notice of status review was issued on April 23, 2001 and the applicant received it a few days later.
[11] In his written submissions in response to the notice of status review, the applicant states (1) he was out of the country until March 27, 2001 and so advised the Court and (2) he had an accident on May 4, 2001 when he fell off his bicycle and his sutures were removed on May 14, 2001. As noted, on June 7, 2001, the Associate Senior Prothonotary dismissed the applicant's judicial review application for delay.
[12] Subsection 51(1) of the Rules provides that an order from a Prothonotary may be appealed by motion served within ten (10) days after the making of the order being challenged.
[13] The applicant appealed only on July 17, 2001. He admits receiving a copy of the order on Monday, June 11, 2001. He was over a month late.
[14] During that period, he was in Los Angeles, leaving Canada on June 20, 2001 and returning on July 4, 2001.
[15] He justifies the delay in appealing the Associate Senior Prothonotary's order by saying he was procedurally confused as to which Court to appeal to as well as his absence from Canada. The applicant did not spell out in his affidavit what he meant by being procedurally confused but one of his grounds in support of an extension of time identified the confusion as arising from his being informed (he says by the Federal Court Registry) that his appeal route was to the Federal Court of Appeal because the order was a final order and not an interlocutory one.
THE ASSOCIATE SENIOR PROTHONOTARY'S DECISION
[16] The gist of the Associate Senior Prothonotary's June 7, 2001 decision reads:
On the 5th of February, the respondent, pursuant to an order of the Court filed a supplementary record. The time for requisitioning a hearing would presumably have been some 10 days after that. That 10 days and five weeks more, the applicant was out of the country and arranged for no one in Canada to deal with the matter. For five weeks thereafter, when the applicant was in the country, he did nothing, not even updating himself on the state of the file. [emphasis mine]
[17] What influenced the Senior Prothonotary to conclude when the applicant was in the country, he did nothing, not even updating himself on the file, arises from the applicant's written submissions to him on status review. In those submissions, the applicant:
(a) requested an extra month "after your decision to file a requisition for hearing so as to assess what had been struck out in my absence and if the CHRC file is complete";
(b) he sought leave to file additional affidavits if too much had been struck out in his absence or if the CHRC file was not complete.
THE APPLICABLE PRINCIPLES
[18] According to Canada v. Aqua Gem Investments Ltd., [1993] 2 F.C. 425, I am to exercise the discretion vested in me de novo because the Associate Senior Prothonotary's decision was vital to the outcome of the case.
[19] In terms of what the applicant must show in order to obtain an extension of time, the Federal Court of Appeal's decision in Bellefeuille v. Canadian Human Rights Commission (1994), 172 N.R. 401, sets the following principles by asking whether there was (1) a continuing intention to pursue the appeal; (2) some merit in the appeal; (3) no material prejudice to the other party; and (4) a reasonable explanation for the delay (see also Rosen v. R., [2000] 2 C.T.C. 422 (F.C.A.) and Canada (Attorney General) v. Hennelly, [1999] F.C.J. 846 (F.C.A.).
[20] Baroud v. Canada, 160 F.T.R. 91, a case involving a self-represented litigant decided by Justice Hugessen sets out the approach when exercising the discretion conferred under Rule 382 in dismissing a proceeding for delay on status review. Justice Hugessen wrote:
[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 interrelated 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. Likewise, the fact that the defendant may have been lax and may not have fulfilled all of his procedural obligations is largely irrelevant; primary responsibility for the carriage of a case normally rests with a plaintiff and at a status review the Court will look to him for explanations.
[21] Baroud, supra, was recently endorsed by the Federal Court of Appeal in Ferrostaal Metals Ltd. et al. v. Evdomon Corp. et al., [2001] F.C.A. 297.
[22] I cite another principle because throughout his argument, the applicant repeatedly mentioned he was a Canadian citizen and he had the right to access to justice and, as a lay litigant in a public interest case, the Court should show him some latitude.
[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.
APPLICATION TO THIS CASE
[25] The applicant is obliged to provide the Court with some justification for being over a month late in appealing the Associate Senior Prothonotary's order dismissing his judicial review application on grounds of undue delay. In order to do so, the applicant must meet all elements of the four part test set out by the Federal Court of Appeal in Bellefeuille, Rosen and Hennelly, supra. The applicant has failed to satisfy me on two of the four elements of the test.
[26] First, he has not adequately explained the delay in appealing the Associate Senior Prothonotary's order that he admits receiving a copy of on Monday June 11, 2001. He was absent from Canada from June 20, 2001 until July 4, 2001, yet did not take any steps to appeal either before leaving or until July 17 after returning. He blames the Registry for being procedurally confused.
[27] In my opinion, his allegations are unsubstantiated as evidenced by the lack in the record of any concrete steps to perfect his appeal.
[28] Second, the applicant has not persuaded me his appeal has some merit. He says the Associate Senior Prothonotary erred in not taking into account his bicycle accident on May 4, 2001. I am satisfied the Associate Senior Prothonotary took that factor into account. What concerned him was the five weeks of inactivity by the applicant after his return from India and before his bicycle accident.
[29] The applicant, in his status review submissions, did not undertake the filing of a notice of requisition for hearing but rather requested further unspecified delays. In my view, on this aspect of the matter, the applicant fails on both prongs of the Baroud test.
[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.
DISPOSITION
[31] For all of these reasons, time to appeal is refused and appeal is dismissed.
J U D G E
OTTAWA, ONTARIO
NOVEMBER 15, 2001