Date: 19980708
Docket: T-56-98
BETWEEN:
INMATES OF MOUNTAIN PRISON
AS REPRESENTED BY
NEALE BURTON AND MELVIN GOVEREAU,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN,
Defendant.
ORDER AND REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
ORDER
The Plaintiffs having failed to comply with the time requirements set out in the Order of 22 May 1998, this action is struck out.
REASONS
[1] This action, which is founded upon the dishwasher at Mountain Prison, which the inmates feel is inadequate and which they blame for the spread of disease, including hepatitis and HIV, is one of a dozen Federal Court proceedings commenced by Mr. Burton. It was begun 6 January 1998 by a statement of claim filed by the "Inmates of Mountain Prison" as "Applicants". The Court received an addendum to the statement of claim on 15 January 1998. The Inmates of Mountain Prison then applied for default judgment 31 March 1998: the affidavit of service being defective, the application was returned to Mr. Burton that same day.
[2] At about the same time the Department of Justice wrote to Mr. Burton suggesting that the Applicants discontinue their proceeding and re-issue it with a style of cause showing Mr. Burton and/or a Mr. Govereau, the inmates directing the proceeding, as plaintiffs in a representative capacity. Messrs. Burton and Govereau declined to do so. In the result the Department of Justice filed a defence 20 April 1998, on behalf of the Crown, together with a motion to have the proceeding struck out, the "Inmates of Mountain Prison" being an inappropriate entity to bring an action.
[3] When the motion for default judgment came before me I denied that relief, noting that a defence had been filed before the motion came to me for disposition. I allowed the Inmates of Mountain Prison a small lump sum, to go toward disbursements, payable forthwith.
As to the Crown's motion, I decline to strike out the proceeding providing, by Order of 22 May, that the Inmates of Mountain Prison might have thirty days within which to file an amended statement of claim with the style of cause indicating that the Inmates of Mountain Prison were represented by one or more named persons, to be styled not as applicants, but as plaintiffs, with the stipulation that "In the event no amended statement of claim is filed within thirty days the action is deemed struck out; ...".
[4] The Order of 22 May was peremptory in nature. Peremptory or "unless" orders are generally only made when a party has already failed to comply with a requirement, rule or order and the court is satisfied that the time already allowed is sufficient in the circumstances: see for example Caribbean General Insurance Ltd. v. Frizzell Insurance Brokers Ltd. [1994] 2 Lloyd's 32 at 39 - 40, a decision of the Court of Appeal, which went on to note that "peremptory orders are made to be obeyed". I felt that the situation required a peremptory order, for in the meantime Mr. Burton had been producing documents of all description, in this action (including an abortive motion for an interlocutory injunction to prevent the Institution from destroying relevant documents), in various other actions and some material for which it was difficult to find a home: indeed a virtual inundation of paperwork. It was time to put the present action on a proper footing and to focus Mr. Burton's attention on that objective.
[5] As I say my Order of 22 May allowed the Plaintiffs thirty days within which to amend their statement of claim to show that a named plaintiff or plaintiffs acted in a representative capacity. The time allowed ended on a Sunday and thus the Plaintiffs had until Monday, 22 June, within which to file their amended statement of claim failing which it would be deemed struck out.
[6] The Court received an amended statement of claim a week late, 29 June. That statement of claim was dated 15 June, however from the material which was enclosed with it the Plaintiffs appear to have sat on their amended statement of claim while they prepared a motion for leave to further amend the statement of claim as to the relief sought, that motion and material being dated 25 June.
[7] Orders as to time are meant to be complied with. All the more so in the case of a peremptory order brought about by reason of the haphazard manner in which the Plaintiffs sought to conduct their proceeding, to the general confusion of the court and perhaps also to the confusion of the Department of Justice, acting for the Defendant in this action and in eleven other actions.
[8] The Court may make an order on its own initiative. Given the peremptory nature of the 22 May 1998, order such may not be strictly necessary in this instance. However Mr. Burton, in his various proceedings, has tended, from time to time, to overlook directions and orders. Thus the present order confirming the action is struck out. This result does of course not deny the Inmates of Mountain Prison the process of the Court in a future action seeking similar relief. However such an action must not only follow the Rules of the Court but also be conducted in an attentive, timely and workmanlike fashion.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
8 July 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-56-98
STYLE OF CAUSE: Inmates of Mountain Prison and others
v.
Her Majesty the Queen
PLACE OF HEARING: Vancouver, BC
ORDER AND REASONS FOR ORDER OF MR. JOHN HARGRAVE, PROTHONOTARY
dated July 8, 1998
SOLICITORS OF RECORD:
| Mr. Melvin Govereau Acting on Their Own Behalf |
| Mr. Neale Burton |
| Mr. Morris Rosenberg for Respondent HMQ |
Deputy Attorney General
of Canada