Date: 19990707
Docket: T-1866-98
MONTRÉAL, QUEBEC, JULY 7, 1999
| Before: RICHARD MORNEAU, PROTHONOTARY |
Between:
MICHEL GAUTHIER,
Plaintiff,
AND
DIANE FORTIER, in her capacity as adjudicator,
Defendant,
AND
THE BANK OF CANADA,
Defendant.
ORDER
Pursuant to the Notice of Status Review dated May 10, 1999, it is ordered in accordance with Rule 382(2)(c) that this proceeding shall continue as a specially managed proceeding, and as a schedule for such a proceeding,
| (a) the plaintiff shall serve and file his Rule 309 record on or before July 27, 1999; |
| (b) the defendant shall serve and file her Rule 310 record on or before August 16, 1999; |
| (c) the plaintiff shall serve and file a requisition for hearing pursuant to Rule 314 on or before August 26, 1999. |
| Richard Morneau Prothonotary |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990707
Docket: T-1866-98
Between:
MICHEL GAUTHIER,
Plaintiff,
AND
DIANE FORTIER, in her capacity as adjudicator,
Defendant,
AND
THE BANK OF CANADA,
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] On May 10, 1999 the plaintiff received a Status Review Notice ("the Notice") from this Court. By that Notice the plaintiff was required to present reasons why his application should not be dismissed for delay in accordance with Rules 381 and 382(2)(a) of the Federal Court Rules (1998) ("the Rules").
[2] The issuing of the Notice of Application in the case at bar dates back to September 25, 1998. The notice was accordingly issued since pursuant to Rule 380(1)(b):
| 380. (1) Subject to subsection (3), where |
| ( a) in an action, |
| (i) 180 days have elapsed since the issuance of the statement of claim and pleadings are not closed, or |
| (ii) 360 days have elapsed since the issuance of the statement of claim and no party has filed a requisition for a pre-trial conference under rule 258, or |
| ( b) in an application or appeal, 180 days have elapsed since the issuance of the notice of application or appeal and no requisition for a hearing date has been filed, |
| the Court shall fix a time and date for a status review. |
[3] Within the deadline specified for responding to the Notice, counsel for the plaintiff made written submissions in favour of continuing their client's application. In return the defendant made also written submissions strongly urging that the Court dismiss the application filed by the plaintiff in September 1998.
[4] The Court must therefore decide whether the plaintiff's application should be dismissed for delay.
Background
[5] The facts out of which the case at bar arose are the following. On January 9, 1996 the defendant, the Bank of Canada, informed the plaintiff Michel Gauthier that it was terminating his employment for incompetence.
[6] On February 22, 1996 the plaintiff challenged this employment termination by making a complaint pursuant to s. 240 of the Canada Labour Code.
[7] After over 11 days of hearing Diane Fortier, appointed to act as adjudicator, on August 19, 1998 dismissed the plaintiff's complaint and concluded that the defendant was justified in terminating the plaintiff's employment.
[8] On September 25, 1998 the plaintiff filed his [TRANSLATION] "Notice of Application for Judicial Review" pursuant to Rule 301 and the defendant was served with the Notice the same day.
[9] On October 2, 1998 counsel for the defendant appeared in this matter pursuant to Rule 305.
[10] On October 22, 1998 the plaintiff filed and served his affidavit and the only
documentation he intended to use in support of his application, namely the decision of the adjudicator Diane Fortier, in accordance with Rule 306 and in compliance with the thirty-day deadline specified in that rule.
[11] As the defendant considered that the record was complete she did not make use of Rule 307 and therefore did not file or serve any other affidavit or documentation.
[12] Similarly, the defendant did not make use of Rule 308 and did not cross-examine the plaintiff Michel Gauthier.
[13] The plaintiff subsequently did not file his Rule 309 record.
[14] As the plaintiff had failed to observe the Rules the Court on May 10, 1999 sent the plaintiff the Notice.
[15] The gist of the explanation provided by counsel for the plaintiff to justify their delay is contained in the following passage from the plaintiff's submissions:
| [TRANSLATION] |
| The Notice of Application in this matter was in fact issued and served on the defendants on September 25, 1998. It was then filed in the Registry of the Federal Court on September 30, 1998. The undersigned counsel subsequently received service of the Bank of Canada's appearance by fax on October 2, 1998. Subsequently, on October 23, 1998, counsel for the plaintiff served the latter's affidavit on the defendants, and to this affidavit was attached a copy of the plaintiff's Exhibit P-1, namely the decision rendered by the defendant Diane Fortier on August 19, 1998. The said affidavit and exhibit were subsequent filed in the Registry of the Federal Court on the same day. |
| Having taken these steps, counsel for the plaintiff believed that their record was complete and expected to receive a hearing notice from the Court Registry at the proper time. Although they frequently appear in the ordinary courts of law such as the Court of Quebec and the Superior Court, the undersigned have never had occasion to plead in the Federal Court, except once in 1995. |
| The undersigned counsel therefore made the error of assuming that after service of the Notice of Application (ss. 301 to 304), receipt of the defendant's appearance (s. 305) and service of the plaintiff's affidavits and exhibits (s. 306), they should then await service of the defendant's affidavits and exhibits. Clearly, the thirty-day deadline given to the defendant in s. 307 for doing this was greatly exceeded and we were intending to review all the Federal Court Rules and the case law in order to take the necessary steps to compel the defendant to do this. Unfortunately, the attention of the undersigned was diverted to a number of other cases and we postponed, undoubtedly for much too long, the resolution of this matter. |
| We therefore find ourselves obliged to crave the Court's indulgence in considering these explanations favourably and allowing the plaintiff to serve and file his record within 20 days of the Court's decision to that effect, as provided in s. 309 of the Federal Court Rules, and thereafter, within ten days of receipt of the defendant's record or within ten days of expiry of the deadline for service of that record, to serve and file a requisition for hearing in accordance with the provisions of s. 314 of the said Rules. |
[16] Although, as the defendant noted, there is some contradiction between the fact that counsel for the plaintiff were awaiting a hearing notice from this Court and waiting for the defendant's affidavit, it appears to the Court that it is this latter stage, namely the process of Rule 307 as it bears on completion of an application, which created confusion for counsel for the plaintiff acting in all good faith.
[17] I think that in most applications it can reasonably be expected that a defendant will file one or more affidavits or cross-examine the other party's deponent. A cursory reading of the wording of Rule 307 leads to this conclusion, namely that a defendant will serve and file one or more affidavits. It is only by reading Rule 308 that this stage clearly becomes a possibility, consistent in this respect with the rule of law that a defendant may choose not to file evidence in addition to that presented by the plaintiff. Rules 307 and 308 read as follows:
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[18] It is understandable that for the purposes of the application at bar counsel for the plaintiff, believing that the defendant's affidavits were still to come and admittedly without experience in this Court, thought that the ball was in the other court and that any further action to be taken by the plaintiff was as it were suspended until receipt of the said affidavits. As they believed that the defendant was in default and they could force her hand in the filing of her affidavits, counsel for the plaintiff did not think there was any need to act promptly in this regard. As we know, the notice was issued before they took action.
[19] Additionally, the defendant objected that the plaintiff had not tried to determine whether she in fact intended to file one or more affidavits. It is true that this was an option open to the plaintiff. However, it may be noted obiter that the defendant could just as easily have informed the plaintiff that she did not intend to file an affidavit. She could by this means have limited the time for which the plaintiff was in default.
[20] In any event, therefore, it appears to the Court that the misunderstanding by counsel for the plaintiff is a valid explanation of the plaintiff's inaction or delay in the matter. This misunderstanding must be taken into account in the case at bar despite the fact that the plaintiff's application was brought after the Rules came into effect.
[21] Further, it appears to the Court that the plaintiff's proposal regarding future action to be taken and the deadlines for doing so are not unreasonable. Accordingly, in the Court's opinion the requirements of Baroud v. Canada, [1998] F.C.J. No. 1729, are met here.
[22] An order will accordingly be issued stating that pursuant to the Status Review Notice of May 10, 1999, it is ordered in accordance with Rule 382(2)(c) that this proceeding shall continue as a specially managed proceeding, and as a schedule for such a proceeding,
| (a) the plaintiff shall serve and file his rule 309 record on or before July 27, 1999; |
| (b) the defendant shall serve and file her rule 310 record on or before August 16, 1999; |
| (c) the plaintiff shall serve and file a requisition for hearing pursuant to Rule 314 on or before August 26, 1999. |
| Richard Morneau Prothonotary |
MONTRÉAL, QUEBEC
July 7, 1999
Certified true translation
Bernard Olivier, LL. B.
| Federal Court of Canada Trial Division Date: 19990707 Docket: T-1866-98 Between: MICHEL GAUTHIER, Plaintiff, AND DIANE FORTIER, in her capacity as adjudicator, Defendant, AND THE BANK OF CANADA, Defendant. REASONS FOR ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: T-1866-98
STYLE OF CAUSE: MICHEL GAUTHIER,
Plaintiff,
AND
| DIANE FORTIER, in her capacity as adjudicator, |
Defendant,
AND
THE BANK OF CANADA,
Defendant.
STATUS REVIEW HEARD AT MONTREAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: July 7, 1999
WRITTEN SUBMISSION BY:
Rhéal E. Fortin for the plaintiff
Manon Savard for the defendant the Bank of Canada
SOLICITORS OF RECORD:
Bissonnette et Fortin for the plaintiff
Rhéal E. Fortin
Saint-Jérôme, Quebec
Ogilvy, Renault for the defendant the Bank of Canada
Manon Savard
Montréal, Quebec