Date: 20040716
Docket: T-762-03
Citation: 2004 FC 1003
BETWEEN:
AMANDA DAY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
[1] This matter, involving an application for the judicial review of a 4 April 2003 decision of the Canadian Human Rights Tribunal, in a sexual harassment matter, is brought by a self-represented Applicant. The proceeding is under case management. These reasons arise out of a motion by the Respondent for an interim status review founded on delay. The Applicant has not responded to the motion. The motion is granted.
Background
[2] Despite a history of attempts by counsel for the Respondent, the Attorney General of Canada, to move this proceeding along and to accommodate the Applicant, including offers of time extension, an offer by counsel for the individual who should be the Respondent in place of the Attorney General of Canada and active case management, this matter has not progressed. Indeed, in the five months following commencement of this application on 12 May 2003, until the case management order of Mr. Justice Rouleau, on 9 October, 2003 the Applicant did nothing to bring her proceeding on for hearing. Since then Applicant has neither named a proper respondent nor filed her application record. Throughout this time counsel for the Respondent has tried to move the proceeding toward a hearing but without success. Thus the present motion for an interim status review.
Consideration
[3] Rule 385(2) allows a case management judge or prothonotary to order what is, in effect, an interim status review, in accordance with Rule 382. On a Rule 382 status review the Court may, among other approaches, require a judicial review applicant to show cause why a proceeding should not be dismissed for delay: see Rule 382(2)(a). By Rule 380(2) such a status review is in writing, unless otherwise ordered.
[4] A status review during the case management process generally ought not to be necessary. Indeed to have to resort to an interim status review may be an indication that the case manager should put more effort into the case management process. However in this instance there are circumstances which justify an interim status review, including that the Applicant has not given proper attention to, or engagedv meaningfully, or in an open minded way, in either the Court's procedure, or the case management process: rather than do what is procedurally necessary to move the matter to a resolution the Applicant has become engrossed in the merits of the case from her own perspective. As a result the Applicant has been unable to move the matter through the required procedure in order to reach the stage of a hearing. Thus there has been further delay.
[5] The Respondent has been left with the options of, on the one hand, a motion to dismiss for delay, an uncertain approach for there may be no prejudice which cannot be compensated for in costs; and on the other hand, a motion for an interim status review, requiring the Applicant to justify the delay and to explain how she proposes to move the case forward.
[6] While the proper and diligent conduct of a proceeding is traditionally the obligation of the party initiating the litigation, the modern approach to the conduct of litigation is also grounded on Federal Court Rule 3:
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Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible. |
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This approach, new in the Federal Court Rules of 1998, illustrates the focus that the Federal Court must have, for in the view of Justice of Appeal Isaac "... the focus must be upon the 'just, more expeditious and least expensive' resolutions of disputes as Rule 3 commands.": Sebastien v. Saugeen First Nation No. 29 (2003) 300 N.R. 154 at 166.
[7] In the present instance counsel for the Respondent has done all that might be expected of her, in accommodating the Applicant, in trying to move the matter forward and in suggesting practical and inexpensive procedures to make the matter ready for trial, but to no avail.
[8] Neither the efforts of counsel for the Respondent, nor the efforts of counsel for the individual who should have been the Respondent, nor case management have been able to move the case forward to a hearing. The Respondent should not be imposed upon further by requiring a motion to strike out for delay. There will be an interim status review under Rule 385(2), which will be in writing.
[9] The Applicant may have until close of Registry on 9 August, 2004, within which to serve and file written representations focussing on two issues: first, do the reasons why this judicial review application has not moved forward justify the delay; and second, the measures that the Applicant proposes by which to move the proceeding forward. As Mr. Justice Hugessen said in Baroud v. Canada (Attorney General) (1998) 160 F.T.R. 91 at 92, these two questions are interrelated:
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. Likewise, the fact that the defendant may have been lax and may not have fulfilled all 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.
From the point of view of the Applicant, the submission must explain why the case has not moved forward faster, with a view to justifying the delay and set out what steps the Applicant proposes to take to move the matter toward a hearing. It is not an opportunity to dwell on what may have occurred in the past other than that, as the Federal Court of Appeal pointed out in Rosen v. Her Majesty the Queen [2000] 2 C.T.C. 422, to touch upon the intention to take proceedings within prescribed time limits, whether there is an arguable case, the length of the delay and any prejudice caused by the delay, which may have bearing. I would add that the representations of a plaintiff or applicant, in response to a status review order, should be more than mere bland assurances: they should be as definite, positive and concrete as possible: see Importations Alimentaires Stella Inc. v. National Cheese Co. (2000) 273 N.R. 392 (F.C.A.) at 393.
[10] While Rule 382(2)(a) is phrased in terms of requiring the plaintiff or applicant to show cause why a proceeding ought not to be dismissed for delay, there is nothing in the Rules which prevents a defendant or, in this case, a respondent, from making written representations: see Multibond Inc. v. Duracoat Powder Manufacturing Inc. (1999) 177 F.T.R. 226 at 231.
[11] Costs shall follow the event.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-762-03
STYLE OF CAUSE: AMANDA DAY v. ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Hargrave, P.
DATED: July 16, 2004
WRITTEN REPRESENTATIONS BY:
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Ms. Amanda Day (No Written Representations filed) |
FOR THE APPLICANT |
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Ms. Joyce Thayer |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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(On Her Own Behalf) Victoria, BC |
FOR THE APPLICANT |
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Vancouver, BC |
FOR THE RESPONDENT
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