Date: 19990817
Docket: T-419-98
BETWEEN:
DR. SHOEL ROSENHEK
Applicant
- and -
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
| [1] A Notice of Status Review was issued by the Court to the parties on June 10, 1999 to show cause no later than July 12, 1999 why the application should not be dismissed for delay in accordance with Rule 380 of the Federal Court Rules, 1998 ("the Rules"). In response to the status review, the Applicant, who has been acting on his own behalf throughout, submitted written representations on July 12, 1999. |
| [2] By way of background, the Applicant filed an originating notice of motion on February 26, 1998 seeking an order setting aside a reconsideration decision of Revenue Canada dated January 16, 1998 and an order referring the matter back to Revenue Canada to cancel interest charges and penalties imposed on the Applicant"s income taxes for the period from 1988 to 1991. |
| [3] The Applicant did not file affidavit material in support of his application within the time prescribed by the Rules. By motion dated March 25, 1998 and filed April 23, 1998, the applicant sought leave to file his affidavit material. After the Applicant failed to serve the Respondent with his motion, he was directed by the Court to effect service within 10 days. On June 18, 1998, Mr. Justice Hugessen granted the Applicant an extension of time to file his affidavit, which the Applicant promptly did that same day. |
| [4] On September 16, 1998, the Applicant tendered a number of documents for filing, presumably to serve as his Application Record. The Associate Senior Prothonotary concluded that the documents were irregular and ordered them returned to the Applicant. The Applicant was granted an extension of time at the same time to file his Application Record no later than October 20, 1998. |
| [5] On October 14, 1998, the applicant filed a notice of motion on an ex parte basis seeking a further extension of time to file additional affidavit evidence and to file his Application Record. The affidavit which the Applicant sought to file was that of his psychiatrist, a Dr. Thurling. The proposed affidavit was, in the Applicant"s submissions, at the heart of his appeal. Because no justification had been provided by the Applicant to proceed without notice to the Respondent, the Applicant was directed by the Associate Senior Prothonotary to serve the motion record on the Respondent's counsel within 10 days. |
| [6] By Order dated December 18, 1998, Madame Justice Reed denied the Applicant"s motion for an extension of time to file additional affidavit material as well as his Application Record. On February 24, 1999, the Applicant was unsuccessful in obtaining an extension of time to file a notice of appeal from the above decision. There is no indication on file of any further steps being taken by the Applicant in the proceeding until July 12, 1999 when he filed written representations in response to the status review. |
| [7] To partially excuse the delay, the Applicant submits that he had endeavoured to file his Application Record, however he has been prejudiced in doing so by "erroneous information having been provided by employee [sic ] of the Reistry [sic] office of the Court with respect to the filing of the Application Record". He also blames the Court for failing to advise him on a timely basis of the denial of his motion for an extension of time to file additional material, thereby denying him the right to appeal the decision. The Applicant"s explanations are without merit. Having chosen to represent himself, the Applicant was required to follow the Rules . He alone was responsible for the delay and ultimate rejection of the Application Record. The Court cannot be faulted for the Applicant"s disregard of the Rules . |
| [8] The Applicant has recently filed a motion for an order extending the time to file the original Application Record submitted (and rejected) in September 1998. The Applicant further advises that he intends to file a requisition for hearing once his motion for extension of time has been accepted. |
| [9] Mr. Justice Hugessen established the following test to be applied by the Court when conducting a status review in Baroud v. Canada, ©1998ª F.C.J. No. 179: |
| 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 ? |
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.
| [10] A review of the Court file reveals that the Applicant attempted, somewhat awkwardly, to move his application along from the time the application was filed to the date his motion for an extension of time to file a notice of appeal was dismissed on February 24, 1999. There is no explanation provided however for the subsequent delay of approximately four months. In order to be allowed to continue with his application, the Applicant therefore had to demonstrate that concrete and prompt steps would be taken to move the matter forward. |
| [11] The only step identified by the Applicant at this stage is a further interlocutory motion to obtain an extension of time to file, in his words, "the original Applicant"s Application Record, the same record that was originally filed by the Applicant on a timely basis on or about September 16, 1998 and rejected by the Court as being a "pile of papers"". Such a motion would obviously prove futile. The Court has already ruled on this matter and the Applicant has not put forward any new facts which would warrant the Court"s reconsideration. |
| [12] The filing of an Application Record is an integral procedural step. The Applicant was denied an extension of time to file his Application Record in December 1998 and his attempt to appeal the decision was unsuccessful. As a result, the Respondent could have subsequently moved to dismiss the application for judicial review based on the Applicant"s unexcused failure to file his Application Record on time. In Delisle v. Canada (Procureur général) et al. , (1996), 121 F.T.R. 256, Prothonotary Morneau made the following comments regarding the consequences of the Applicant"s failure to file an Application Record in similar circumstances under the former Rules: |
Based on this court"s judgments and the scheme of rules 1600 to 1620, it seems to me that once an applicant in a specific situation has been denied permission under rule 1619 to disregard the requirement of filing an application record under rule 1606, the applicant"s application for judicial review will in general be struck out.
| [13] The Applicant has been provided an opportunity to satisfactorily explain the entire delay in the proceeding and to justify why this matter should be allowed to continue. He has failed to do so. |
ORDER
Not being satisfied with the Applicant"s reasons for the delay nor with his proposed steps to move the proceeding forward;
IT IS HEREBY ORDERED THAT:
- . The application for judicial review is dismissed.
Prothonotary
TORONTO, ONTARIO
August 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-419-98 |
| STYLE OF CAUSE: DR. SHOEL ROSENHEK |
| - and - |
| THE MINISTER OF NATIONAL REVENUE |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: TUESDAY, AUGUST 17, 1999
| WRITTEN REPRESENTATIONS BY: Dr. Shoel Rosenhek |
For the Applicant on his own behalf
Ms. Judith Sheppard
For the Respondent
| SOLICITORS OF RECORD: Dr. Shoel Rosenhek |
75 Riverside Drive East
Apartment 905
Windsor, Ontario
N9A 7C4
| For the Applicant on his own behalf |
| Morris Rosenberg |
Deputy Attorney General of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
Date: 19990817
Docket: T-419-98
Between:
| DR. SHOEL ROSENHEK |
Applicant
| - and - |
| THE MINISTER OF NATIONAL REVENUE |
Respondent
| REASONS FOR ORDER |
| AND ORDER |