Date: 19990907
Docket: T-498-99
BETWEEN:
CANADA POST CORPORATION
Applicant
- and -
ADITYA NARAYAN VARMA
Respondent
REASONS FOR ORDER AND ORDER
EVANS J.:
[1] This is a motion by Aditya Narayan Varma in which he seeks an order setting aside an order of Peter A.K. Giles, Esq., the Associate Senior Prothonotary, dated July 12, 1999. The order dismissed Mr. Varma"s motion for a stay of a requisition for a hearing date by Canada Post Corporation in respect of its application to have Mr. Varma declared a vexatious litigant under subsection 40(1) of the Federal Court Act , R.S.C. 1985 c. F-7.
[2] In his reasons for decision Associate Senior Prothonotary Giles held that the requisition should not be stayed pending the outcome of appeals from decisions of Roger R. Lafrenière, Esq., Prothonotary, dismissing two other motions made by Mr. Varma concerning the requisition: the appeals were defective and without substantive merit. The appeals from the orders of Prothonotary Lafrenière were dismissed after Associate Senior Prothonotary Giles had rendered this decision.
[3] Associate Senior Prothonotary Giles also dismissed a request by Mr. Varma in the same motion that Canada Post"s application be set down for a hearing of seven days" duration. This, he held, could not be the subject of a motion but was an administrative matter for the office of the Associate Chief Justice.
[4] On the basis of the written submissions apparently before him Associate Senior Prothonotary Giles was plainly correct to dismiss the motion. However, it became apparent from Mr. Varma"s oral submissions before me that his principal concern now is that the applicant"s requisition for a hearing was filed out of time. Having examined the complex file in this matter I have concluded that there have been irregularities, although not precisely of the kind alleged by Mr. Varma.
[5] On May 19, 1999 Prothonotary Lafrenière made an order that the parties to the application must complete all cross-examination on affidavits within 20 days of his order, and that "all subsequent steps are to follow in accordance with the Federal Court Rules ."
[6] Thus, if the cross-examinations were not completed until June 8, 1999 (i.e. 20 days after Prothonotary Lafrenière"s order), rule 309 gave the applicant another 20 days, which expired on June 28, 1999, to serve its application record. In fact it had filed its record on May 14, 1999. However, in the additional time provided by the Prothonotary"s order Canada Post served a further memorandum of fact and law on June 21, 1999.
[7] This is the date from which time is to be counted for the purpose of determining when the respondent"s record must be served. By virtue of Rule 310 the respondent had 20 days from June 21, 1999 to serve his record. When the applicant filed its requisition on June 30, 1999 the respondent had not served his record. The applicant"s requisition was therefore premature and should not have been filed at that time because the respondent had until July 12, 1999 to serve his record. The respondent has to date filed no record.
[8] I shall rectify these technical irregularities by permitting Mr. Varma to serve and file a respondent"s record within ten days from the date of this order. At the end of those ten days, or when he serves his record, whichever is the earlier, the applicant"s requisition filed on June 30, 1999 shall be treated as if it had been filed within ten days after July 12, 1999, and a date set for the hearing of Canada Post"s application.
[9] For these reasons the motion is dismissed on the terms set out above.
OTTAWA, ONTARIO "John M. Evans"
September 7, 1999. J.F.C.C.