Date: 20020506
Docket: A-259-00
Neutral citation: 2002 FCA 172
Present: SHARLOW J.A.
BETWEEN:
JOSEPHINE E. MARSHALL
Appellant
and
HER MAJESTY THE QUEEN,
the PUBLIC SERVICE ALLIANCE OF CANADA, and the
UNION OF PUBLIC SERVICE COMMISSION EMPLOYEES
Respondents
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario May 6, 2002.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20020506
Docket: A-259-00
Neutral citation: 2002 FCA 172
Present: SHARLOW J.A.
BETWEEN:
JOSEPHINE E. MARSHALL
Appellant
and
HER MAJESTY THE QUEEN,
the PUBLIC SERVICE ALLIANCE OF CANADA, and the
UNION OF PUBLIC SERVICE COMMISSION EMPLOYEES
Respondents
REASONS FOR ORDER
[1] The appellant seeks an extension of time for serving and filing her memorandum of fact and law. The principles to be applied are set out in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (C.A.), at paragraph 3:
The proper test is whether the applicant has demonstrated
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[2] This case has been plagued by delay for reasons that are unusually complex. For that reason, it is necessary to set out the history of this case in some detail.
[3] This matter began in 1985 when Ms. Marshall filed a statement of claim in the Trial Division (T-1085-85). Apparently, her cause of action was work related. It appears that no steps were ever taken in that action. By letter to the Court dated June 27, 1989, Mr. Michael Iosipescu, a Nova Scotia lawyer, gave notice that he would be acting as solicitor for Ms. Marshall and that he intended to proceed with the matter. Still, nothing was done.
[4] Ms. Marshall wrote a number of letters to the Court over the years (January 23, 1989, September 13, 1990, July 15, 1991) indicating that ill health prevented her from moving this matter forward, but that she fully intended to do so. However, none of her letters suggest that Mr. Iosipescu had ceased to act for her.
[5] Ms. Marshall commenced a second action in 1992 (T-1029-92) which, according to some of the material in the record, refers to some of the same facts as the 1985 action. It appears that the 1992 action is proceeding under case management. The extent of the overlap between the 1985 action and the 1992 action is not clear.
[6] On March 29, 1996, then Associate Chief Justice Jerome notified Mr. Iosipescu, who apparently was still on the record as Ms. Marshall's solicitor, that consideration was being given to dismissing the action for delay. No response was received and the action was dismissed by order dated June 26, 1996.
[7] The June 26, 1996 order was sent to Mr. Iosipescu. He responded with a letter dated July 8, 1996 indicating that he did not represent Ms. Marshall, that he only did research for her, and that he did not have an address to forward the order to her. The record discloses no explanation for the apparent contradiction between Mr. Iosipescu's letters of July 8, 1996 and June 27, 1989.
[8] Nor does the record indicate whether the Court made any attempt, after receiving Mr. Iosipescu's letter of July 8, 1996, to contact Ms. Marshall directly.
[9] Ms. Marshall says that she learned only in October of 1999 that her 1985 action had been dismissed on June 26, 1996. On or about March 14, 2000, Ms. Marshall filed a notice of motion for an order setting aside that order and also seeking an order consolidating her 1985 action and her 1992 action. That motion was dismissed by Blais J. on April 13, 2000. His order reads as follows:
UPON being satisfied that the plaintiff has failed to provide a sufficient basis to justify to set aside the order of Justice Jerome dated June 26, 1996, in fact eleven years after the statement of claim was filed in the Federal Court;
UPON being satisfied that the plaintiff has provided little justification for the long delay that occurred;
UPON being satisfied that the defendants would be prejudiced by this long delay;
AND UPON being satisfied that it would not be appropriate to consolidate the action of Court File No. T-1085-85 with that of Court File No. T-1029-92.
IT IS HEREBY ORDERED THAT:
The motion be dismissed without costs.
[10] On April 25, 2000, Ms. Marshall appealed that order, thus beginning the present proceeding. The notice of appeal was amended on May 8, 2000. The agreement as to the contents of the appeal book should have been filed on May 25, 2000. No agreement was filed by that date.
[11] On December 22, 2000, a notice of status review was issued. Submissions were made by Ms. Marshall and also by the respondent unions, who opposed the continuance of the appeal on the ground of excessive delay through the history of this matter and the 1992 action.
[12] On January 10, 2001, Rothstein J.A. made an order permitting the appeal to continue. He set a March 15, 2001 deadline for the filing of an agreement as to the contents of the appeal book or a motion to have the Court determine the contents. The order stated that a failure to comply could result in the appeal being dismissed without further notice.
[13] On March 15, 2001, Ms. Marshall sent the Court a letter seeking an extension of time, citing medical problems. The respondent unions took no position with respect to that request.
[14] Ms. Marshall wrote to the Court again on March 26, 2001 to seek a further extension for six months, again citing medical problems. The respondent unions did not comment on that letter, but a response was submitted by the Crown in the form of a letter from counsel dated April 2, 2001. The Crown objected to further delay. The basis of the objection was the history of delay in this matter as well as the 1992 action, which was then under case management. The letter states that in 1995, Ms. Marshall had commenced a third action against the Crown, apparently unrelated to the other two, which was also under case management. The letter also attempts to cast some doubt on the credibility of Ms. Marshall's submissions as to her medical condition. The second last paragraph reads as follows:
The Appellant's letters of March 15 and 26 indicate that she is unable to deal with this matter as a result of complications following a stroke in November. The Court should be aware that the Appellant has not been prevented from proceeding with her other Federal Court proceedings during this same period. In action T-2208-95 the Plaintiff participated in several days of discovery examination in November 2000. In action T-2208-95 in December 2000 she prepared a lengthy and complicated submission for the purpose of settlement discussions in accordance with Rule 257. On December 20, 2000 the Appellant served and filed a requisition for a pre-trial conference accompanied by a pre-trial conference memorandum. On March 29, 2001 the Appellant participated in a pre-trial conference in that action.
The letter indicates that a copy was sent to counsel for the respondent unions, but there is no indication that a copy was sent to Ms. Marshall.
[15] Based on this correspondence, Stone J.A. made a direction on April 11, 2001 which reads as follows:
Advise the applicant that unless she moves expeditiously not later than May 11, 2001, for an extension of time to comply with the Court's order of January 10, 2001 by filing and serving a notice of motion pursuant to the Federal Court Rules, 1998, the Court will initiate steps to determine whether the appeal should be dismissed for delay.
[16] Ms. Marshall then filed a motion which resulted in an order by Desjardins J.A. on June 5, 2001 setting a new deadline of December 5, 2001 for the filing of an agreement as to the contents of the appeal book or a motion to have the Court determine its contents. That order apparently was complied with. The appeal books were filed on December 4, 2001.
[17] The next step should have been the filing of Ms. Marshall's memorandum of fact and law by January 21, 2002. That deadline was missed. On January 31, 2002, Ms. Marshall sought an extension of time for the filing of her memorandum of fact and law, again citing ill health and a problem with her typewriter. In support of her motion she filed an affidavit to which was appended the following:
(1) A report from Charles E. Maxner, MD, FRCPC (Ophthalmology Clinic, Victoria General Hospital, Halifax) dated January 3, 2001, describing the results of referral relating to Ms. Marshall's complaint of diplopia (double vision). The examination took place on December 8, 2000.
(2) An insurance form apparently signed on July 18, 1996 by a physician from the Environmental Health Clinic at the Victoria General Hospital, Halifax, indicated that Ms. Marshall was then suffering from chronic fatigue syndrome and other difficulties.
(3) A letter dated January 11, 1999 from Dr. Patricia Beresford, BA, MD, of Halifax to an insurance company requesting coverage for vitamin and mineral supplements.
(4) A laboratory report from October of 2001 apparently referring to a blood test that detected certain levels of mercury.
(5) A letter dated January 29, 2002 from Dr. Beresford (see item (3) above) addressed "to whom it may concern" which reads as follows:
I am writing to request an extension to the submission of the memorandum of Fact and Law regarding Docket A-259-00 in the Federal Court of Appeal.
The request is being made because of her medical conditions which affect her cognitive functions and which lead to pain and fatigue. These problems have inhibited the submission of the documents on the previously designated due date.
Thank you for your assistance in this matter.
[18] The respondent unions consented to the motion and the Crown did not oppose it. It was granted by Malone J.A. on February 12, 2002. He set a new deadline of March 15, 2002 for the filing of the memorandum. That new deadline was missed.
[19] Today, I am dealing with a motion filed by Ms. Marshall on April 9, 2002 to seek a further extension of time for filing her memorandum. She again cites medical problems, but provides more detail than before. All respondents oppose the motion.
[20] Ms. Marshall's motion is supported by her own affidavit, sworn April 8, 2002. It reads in part as follows:
2. Since December 1985, I have been unemployable and under doctor's care due to work-related injuries and illness which began in 1975 and caused impairments of a physical, mental, emotional, and psychological nature.
3. Amongst other medical diagnoses, I have been diagnosed as suffering from toxic fumes poisoning, chronic fatigue syndrome, fibromyalgia, reactive anxiety, post-traumatic stress syndrome, toxic brain syndrome, depression, environmental sensitivities, chemical sensitivities and chemical contaminations; and arthritis.
4. In addition, the following incidents further strained my health and adversely affected my ability to function:
a) On November 17, 2000, I suffered a stroke which not only aggravated the pre-existing health problems but also generated new health problems;
b) On November 7, 2001, I was diagnosed as having a higher than normal level of mercury in my blood;
c) On December 14, 2001, the Halifax Police Department advised me that they were re-opening their investigation into the work-related sexual assaults I had previously reported, with several conversations and interviews having since been conducted.
[21] The affidavit also requests that reference be made to the material filed with her previous motion (see above), and describes in considerable detail the efforts she had made to complete her memorandum and the difficulties she had. Appended to her affidavit are the following documents:
(1) A disability tax credit certificate apparently signed by Dr. Beresford on March 8, 2002, describing Ms. Marshall's diagnosis as follows:
She suffers from chronic fatigue syndrome and cognitive impairment. Her cognition appeared to decline after chemical exposures in the workplace and after a head injury [illegible] in 1978. Her cognitive difficulties interfere with her ability to communicate and to problem solve in her day to day activities. She has grave difficulties working out money exchange and relies on others to help her. Thinking and communicating takes an inordinate amount of time. Please see report by Sharon Cruickshank, Psychologist.
The referenced report is attached. It is dated February 6, 1985 and relates to an "evaluation of auditory processing" due to complaints then attributed to a 1979 car accident.
(2) A letter dated October 17, 1998 from T.J. Marrie, MD, FRCP(C) to an insurance company, apparently in support of a disability insurance claim, setting out a history of Ms. Marshall's medical problems. The letter refers to exposure to toxic fumes in 1975 while employed as a school teacher, a sexual assault the following year, certain infections she suffered in 1980 that she felt might have been attributed to problems with the buildings in which she was working at the time, and a period of unemployment in 1985 and 1986.
(3) A disability tax credit certificate apparently signed on March 16, 1989 by J. William LaValley, M.D.
(4) A report dated December 4, 1990 from Gerald H. Ross, MD, CCFP, DIBEM, FAAEM of the Environmental Health Clinic referring to his examination of Ms. Marshall on November 14, 1990. He listed her complaints at that time as "1. Brain fog. 2. Fatigue. 3. Chemical exposures. 4. Chemical sensitivity. 5. Digestive problems." His "diagnostic impression" was "1. Toxic brain syndrome. 2. Multiple chemical sensitivities by history. 3. Arthralgia/myalgia. 4. Reactive anxiety."
(5) A statement of disability apparently signed by Dr. Ross on August 24, 1993 for an insurance company.
(6) A letter dated February 27, 1997 from Dr. Beresford to a lawyer, apparently related to a workers' compensation claim, confirming the "diagnostic impressions" of Dr. Ross. This letter includes the following:
I began seeing Josephine on August 18, 1995 in follow up to Dr. Gerald Ross, in my position of staff physician at the Dalhousie Environmental Health Centre. At that time she gave a very tangential history, darting from one thing to another and I had a great deal of difficulty in following her. I did learn that she had multiple exposures and multiple traumatic experiences in the workplace, and we have since then reviewed these in detail. She reported exposures to toxic fumes and pesticides in an old building where she worked from 1972 to 1978. She also related exposures to formaldehyde and cigarette smoke from 1980 to 1985. I was most impressed by her inability to focus and organize her thoughts, certainly displaying abilities not in keeping with a person who taught for years and was a PHD candidate. On her first visit, she complained of sweats, fatigue and lethargy, intolerance to weather changes, should tendinitis, facial blemishes and vaginal bleeding.
I have seen Josephine subsequently on September 29, 1995; November 17, 1995; November 23, 1995; January 24, 1996; February 23, 1996; May 18, 1996; July 05, 1996; September 11, 1996; October 14, 1996; December 10, 1996 and February 19, 1997.
Her complaints have continued to include mental fog; intolerance to environments outside her home, for example her garden or shopping malls; arthralgias; she struggles with emotional responses to old traumas in the workplace; increasing difficulties coping with daily living; difficulties with getting organized to write or type; several episodes of eye problems (infections and dryness) and she continues to struggle with cognitive abilities and the frustrations associated with this.
(7) A letter dated July 14, 1998 from Lynda Johnson, MSW, RSW, to Dr. Beresford, apparently in support of Ms. Marshall's workers' compensation claim, describing the effect on Ms. Marshall of certain sexual assaults in the workplace in 1975, 1979 and 1980.
[22] As mentioned above, all respondents oppose this motion, arguing that none of the four conditions listed in Hennelly have been met. I will deal with each in turn.
[23] Has Ms. Marshall provided evidence of a continuing intention to pursue this appeal? In my view, she has. In spite of the fact that Ms. Marshall's progress in making this appeal ready for hearing has been slow, she has obviously tried to take the appropriate steps. The appeal is slightly more than two years old, which is not inordinate given the difficulties Ms. Marshall has apparently faced.
[24] Does the appeal have merit? It must be said that it may be difficult for Ms. Marshall to succeed in this appeal. The issue is whether Blais J. erred in making an order that has a significant discretionary component. However, having reviewed the appeal book filed by Ms. Marshall on December 4, 2001, I am not persuaded that the merits of her case are so slight that it should be dismissed at this stage.
[25] Are the respondents prejudiced by the delay? The respondents say they are, but they appear to be focussing on the delay from 1985, when the underlying action was commenced. However, the only delay that is relevant for the purposes of this motion is the delay in prosecuting this appeal. If all steps had been completed on a timely basis, this appeal might have been heard a year ago. I find it impossible to accept that the additional year, even if extended further, would make it more difficult for the respondents to deal with the merits of the appeal.
[26] Is there a reasonable explanation for the delay? In this regard, I note that Ms. Marshall's material has left some gaps. For example, the reports submitted with her most recent affidavit do not substantiate her assertion that she suffered a stroke in November of 2000. Nor do they explain the relevance, if any, of elevated levels of mercury in the blood, or the connection between her medical problems and the investigation by the Halifax Police of her alleged sexual assaults. And there is evidence that Ms. Marshall has been able to take steps in some of the other proceedings. However, the questions raised by Ms. Marshall's material might well be explained by her medical problems, which apparently have resulted in a certain degree of cognitive dysfunction. The respondents have provided no evidence that casts doubt upon Ms. Marshall's assertions that she suffers from the conditions she has named. On balance, I am satisfied that the delay has been reasonably explained.
[27] I conclude that this motion should be allowed.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-259-00
STYLE OF CAUSE: JOSEPHINE E. MARSHALL v. HER MAJESTY THE QUEEN ET AL.
REASONS FOR ORDER BY: Sharlow, J.A.
DATED: May 6, 2002
WRITTEN REPRESENTATIONS BY:
Ms. Josephine E. Marshall Appellant on her own behalf
Mr. Martin C. Ward for the Respondent, Her Majesty the
Queen
Mr. David Yazbeck for the Respondent, Unions
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for the Respondent, Her Majesty the
Deputy Attorney General of Canada Queen
Raven, Allen, Cameron & Ballantyne for the Respondent, Unions
Barristers & Solicitors
Ottawa, Ontario