Judgments

[1995] 1 F.C. 237

T-1380-92

Roger Bellefeuille (Applicant)

v.

Commercial Transport (Northern) Ltd. and Elliot Lake Freight Lines Ltd. (Respondents)

Indexed as: Bellefeuille v. Commercial Transport (Northern) Ltd. (T.D.)

Trial Division, Reed J.—Ottawa, July 14; Vancouver, July 21, 1994.

Practice — Dismissal of proceedings — Want of prosecution — Application for judicial review — R. 1606 requiring filing of application record within 60 days of filing originating notice of motion — Applicant attempting to file application record four months late — Court issuing show cause order why application should not be dismissed for “undue delay” under R. 1617 — Undue delay meaning significant period of delay without reasonable excuse — “Significant” fairly short in context of judicial review application — Four months considered significant — R. 1617 drafted in context of public concern for delay in court system — Counsel’s views of practice of Appeal Division, operating under different Rules, when it had jurisdiction under Federal Court Act, s. 28, not reasonable excuse — Concept of undue delay not requiring prejudice.

The Court issued an order requiring the applicant to show cause why his application for judicial review should not be dismissed for undue delay in its prosecution. Counsel for the applicant argued that he was misled by a change of the Federal Court Rules and by the shift of jurisdiction from the Appeal Division to the Trial Division. His past experience had led him to believe that delay in prosecuting his client’s application would not be prejudicial. The applicant applied to be allowed to proceed to a hearing without filing an application record.

On June 12, 1992, the applicant filed an originating notice of motion in the Trial Division for judicial review of the Canadian Human Rights Commission’s dismissal of his complaint of discrimination based on disability. The Federal Court Rules require the application record to be filed within 60 days of the filing of the originating notice of motion. That time limit expired on August 12, 1992. Rule 1617 authorizes the Court, on its own motion, to dismiss an application where there has been undue delay in prosecuting it. On November 3, 1992 the applicant was notified that the time limit for filing the record had expired. No response was received until December 7 when counsel attempted to file an application record. The Court then directed the applicant to justify an extension of time to file the record. Two judges of the Trial Division and three judges of the Appeal Division found that the applicant had not done so. The Appeal Division agreed that the Trial Division’s refusal to grant an extension of time had been a proper exercise of its discretion, but held that the Trial Judge had “erred in dismissing the application for want of prosecution in the absence of either a motion by a party or a show cause order by a judge.” The issues were: (1) whether the Appeal Division’s order was specific to the facts of this case or meant to establish broad rules for the interpretation of Rule 1617; (2) what is required for notice under Rule 1617; (3) whether a dismissal for undue delay, pursuant to Rule 1617, involves a test similar to that applicable when granting an extension of time for the late filing of an application record, or to the test applicable when a dismissal for want of prosecution under Rule 440 is ordered.

Held, the application for judicial review should be dismissed; the motion that the applicant be allowed to proceed to a hearing without filing an application record should be dismissed.

(1) The requirement of a show cause order was specific to the facts herein. Although many Rules require “notice” in the sense of giving someone “instructions to do something,” only two require that a show cause order be issued. If a show cause order were required for notice and an opportunity to be heard under Rule 1617, the Rule should have so expressly stated.

(2) The concept of undue delay in Rule 1617 means a significant period of delay without reasonable excuse. What will be significant is likely to be a fairly short period of time in the context of the procedures set out for dealing with judicial review applications. A delay of four months in filing an application record fits within that definition.

(3) When Rule 1617 was drafted, it was known that the requirements under Rule 440, to dismiss an action for want of prosecution, involved the three-pronged test of inordinate delay, no excuse, and prejudice to the defendant. With that knowledge, the wording chosen for Rule 1617 was “undue delay,” carrying with it the requirement that there be significant delay without reasonable excuse. A demonstration of actual or likely prejudice to one of the parties is not required because the Rule is applicable to judicial review proceedings, wherein the reviewing court does not usually have authority to make a decision in any final way; a judicial review application is supposed to be dealt with speedily and may be dismissed for undue delay in prosecution on a less stringent basis than that required for an application under Rule 440. Rule 1617 was drafted in the context of the heightened public concern about delay in the court system.

A four-month delay in filing the application record was a long delay in the procedural framework. A reasonable excuse had not been demonstrated. Counsel’s views of the practices of the Appeal Division, operating under different rules, when it had jurisdiction pursuant to Federal Court Act, section 28, was no excuse for not complying with the Rules of the Trial Division, after jurisdiction was transferred to it.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4), 28 (as am. idem, s. 8).

Federal Court Rules, C.R.C., c. 663, RR. 300.1 (as enacted by SOR/92-43, s. 2), 328, 355, 440, 468, 483 (as am. by SOR/92-726, s. 5), 1617 (as enacted by SOR/92-43, s. 19), 2300.

CASES JUDICIALLY CONSIDERED

REFERRED TO:

Bellefeuille v. Canadian Human Rights Commission et al. (1993), 66 F.T.R. 1 (F.C.T.D.); Bellefeuille v. Canada (Canadian Human Rights Commission), [1994] F.C.J. No. 760 (QL) (F.C.A.); Patex Snowmobiles Ltd. v. Bombardier Ltd. et al. (1991), 48 F.T.R. 221 (F.C.T.D.); Law Soc. of Man. v. Eadie, [1986] 6 W.W.R. 354 (Man. C.A.); United Kingdom (Department of Transport) v. Smaller (Chris) (Transport) Ltd. (1989), 103 N.R. 134 (H.L.); Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.); R. v. Askov, [1990] 2 S.C.R. 1199; (1990), 75 O.R. (2d) 673; 74 D.L.R. (4th) 355; 59 C.C.C. (3d) 449; 79 C.R. (3d) 273; 49 C.R.R. 1; 42 O.A.C. 81; Canada (Attorney General) v. Bernard (1993), 69 F.T.R. 239 (F.C.T.D.); Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447; (1994), 17 Admin. L.R. (2d) 2 (C.A.); Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [1994] F.C.J. No. 25 (QL) (F.C.A.).

AUTHORS CITED

Church, Thomas, et al. Justice Delayed. Willamsburg, Va.: National Center for State Courts, 1978.

Concise Oxford Dictionary of Current English, 7th ed. Oxford: Clarendon Press, 1982, “notice”.

Sgayias, David, et al. Federal Court Practice 1994. Toronto: Carswell, 1993.

ORDER pursuant to Rule 1617 of the Federal Court Rules requiring applicant to show cause why application for judicial review should not be dismissed for undue delay in prosecution, and motion for leave to have case heard without filing an application record. Order to go dismissing judicial review application.

COUNSEL:

Henry S. Brown, Q.C. for applicant.

David D. Sherriff-Scott for respondents.

SOLICITORS:

Gowling, Strathy & Henderson, Ottawa, for applicant.

Scott & Aylen, Ottawa, for respondents.

The following are the reasons for order rendered in English by

Reed J.: This is a troublesome case. It concerns delay. The Court issued an order requiring the applicant to show cause why his application for judicial review should not be dismissed as a result of undue delay in its prosecution. Counsel for the applicant argues that he was misled by a change of the Federal Court Rules [C.R.C., c. 663] and by the shift of jurisdiction from the Appeal Division to the Trial Division. His past experience led him to believe that delay in prosecuting his client’s application would not be prejudicial. The applicant seeks leave to have his case heard without the filing of an application record.

Background

The applicant filed, in this Court, a motion to have a decision of the Canadian Human Rights Commission set aside. The issues underlying that complaint arose as a result of the applicant becoming ill, in December of 1987. It is not necessary to describe the events in detail except to say that in April 1988 he sought employment from the respondents, Commercial Transport (Northern) Ltd. and Elliot Lake Freight Lines Ltd. This was refused. Eight months later, on December 9, 1988, the applicant filed a complaint with the Canadian Human Rights Commission alleging that he had been discriminated against because of his illness (disability). That complaint was dismissed in May of 1992.

On June 12, 1992, the applicant filed an originating notice of motion for judicial review in the Trial Division, pursuant to section 18 [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act, R.S.C., 1985, c. F-7, as amended. Such applications are governed by Federal Court Rules 1600-1620. A useful summary of these is found in Sgayias, Kinnear, Rennie and Saunders, Federal Court Practice 1994, at page 724.

Those Rules require, among other things, the filing of an application record by the applicant within 60 days of the filing of the originating notice of motion. That time limit expired, for the applicant, on August 12, 1992. Rule 1617 [as enacted by SOR/92-43, s. 19] authorizes the Court, on its own motion, to dismiss an application where there has been undue delay:

Rule 1617. (1) The Court may, on application or its own initiative, by order, dismiss an application for judicial review by reason of the applicant’s undue delay in prosecuting it.

(2) The applicant and other parties shall be given at least 10 days notice and an opportunity to be heard before an order is made under paragraph (1). [Underlining added.]

On November 3, 1992, a letter was sent to counsel for the applicant, on behalf of the Court. This pointed out that the time for filing an application record had expired:

On June 12, 1992, you filed an Originating Notice of Motion pursuant to Section 18.1 of the Federal Court Act. We have not received the application record and the time limit for filing the record has expired under Rule 1606.(1):

Application Records

Rule 1606.(1) The applicant shall, within 60 days after filing the notice of motion,

(a) file the number of copies of its application record required under Rule 1609(2); and

(b) serve a copy of its application record on all other parties.

The Court has directed the Registry to advise you that if you fail to comply within the next ten (10) days, the matter will be sent to the Court and may be dismissed for want of prosecution. [Underlining added.]

No response was received within the ten-day period, although counsel for the applicant did attempt to file an application record on December 7, 1992. This led to another communication, by letter, on behalf of the Court, to counsel. This letter was dated December 14, 1992 and reads:

This is to confirm my telephone conversation with you on December 10, 1992 during which I advised you of the Honourable Mr. Justice Joyal’s directions.

“Court directs that before proceeding further with the application, the applicant file in this Court under affidavit form evidence to justify an extension of delay to file record—The 60 day delay expired on or about August 12^th 1992. Record filed December 7, 1992, close to four months late. Applicant is required to offer explanations.” [Underlining added.]

What happened thereafter is set out in decisions by the Trial Division (T-1380-92) dated February 25, 1993 [(1993), 66 F.T.R. 1], and the Appeal Division (A-204-93) dated May 25, 1994 [[1994] F.C.J. No. 760 (QL)]. I do not think it necessary to repeat the events described therein. It is sufficient to note that two judges of the Trial Division and three judges of the Appeal Division found that the applicant (through his counsel) had not demonstrated reasons sufficient to justify the granting of an extension of time within which to file an application record.

The Appeal Division agreed that the Trial Division’s refusal to grant the applicant an extension of time had been a proper exercise of its discretion. At the same time, the Appeal Division held that the Trial Judge had “erred in dismissing the application for want of prosecution in the absence of either a motion by a party or a show cause order by a judge.” Two questions arise from this decision: (1) what is required for notice under Rule 1617, and (2) whether a dismissal for undue delay, pursuant to Rule 1617, involves a test similar to that applicable when granting an extension of time for the late filing of an application record, or to the test applicable when a dismissal for want of prosecution under Rule 440 is ordered. Connected to these issues is the question whether the Appeal Division’s order, in this case, was specific to the facts of this case or was meant to establish broader rules of interpretation for Rule 1617.

Notice Requirement Under Rule 1617

In so far as the notice requirements are concerned, I have concluded that the requirement of a show cause order is specific to the facts of this case. My reasons for this conclusion follow. Notice is required in many provisions in the Rules: notice of change of a solicitor (Rule 300.1(3) [as enacted idem, s. 2]); notice of resumed hearing (Rule 328); notice of discontinuance (Rule 406(1)); notice to admit documents (Rule 468(3)); notice of time and place for trial (Rule 483 [as am. by SOR/92-726, s. 5]). In all these cases, the word “notice” is used in its ordinary, dictionary meaning to give someone “instructions to do something” or to give a “warning” to “heed” or take “cognizance” of certain matters.[1] By way of contrast, there are two occasions when the Rules require that a show cause order be issued: when allegations of contempt are made (Rule 355(4)) and when applications are made ex parte for the execution of a judgment by garnishment on a third party (Rule 2300). It is hard to understand why, if a show cause order is required in order for notice and an opportunity to be heard, under Rule 1617, the text of that Rule was not expressly drafted to so require—for example, along the lines of Rule 355(4).

In the present case, the letter of November 3, 1992, did not clearly refer to Rule 1617, it referred to delay in filing the application record. Equally, the directions from the Court on December 10 (confirmed by letter of December 14) focused primarily on the need to justify the delay in the filing of the application record. While one might assume that counsel would have realized that this was all in the context of the Court preparing to act, to strike the application on its own motion, pursuant to Rule 1617, it is understandable that there was confusion. In that context the Court of Appeal returned the matter to me with instructions that I issue a show cause order requiring the applicant to demonstrate why there had not been undue delay in prosecuting the application. I interpret that requirement as particular to the facts of this case.

An order to show cause was issued and the applicant has responded to this order and has filed, as well, a motion for leave to proceed with his application without filing an application record.

Applicable Test—“Undue Delay”

The question which arises, then, is what is the meaning of undue delay for the purposes of Rule 1617?

As I understand the applicant’s argument, it is that in order to dismiss for undue delay, pursuant to Rule 1617, there must not only have been unsatisfactorily explained delay but also a finding that the non-defaulting party has suffered or is likely to have suffered prejudice. Reference is made to the decisions in Patex Snowmobiles Ltd. v. Bombardier Ltd. et al. (1991), 48 F.T.R. 221 (F.C.T.D.); Law Soc. of Man. v. Eadie, [1986] 6 W.W.R. 354 (Man. C.A.) and United Kingdom (Department of Transport) v. Smaller (Chris) (Transport) Ltd. (1989), 103 N.R. 134 (H.L.). That is, it is argued that the requirements which must be met when an application to strike for want of prosecution is brought, for example, under Rule 440, are applicable. In such case an applicant must demonstrate either that the delay was intentional and contumelious, or, that the delay was inordinate, inexcusable and prejudicial to the defendant.[2]

I am not persuaded that this is the case. When Rule 1617 was drafted, it was known that the requirements under Rule 440, to dismiss an action for want of prosecution, involved the three-pronged test of inordinate delay, no excuse, and prejudice to the defendant. With that knowledge, the wording chosen for Rule 1617 was “undue delay.” While that term carries with it the requirement that there be significant delay without reasonable excuse, I am not persuaded that a demonstration of actual or likely prejudice to one of the parties is required.

Not only does the wording of the Rule lead me to this conclusion but the fact that it is applicable to judicial review proceedings, not trials, is also relevant. In judicial review proceedings, the reviewing court does not usually have authority to make a decision in any final way. A successful application results in the case being sent back to the relevant tribunal with instructions that it start over again. This means that the court’s disposition is only a step on the way to the final resolution of the dispute. Judicial review applications are not as complex as trials; evidence gathering and presentation is not in issue. These factors persuade me that it was intended that judicial review applications should be dealt with speedily, and that dismissal for failure to do so could occur on a less stringent basis than that required for an application under Rule 440.

In addition, Rule 1617 was drafted in the context of the heightened attention which is now being paid to delay in the court system. We are all aware of studies,[3] which have shown that the lack of efficiency in the courts is viewed by the public as a more serious problem than pollution or inadequate education.

There have been decisions such as that in R. v. Askov, [1990] 2 S.C.R. 1199. The Chief Justice of Canada has made numerous speeches indicating that the reduction of delay in court proceedings is a matter that should be engaging everyone’s concern and effort. Some jurisdictions, such as Ontario, have introduced case management procedures with guillotine type sanctions. I venture to suggest that practically every judge who has had occasion to speak to individuals, who have encountered the litigation process, outside the legal profession, hear from them rancorous and strident criticism directed at the slowness of that process. In my view, the wording of Rule 1617 recognizes that undue delay, in itself, is a ground for striking an application, without the need to prove likely prejudice to one or other of the parties.

Present Case

As has been noted, in my view, undue delay requires a showing of significant delay for which there is no reasonable explanation. While unexplained delay was found to exist in the earlier proceedings, there was no express consideration as to whether it should be considered to have been significant. The present hearing is a new and different proceeding, and additional evidence was brought forward by both parties.

The applicant’s arguments are three in number. Firstly, there was not a great deal of delay—four months is a fairly short period of time—and, while counsel did not respond immediately to the November 3, 1992 letter, he did respond within a month. Secondly, counsel states that he was lulled into believing that compliance with time limits, in the Rules, would not be prejudicial because he had previously pursued nine section 28 [as am. by S.C. 1990, c. 8, s. 8] applications, before the Appeal Division, and in each of these the required memoranda of argument were filed beyond the time limits required by the Rules. These memoranda were accepted and filed by the Registry with no objections being taken by either the Registry or the Appeal Division. In counsel’s words the practice was very “loose.” He expected this would also be the practice in the case of a section 18 application governed by Rules 1600-1620. He was taken by surprise. His third argument is that all the evidence required for the hearing of the application is before the Court and has been since July 7, 1992. The only step which was not taken in a timely fashion was the filing of the application record. This, he notes, is a document compiled for the convenience of the Court and is not essential. It is argued that the absence of such a document should not prevent the Court dealing with his client’s application on the merits.

The respondents argue, in case prejudice is a relevant factor, that the cumulative delays in dealing with this case have caused great prejudice. The action which gave rise to the complaint occurred in early 1988. It is based on the alleged employment practice of the respondents prior to 1988. If the applicant’s judicial review application is successful, and the matter sent back to the Canadian Human Rights Commission, individuals would be expected to give evidence concerning events which occurred over eight to ten years ago. Some of the potential witnesses can no longer be located, others, at best, will have hazy memories. The delay which has occurred, the respondents state, has created intolerable prejudice.

Counsel for the applicant responds to the allegations of prejudice by noting that the only delay in issue before this Court is the four months between August and December in 1992. It is only prejudice arising from that delay which should be considered.

With respect to the argument that the delay was not long, I think, in the context of a judicial review application it was long. The Rules require an applicant to file all its evidence (in affidavit form) at the time the application is commenced. The respondent is then given 30 days within which to file evidence. The applicant is given 60 days from the date of the originating motion, that is 30 days after the filing of the respondent’s evidence, to file an application record. Subsequent steps and time limits then follow, including the filing by the respondent of its application record. In the context of this procedural framework, I think a four-month delay in filing the application record is a long delay. As noted above, I think there are several reasons why judicial review applications should be dealt with expeditiously and why delays which would not be considered to be long in the context of a trial, are long in the context of a judicial review application.

Counsel’s argument, that he was lulled into a false sense of lackadaisicalness, I find more difficult to answer. It is indeed unfortunate that this occurred. I am not convinced, however, that I should accept this as a reasonable excuse for delay. In my view, this is a situation where the adage “hard cases make bad law” is applicable. I do not think I can characterize counsel’s perception of the practices of one Division of the Court, when jurisdiction is held by it, as an excuse for not complying with the Rules of the other Division, when jurisdiction is transferred to it.

I agree that the filing of an application record is a matter of convenience for the Court. It is also, however, an integral procedural step. It includes the evidence on which the applicant intends to rely, together with a memorandum of argument. It is not merely a collation of all materials that have been filed. The application record should serve to define the issues and narrow the focus of the application. It is in response to the applicant’s application record that the respondent prepares and files its application record. There is no doubt that the Court can waive compliance with the requirement that an application record be produced. Rule 1619 so provides. This requirement becomes irrelevant, however, if the application is struck for undue delay in its prosecution.

In so far as prejudice is concerned, I accept the respondents’ argument that the cumulative delay in this case is very prejudicial. Much of that delay, however, was not incurred in this Court. The first eight months was of the applicant’s own making. The next, almost three and a half years, was caused by the Canadian Human Rights Tribunal. The following eight months was taken up with the proceedings in the Trial Division, of which approximately six months occurred after the non-filing of the application record on August 12, 1992. Counsel for the applicant is right, however, that for present purposes it is only the four months between August 12, 1992 and December 7, 1992 which are relevant. I could not find prejudice arising from that delay. I might be persuaded that the initial eight month period of delay is also something I should take into account, but I am not convinced that the other periods of delay are relevant to the question before me.

Status of the Canadian Human Rights Tribunal

Shortly before the hearing of this application, a letter was received from the Canadian Human Rights Commission indicating that it would not be appearing since the decisions in Bernard[4] and Merrick[5] have held that it is not entitled to be a party. The letter stated that the Commission was not applying, at the present time, to be added as an intervenor although it reserved its right to do so in the future, should it so wish. I have accordingly amended the style of cause to remove the Commission as a party.

Conclusion

For the reasons given, I have concluded that the concept of undue delay in Rule 1617 means a significant period of delay without reasonable excuse. What will be significant is likely to be a fairly short period of time in the context of the procedures set out for dealing with judicial review applications. Certainly four months’ delay in filing an application record fits within that definition. I cannot conclude that a reasonable excuse has been demonstrated. Counsel’s views of the practice of the Appeal Division, operating under different Rules, when it had jurisdiction pursuant to section 28 of the Federal Court Act, cannot be characterized as a reasonable excuse. The concept of undue delay does not require that there be a finding that a likelihood of prejudice exists as a result of the delay. The motion that the applicant be allowed to proceed to a hearing without filing an application record is, of course, incompatible with a dismissal pursuant to Rule 1617. The conclusion which has been reached is that the latter is the appropriate order. An order will issue accordingly.

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