Federal Court Decisions

Date: 20041021

Docket: T-1533-02

Citation: 2004 FC 1467

BETWEEN:

                                  KA-NEE-KA-NEET (LAWRENCE AGECOUTAY)

TRADITIONAL, INHERENT HEAD-CHIEF,

of the ANISHINABE NATIONS

                                                                                                                                          Applicant

                                                                           and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

and ROBERT NAULT, C.O.B. MINISTER OF INDIAN AFFAIRS

and MARC LA FRENNIERE C.O.B. DEPUTY MINISTER OF INDIAN AFFAIRS

                                                                                                                                  Respondents

                                                        REASONS FOR ORDER

HARGRAVE P.

[1]                 These reasons arise out of case management Rule 385(2), which allows a case management judge or prothonotary to order what is, in effect, an interim status review, similar to that provided for in Rule 382. On a Rule 382 status review the Court may, among other approaches, require an 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. This is just such a status review.

BACKGROUND

[2]                 By way of background, by a Notice of Application filed 19 September 2002 the Applicant, as Inherent Head-Chief of the Anishinabe Nations, of the Turtle Island Reserve, with an address in Regina, Saskatchewan, seeks mandamus requiring the Crown to pay to him annuities and augmented annuities, both outstanding and due and to be paid in the future, to the Anishinabe Nations.

[3]                 The Inherent Head-Chief, Ka-Nee-Ka-Neet, also known as Lawrence Agecoutay, acts for himself. As a lay litigant he has had difficulty with procedure and with the time limits set out in the Federal Court Rules. On 13 May 2003 he obtained a time extension for the filing of his affidavits.

[4]                 In July 2003 the Crown filed a motion to strike out the proceeding, with the Applicant responding with a motion for summary judgement. The summary judgement material, being both an inappropriate response and not in proper form, was returned to the Applicant, by Order of 24 July 2003: the Applicant was given a week to serve and file an appropriate responding motion record. The Applicant did not respond to the Crown's motion to strike out.

[5]                 On 4 December 2003 the Crown's unopposed motion to strike out was denied even though "The Applicant's application may be woefully ill-founded ... ". The Court held the situation not to be an exceptional one in which the Court would strike out a judicial review matter, relying on David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (FCA). The Court suggested that the Crown could, more appropriately, make its submission at the eventual hearing of the proceeding on its merits. However special management was ordered. By Order dated 11 February 2004 the Chief Justice ordered special management.

[6]                 The first case management conference took place by telephone on 14 May 2004. By that time the Applicant had delivered written cross-examinations to the Crown, which the Crown expected to have answered in June of 2004, with the time for filing the Applicant's Rule 309 record to run from receipt of answers to the written cross-examination. That being the situation the Applicant's record became due 28 June 2004.

[7]                 During a 5 July 2004 case management conference I allowed the Applicant further time, until 19 July 2004, to file his record. During that case management conference Mr Agecoutay indicated he wished to bring a proceeding under section 46 of the Criminal Code, dealing with high treason, against the Crown as trustee and that may account for a seeming lack of interest in the Federal Court proceeding.

[8]                 The Applicant's record had not been filed by the time of the next case management conference, 17 August 2004. I therefore told both the Applicant and Crown counsel that there would be a case management Order giving notice of a further status review. That Order, dated 17 August 2004, gave the Applicant until close of registry on 17 September 2004 within which to serve and file written representations explaining why the proceeding ought not to be dismissed, on a status review, for delay. So that the Applicant might know something of the procedure the Order referred to the requirements, to be met on a status review, as set out in Baroud v. Canada (1998), 160 F.T.R. 91 (FCTD).

[9]                 The Applicant has filed nothing in response to the notice of status review, however the Respondents took advantage of an explicit opportunity to file a response and did so on 29 September 2004, having served the Applicant with a copy of that response.

CONSIDERATION

[10]            The apparent lack of interest in, or continued intention to pursue this proceeding, shown by the Applicant, is indeed a reflection of a comment made by Prothonotary Tabib in her 13 May Order in which the Applicant was allowed an initial extension of time, an extension of time within which to file affidavits in support of his application. At that time the Applicant was in fact granted an extension of time, however Prothonotary Tabib commented upon a three months' delay between a Direction of 21 November 2002, requiring the Applicant to apply for an extension of time and the filing of the time extension motion:

No explanation is provided, however, for the subsequent three-month period of delay between the date of the direction issued by Prothonotary Hargrave and the date the present motion is filed. The unexplained period of inaction seriously undermines the Applicant's contention that he has maintained a continued intention to pursue the proceeding.

This sort of delay and lack of any apparent continuing intention to pursue this application has been ongoing.

[11]            In Baroud v. Canada (supra) Mr Justice Hugessen established a two-step test for the Court to addressing in exercising discretion, under Rule 382, to determine whether, on the one hand, a proceeding should be dismissed for delay or, on the other hand, allowed to continue. That same two-part test, to which I now turn, is equally applicable to an interim status review under Rule 385. Mr Justice Hugessen sets out the test as follows:

[4]         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?

[5]        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. (Page 92)

I have set out this quotation from Baroud as length in order to include Mr Justice Hugessen's statement that "... 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.". Thus the onus is on the Applicant to show why his application should not be dismissed.

[12]            While the Crown acknowledges that it continues of the view that the Applicant does not have an arguable claim, the Crown is content to observe that the Applicant has not provided any submissions and thus there can be no issue as to whether he has failed to discharge the onus placed upon him.

[13]            The Applicant has made no effort to satisfy me that this proceeding should continue. However, on the Court's record, including case management directions and correspondence and the absence of any expressed intention by the Applicant to proceed, I am not satisfied that the proceeding should continue. It is therefore dismissed for delay.

COSTS

[14]            I now turn to the subject of costs. Mr Justice Gibson wrote, in Merck & Co. v. Novopharm Ltd. (1998), 152 F.T.R. 74 (FCTD) at 79, that with coming into force of the 1998 Federal Court Rules costs became payable on an application at the discretion of the Court, without any need for special reasons. Federal Court Rule 400(2) allows costs to be awarded to or against the Crown.

[15]            Costs may be awarded following dismissal for delay on a status review. This is set out by Madam Justice Reid in Sax v. Chomyn (1999), 173 F.T.R. 318 (FCTD). In that instance counsel for the defendants pointed out that the defendants had conducted themselves properly, that they had incurred costs and expenses, and that there was no obligation on the defendants to prompt the plaintiff along in his lawsuit or to incur further expenses beyond those already incurred, to try to bring the proceeding to an end. This has a parallel in the present proceedings: the Crown tried to accommodate the Applicant, particularly during case management and also incurred substantial expense, including in trying to have the matter struck out, an exercise which probably would have been successful: the David Bull Laboratories case (supra) was a barrier to the striking out of the present application because there were no exceptional circumstances, but merely, to quote Prothonotary Tabib, from her 4 December 2003 Order, a "woefully ill-founded" application.

[16]            In Sax v. Chomyn (supra) the defendant was required to pay $1,500.00 as costs, an amount which had been placed in court as security for costs. The defendant was also awarded the costs of the motion by which the defendants sought costs. In the present instance the Crown will have its costs.

[17]            I see no point in prolonging the proceedings with a taxation of costs. Instead the Crown will have its costs in a lump sum, based upon a somewhat rough and ready reckoning under Tariff B, for preparation and filing of records and materials, for preparation and for attendance on case management conferences and for the present useful status review submission, being 14 units at $110.00 per unit: in round figure costs payable forthwith by the Applicant to the Crown are $1,500.00.

(Sgd.) "John A. Hargrave"

                                                                                          Prothonotary

Vancouver, British Columbia

21 October 2004

                                                             FEDERAL COURT

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                         T-1533-02

STYLE OF CAUSE:                       Ka-Nee-Ka-Neet (Lawrence Agecoutay) v. Her Majesty the Queen in Right of Canada et al.

REASONS FOR ORDER BY:     Hargrave P.

DATED:                                           21 October 2004

WRITTEN REPRESENTATIONS BY:                            

                                      

SOLICITORS OF RECORD: