Date: 20011207
Docket: T-59-01
Neutral citation: 2001 FCT 1348
BETWEEN:
JEAN-GUY SAVARD
Applicant
and
HER MAJESTY THE QUEEN
Respondent
[1] This is a motion by the applicant appealing the order of prothonotary Richard Morneau dated October 23, 2001, under Rules 51 and 369 of the Federal Court Rules, 1998.
[2] The decision of prothonotary Richard Morneau reads as follows:
[TRANSLATION]
Motion by the applicant for an order excluding a pre-trial conference memorandum against the respondent for failure to comply with Rules 7(1), 7(2), 259, 262, 359 and 369 of the Federal Court Rules, 1998.
ORDER
Motion dismissed, costs in the cause.
[3] Since this is an appeal of a decision of the prothonotary, the Court believes it worth recalling the decision in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, at page 454:
I am of the opinion that such orders ought to be disturbed on appeal only where it has been made to appear that
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case.
In each of these classes of cases, the Motions Judge will not be bound by the opinion of the prothonotary; but will hear the matter de novo and exercise his or her own discretion.
[4] The Court must be guided by this decision when hearing an application to review a prothonotary's decision.
[5] I have no hesitation in immediately excluding paragraph (b) since that question cannot in any event have a determining influence on the disposition of the issues; be vital to the final issue of the case under any circumstances; it remains to be determined whether the prothonotary's decision in this case was clearly wrong in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts.
[6] In this case, after reviewing all of the documents in the record, the prothonotary was not required to determine whether there was an error in the notice of pre-trial conference of August 28, 2001, issued by Jean-Pierre Poggi, registry officer.
[7] The prothonotary had to determine whether a motion to exclude a pre-trial conference memorandum against the respondent for failure to comply with certain rules should be allowed.
[8] Based on the documents filed by both parties, it seems clear that there is contradictory evidence concerning the decision made by the registrar to set a date for the pre-trial conference; on that point, it is common for some hearings, either in person or by phone, to be postponed for a variety of reasons.
[9] It seems that the facts introduced by the applicant and the respondent's reply were all submitted to the prothonotary, and he decided to dismiss the motion.
[10] The Court must first point out that the applicant was not ordered to pay costs given that the costs on that motion, as stated by the prothonotary, were "in the cause," which means that the party who eventually succeeds could be awarded the costs of that motion.
[11] Furthermore, despite carefully examining the documents submitted by the applicant, I was unable to see how the applicant would be prejudiced by the fact that the pre-trial conference would be delayed by a few weeks. Also, the effect of hearing this motion appealing the prothonotary's decision will be to delay the date of the pre-trial conference even further and incidentally the hearing that will follow.
[12] I should also point out to the applicant that he failed to establish how the prothonotary erred in exercising his discretion or even identify what wrong principle was applied or which facts were misapprehended.
[13] I can understand that the applicant feels some frustration about the possibility of the pre-trial conference being delayed, but he has failed to satisfy me that the registry officer acted in bad faith or that the respondent did anything improper.
[14] I must also point out to the applicant that his accusations of collusion between the respondent and the registry officers are completely unfounded and completely unwarranted in the circumstances.
[15] I have no hesitation in concluding that the applicant has failed to establish that the prothonotary's decision should be set aside.
O R D E R
[16] THE COURT ORDERS THAT the motion appealing the order of prothonotary Richard Morneau be dismissed.
[17] Costs in the cause.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 7, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
COURT FILE NO.: T-59-01
STYLE OF CAUSE: JEAN-GUY SAVARD v. HER MAJESTY THE QUEEN
WRITTEN MOTION EXAMINED WITHOUT PERSONAL APPEARANCE
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATED: December 7, 2001
APPEARANCES:
JEAN-GUY SAVARD THE APPLICANT REPRESENTING HIMSELF
DOMINIQUE GUIMOND FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEAN-GUY SAVARD THE APPLICANT
Sainte-Anne-des-Plaines, Quebec REPRESENTING HIMSELF
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General
of Canada