Date: 20030417
Docket: T-2148-01
Citation: 2003 FCT 457
OTTAWA, ONTARIO, THIS 17th DAY OF APRIL, 2003
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
DR. PUSHPALA NARSIMHALU and
MRS. LALITHA NARSIMHALU
Plaintiffs
- and -
AIR CANADA and
SINGAPORE AIRLINES LTD.
Defendants
REASONS FOR ORDER AND ORDER
[1] A notice of status review, pursuant to Rules 380 and 381 of the Federal Court Rules, 1998 (the "Rules"), was issued herein on February 24, 2003.
[2] In response thereto, a letter dated February 28, 2003 signed by Badrul H. Chishti on behalf of Zia H. Chishti, solicitor for the plaintiffs, indicates that the latter is out of the country until April 8, 2003 and requests that an extension of time be granted to April 25, 2003 "to file all the necessary documents". Apparently, the plaintiffs' solicitor went to Pakistan in November 2002 because of health reason. It is explained that since he is a sole practitioner, there is nobody to file a requisition for a pre-trial conference.
[3] The defendants oppose the request for an extension of time and ask this Court to dismiss the action for delay pursuant to Rule 382(2)(a) of the Rules which reads as follows:
| 382.(2) At a status review, the Court may
(a) require a plaintiff, applicant or appellant to show cause why the proceeding should not be dismissed for delay and, if it is not satisfied that the proceeding should continue, dismiss the proceeding;
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382.(2) À l'examen de l'état de l'instance, la Cour peut :
a) exiger que le demandeur ou l'appelant donne les raisons pour lesquelles l'instance ne doit pas être rejetée pour cause de retard et, si elle n'est pas convaincue que l'instance doit être poursuivie, rejeter celle-ci;
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[4] In exercising the wide discretion granted by Rule 382, the Court should be concerned with two questions: do the reasons why the case has not moved forward justify the delay, and what is the nature of the measures the party proposes to take to move the case forward? Therefore, the Court must address both the reasons for delay and the plan for moving the matter forward on a status review. Declarations of intent and desire to proceed are not enough. The plaintiff is responsible for carriage of the case and the plaintiff bears the onus of explaining the delay in prosecuting the action. The party's written submissions are given significant weight and the delaying party must present the Court with concrete and positive steps to advance the case. See Baroud v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 91 (T.D.); Grenier v. Canada, [2001] F.C.J. No. 147 (F.C.A.); Bell v. Bell Estate (2000), 187 F.T.R. 64 (Proth.); and Importations Alimentaires Stella Inc. v. National Cheese Co. (2000), 2000 CarswellNat 2676, 273 N.R. 392, 10 C.P.R. (4th) 392 (F.C.A.).
[5] I note that in Kalevar v. Liberal Party of Canada (2001), 2001 CarswellNat 2640, 2001 FCT 1261, the applicant in his status review submissions did not undertake to file a notice of requisition for hearing but rather requested unspecified delays. The Associate Senior Prothonotary dismissed the applicant's judicial review application for delay. Since he was not predisposed to excuse inactivity because the party responsible for carriage of the action had been out of Canada for a significant period of time, Lemieux J., who heard the appeal, in the exercise of his discretion de novo, concluded that the applicant had failed on both prongs of the test mentioned above. In my view, the same reasoning should prevail in the present case.
[6] In the case at bar, the plaintiffs filed a statement of claim on December 6, 2001. The defendant, Singapore Airlines Ltd., filed a statement of defence on January 14, 2002 and an amended statement of defence on January 23, 2002. Neither of the defendants have had any communication whatsoever with the plaintiffs since the date the statement of claim was filed. The plaintiffs' solicitor has not taken any steps to move this matter forward prior to leaving the country. Plaintiffs' counsel has been informed of the situation and has chosen not to act. The request, dated February 28, 2003, for an extension to April 25, 2003 is a further delay without any indication of a plan to move forward. Neither of the defendants have consented to an extension of time to file a response to the notice of status review. To date, the plaintiffs have not filed any further documentation with the Court nor have they requested a pre-trial conference. Since the announced return to Canada of the plaintiffs' counsel, no steps have been taken by him to regularize the situation. The request for an extension of time does not comply with the Rules, is not substantiated by an affidavit and fails to satisfy the requirements established by the jurisprudence of this Court. Accordingly, I am not satisfied that this action should continue.
ORDER
IT IS ORDERED that the above action be dismissed for delay.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2148-01
STYLE OF CAUSE: DR. PUSHPALA NARSIMHALU AND OTHERS
v. AIR CANADA AND OTHERS
MATTER DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: APRIL 17, 2003
APPEARANCES:
ZIA H. CHISHTI FOR PLAINTIFFS
ROBERT I.S. MACGREGOR FOR DEFENDANT - AIR CANADA
BRUCE M. GORDON FOR DEFENDANT -
SINGAPORE AIRLINES LTD.
SOLICITORS OF RECORD:
ZIA H. CHISHTI FOR PLAINTIFFS
Charlottetown, PEI
PATTERSON PALMER FOR DEFENDANT - AIR
Charlottetown, PEI CANADA
BRUCE M. GORDON FOR DEFENDANT -
Vancouver, B.C. SINGAPORE AIRLINES LTD.