Date: 20040413
Docket: T-762-03
Citation: 2004 FC 556
BETWEEN:
AMANDA DAY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
[1] The Applicant, who acts for herself, commenced this judicial review application, in which she alleges sexual discrimination, sexual assault and sexual harassment, on 12 May 2003.
[2] The Attorney General, the named Respondent, but certainly not the appropriate Respondent, filed an appearance in a timely manner. Subsequently the Applicant overlooked the requirement that her Rule 306 affidavit material was due on 11 June 2003. Crown counsel, on 19 June 2003, as a matter of comity, as a gesture of courtesy and accommodation between the parties and as provided for in Rule 7, extended to an offer of a 15 day extension of time. There being some difficulties with regular communication channels, the offer of the extension was served on Ms. Day on 20 June 2003. Ms. Day sets out in her affidavit in support of the present motion that "I did not read the document sent to me by the Respondent since I was under the impression that they were the usual unsatisfactory offers of settlement" (paragraph 16). On another occasion, the affidavit evidence of one of the process servers establishes that he handed documents to Ms. Day personally, that she took them inside her residence and shut the door: thereafter she opened the door, swore at the process server and threw the documents on the ground.
[3] A party to an action generally and Ms. Day in particular, ignores such accommodation and the offer of a time extension at their own peril. The Applicant has also ignored offers of procedural assistance or guidance from counsel for the Respondent, who advised Ms. Day that counsel for Mr. Hortie, the proper but still unnamed Respondent, had offered to accept service. Indeed, Ms. Day subsequently advised the Court, on 10 February 2004, that she was not prepared to serve Mr. Hortie with the Notice of Application.
[4] It is against this background that the Applicant now brings a motion, some nine months late, for an extension of time within which to file her affidavit material. Such a delay, a failure to extend common courtesy to counsel on the other side and non-compliance with the Rules are not favourable in themselves, even in the case of a lay litigant. As put by Madam Justice of Appeal Sharlow, in Bernier v. Minister of Human Resources Development, unreported February 5, 2004 reasons in docket A-382-03, 2004 F.C.A. 58 at paragraph 7:
All litigants have an obligation to comply with the Rules, even if they are not represented by a lawyer. However, a failure to comply with the Rules need not be fatal if there is a reasonable and a bona fide attempt to cure the failure, especially if the failure can be cured relatively easily and the other party has not suffered any substantial prejudice.
While Bernier involved a similar time extension, Madam Justice Sharlow's guideline is not an all-inclusive test for obtaining relief in the nature of a time extension. This motion by the Applicant is denied because her affidavit material, which seems to be in part an argument of her case and in part a rant against many individuals, does not deal with two pertinent issues: first, the material does not establish a valid reason to justify the delay in filing the Rule 306 affidavit material and second, the Applicant does not establish the intrinsic worth of the affidavit material she seeks to file: see for example Schwartz Hospitality Group Ltd. v. Canada (Attorney General) (2002) 222 F.T.R. 74, upheld 11 September 2002, 2002 F.C.T. 961, docket T-137-02.
[5] To elaborate on this test, the excuse put forward to explain the delay must be a valid one. The intrinsic worth of the affidavit is determined by examining it for relevance, admissibility and the potential use of the proposed affidavit evidence to the Court. Moreover, with some well established exceptions, only the evidence before the tribunal, whose decision is being challenged, is admissible in a judicial review proceeding. Therefore, an applicant who wishes to introduce extrinsic evidence, into a judicial review proceeding, by way of affidavit evidence, must establish the admissibility and relevance of the evidence, in relation to the proposed grounds of the review, before it will be considered permissible evidence: see Schwartz (supra) at page 76 and AOV Adults Only Video Ltd. v. Manitoba (Labour Board) an unreported 9 June 2003 decision of the Manitoba Court of Appeal, [2003] M.B.C.A. 81 at paragraph 24. Indeed, so that this testing of the affidavit may be properly carried out, that is a determination of the intrinsic worth and the likely value or use of the affidavit to the Court and the relevancy and the admissibility assessed, it is appropriate to file the intended affidavit material along with the motion material for, as the Court of Appeal pointed out in Prouvost SA v. Munsingwear Inc. (1992) 141 N.R. 241, at 250, the Court, on an application to file affidavit material, will not issue a blank cheque which would allow affidavit material at large.
[6] Turning to the application of this, to the present motion for the time extension, I deal first with delay. Here the obligation or onus is on the Applicant to provide a reasonable valid excuse. There is nothing in the Applicant's written argument dealing with delay. Nor is there any rational and uncontradictory statement justifying or excusing the delay set out in her affidavit material. To begin, between the commencement of this judicial review proceeding and the end of summer in 2003 Ms. Day sets out that she was unaware of communications from the Respondent, as to filing her affidavit material before the end of summer 2003, because she did not read material sent to her by the Respondent. That is not a reasonable response from an Applicant who has the obligation to pursue her case with reasonable diligence.
[7] Second, Ms. Day sets out in her affidavit material that she ignored the Respondent's requests that she prepare and serve her affidavit material, before the end of summer 2003, because she could ignore such communications in that they constituted "Advice, or coercion from the respondent", which she would not accept (paragraph 19 of the affidavit in support) and that she "... should not be expected to take orders or directions of any kind from a respondent who has repeatedly engaged in behaviour like what I have already described ..." (paragraph 20): here the Applicant confuses the roles of counsel for the Respondent who clearly, in her correspondence, has tried to be helpful; of the Attorney General of Canada, who has been named as a party but is not a proper party; and of Mr. Hortie, who is not a party, but whose counsel did signal that he was prepared to assist by accepting service of the originating document, the application for judicial review. None of this, so far, constitutes a valid excuse for the delay.
[8] The Applicant's affidavit material clearly confirms that Ms. Day, knowingly and deliberately, disregarded the timelines set out in the Federal Court Rules for the filing of the affidavit material between late summer 2003 and February 2004. She disregarded this procedure notwithstanding letters from the Respondent and notwithstanding her acknowledgement, at paragraph 23 of her affidavit, that by the end of the summer in 2003 she realized that she might have exceeded the time constraints for filing material.
[9] Finally and still dealing with the reason for the delay, Ms. Day complains that the Federal Court has not advised her in writing of the applicable time constraints and that she decided there was nothing she could do and indeed that it was sensible for her to await instructions from a case manager, there referring to the Respondent's 4 September 2003 motion in writing that a manager be appointed. This leads to two points. The first point is that there is nothing in the Rules which provides that a proceeding, in any way, comes to a halt merely because one of the parties wishes case management. That the Attorney General's counsel sought case management, against a background of delay by and failure of reasonable cooperation from the Applicant, made it all the more imperative that the Applicant find out what needed to be done and get on with it. Here I would adopt a passage from the written argument of counsel for the Respondent, referring to the unilateral decision to down tools until the case management application had run its course and indeed, until after the first case management conference:
Ms. Day seeks to justify her failure to proceed with her application in late summer of 2003 despite the fact that she was aware she was out of time and had started preparing her application for an extension of time on the basis that she considered it "sensible" to await instructions from a case manager if one were to be appointed.
This unilateral decision to await possible instructions if a case manager were to be appointed does not excuse Ms. Day's failure to get on with the task of preparing her affidavit evidence and making an application for the late filing of her affidavit. The onus is on Ms. Day to get on with her application without delay. An applicant is not entitled to down tools and wait the resolution of the respondent's application for the appointment of a case manager before fulfilling these obligations.
The second point is that it is not the role of the Court to advise each litigant either how her or his case ought to be pursued, or of pending time limits: a litigant may either consult the Federal Court Rules, which are readily available from the Vancouver Registry, or make inquiry of one of the registrars, who would be able to refer a litigant to the appropriate Rule. Still dealing with the second point, it is not the role of a case manager to explain the case of a party to that party, for such an approach could represent a bias against the other side. Rather, it is for the case manager to assist the parties either in resolving the litigation at an early stage, or in making the case ready for a hearing or for a trial as quickly and as economically as is reasonably possible, so it may come to a just conclusion.
[10] The Applicant has not provided a valid excuse for the whole of the delay of some nine months, nor more than a very cursory and disjointed explanation for various segments of the delay, her affidavit material being contradictory: for example, at one point the Applicant affirms that she had not read any of the material delivered to her or served upon her by counsel for the Respondent during the summer of 2003, yet she also affirms that by the end of the summer of 2003 she was aware that she might have exceeded the time constraints set out in the Rules. From a point of a view of explaining the delay the affidavit material is completely unsatisfactory. Nor is it an excuse for delay that the Applicant relied upon the Court to keep her on schedule, or intended to rely upon possible future case management.
[11] Turning to the intrinsic worth of the intended affidavit, I have no means of making that measurement. I have carefully read the affidavit in support of this motion, to see if it might assist. However it alternates between being argumentative, setting out disjointed parts of what her case may be about and making complaints, adequately rebutted in the material filed by the Respondent, about the current activities of the Respondent, of Mr. Hortie, and of counsel for the Respondent. There is nothing in the material filed by the Applicant which bears on what might be in her Rule 306 affidavit material, or even on the need for such material.
[12] In reaching the conclusion that this motion for the late filing of affidavit material ought to be denied, I have kept in mind both that the Applicant acts for herself and that the Court of Appeal in Bernier (supra) teaches that where there has been a bona fide attempt to cure a breach of the Federal Court Rules, relief should be granted so long as the other side does not as a result suffer prejudice. That Ms. Day acts for herself is no excuse for missing time deadlines, or for ignoring procedure, or for ignoring the helpful overtures of counsel for the Respondent. I have tried to give the Applicant the benefit of any doubt, however her material contains nothing upon which to found relief by way of a time extension. Indeed, the whole procedure, from the point of view of the Applicant, has been conducted in such a deliberately dilatory and contradictory manner that one might come to the conclusion that the Applicant is indifferent about proceeding toward a result in this litigation, but rather is using the litigation for her own ends and in doing so is abusing the process of the Court. However it is not by reason of this observation that I deny the application for the time extension. In considering the point made by Madam Justice of Appeal Sharlow, in the Bernier case, I have several difficulties: first, there has been no bona fide attempt to cure the failure of timely filing of affidavit material; second, the failure cannot be easily cured because there is no base upon which to found relief; and third, to allow a groundless time extension would result in prejudice, for all litigants are entitled to and should expect a proper and even handed application of the Rules. In the result the application for the extension of time within which to late file unspecified affidavit material is denied because of unexplained delay and an absence of any means by which to measure the intrinsic worth of such affidavit material.
[13] Counsel for the Respondent seeks, in her motion material, to have the matter set down for a status review. Given that this matter is presently case managed, that is a discretion open to the case management judge or prothonotary pursuant to Rule 385(2). At this point I am not convinced that the formality of a status review, in mid stream, is warranted. However I have asked one of the case management registrars to set a further case management conference. At that time it will be for the Applicant to explain how she intends to move this matter along, in a timely manner and for the parties, in conjunction with a case manager, to work out a schedule.
[14] The costs of this motion, mid-range in Column III, to be paid by the Applicant to the Attorney General of Canada at the earlier of either the conclusion of this judicial review procedure or at such time as the Attorney General of Canada ceases to be a party.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-762-03
STYLE OF CAUSE: AMANDA DAY v. ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Mr. John A. Hargrave, Prothonotary
DATED: April 13, 2004
WRITTEN REPRESENTATIONS BY:
|
Ms. Amanda Day On her own behalf |
FOR THE APPLICANT |
|
Ms. Joyce Thayer
|
FOR THE RESPONDENT |
SOLICITOR OF RECORD: