Date:20010207
Docket: T-1140-99
Neutral Citation: 2001 FCT 36
BETWEEN:
Edmond Joseph Commando, Norm Lefebvre, Melanie Lefebvre, Kevin Lefebvre, Harvey Lefebvre, Ken Derasp, Kevin Derasp, Rebecca Derasp, Fern Commando, Ed Commando, Rodney Judge, Wendy Polaniec, Dawn Mckenzie, Ian Mckenzie, Jeannie Lazure, Agnes Naveau and William Naveau and Melissa Lazure and Matthew Lazure, infants under the age of eighteen years, by their Litigation Guardian Jeannie Lazure, and Aaron Naveau, an infant under the age of eighteen years, by his Litigation Guardian Agnes Naveau
Plaintiffs
- and -
Mattagami First Nation Band Council
Defendant
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] The Plaintiffs are a group of individuals who claim that, at all material times, they were members of the Mattagami First Nation. Pursuant to a Statement of Claim issued out of this Court on June 18, 1999, the Plaintiffs advance a claim of $4,000,000.00 for general damages against the Defendant, Mattagami First Nation Band Council (the "Defendant").
[2] The Defendant has filed a Notice of Motion seeking the following relief:
| 1. An order granting partial or full summary judgment in this action; |
| 2. An order converting all or part of this action into an application for judicial review; |
| 3. An order dismissing such an application for judicial review as being out of time; |
| 4. In the alternative, an order requiring further particulars or clarifications of the Statement of Claim; |
| 5. In the alternative, an extension of time to file a Statement of Defence; |
| 6. The costs of this motion. |
[3] The Notice of Motion is dated October 28, 1999 but for various delays, did not come on for hearing until January 15, 2001.
[4] One of the factors contributing to a delay in the hearing of this Notice of Motion was the request by the former solicitor for the Plaintiffs, Mr. Mark S. Ansara and the firm of Girones & Associates, to be removed as solicitors of record for the Plaintiffs. This application, presented by way of Notice of Motion in writing, was dealt with by Prothonotary Aronovitch who issued an Order on November 16, 2000, pursuant to Rule 125 of the Federal Court Rules, 1998. That rule requires service of the Order upon the concerned parties. On December 4, 2000, former counsel for the Plaintiffs submitted an Affidavit of Service to the Federal Court Registry in Toronto, confirming service of the Order dated November 15, 2000 upon all parties by first class mail.
[5] The matter came on for hearing on December 11 when a further postponement was granted by direction of the Court, directing service of the Order made on that day upon the Plaintiffs. The matter was set over for hearing until January 15, 2001. The Order made on December 11, 2000 directed counsel for the Defendant to send a copy of the said Order by registered mail to the Plaintiffs at the addresses noted in the Order of Prothonotary Aronovitch and required the Defendant to file proof of service in that regard, on or before January 15, 2001.
[6] When the matter came on for hearing on January 15, 2001 counsel for the Defendant advised the Court that he had effected service of the December 11, 2000 Order by means of registered mail and that some letters were returned to him. He provided the court with a copy of his letter dated December 21, 2000. He also advised that he had received telephone calls from some Plaintiffs who indicated that they were unaware of the Order made directing the removal of Mr. Ansara and his firm as solicitors of record in this matter.
[7] The Defendant, through counsel, then presented submissions concerning the relief sought in the Notice of Motion.
[8] While submissions were being made by counsel for the Defendant, a letter was sent by facsimile to the Federal Court Registry in Toronto from Rebecca Derasp, one of the Plaintiffs in this action. The letter states as follows:
| Dear Sir or Madam Honorable Judge, |
| Re: Docket: no # T-1140-99 and Registered Letter dated December 21, 2000. Please find enclosed in fax, We did not receive registered letters due to the Christmas season til January 2, 2001. Due to the time of year, with a lot of the offices closed till January 8, 2001, We were not able to notify everyone concerned and retain proper legal counsel. We would like to ask for a one month extension, to speak to new legal council, and rectify this situation at hand. We apologize for the inconvenience and will have a new council at the earliest possible date, to contact your office and that of Mr. Townshend. |
[9] According to the information at the top of this letter, it was sent at approximately 10:57 a.m. on Monday, January 15, 2001.
[10] The letter came to the attention of the Court in mid-afternoon.
[11] Receipt of this letter raises a procedural concern when considered in light of the advice tendered by counsel for the Defendant that he had received some oral communication from one or more Plaintiffs to the effect that they were unaware of the application made by their former solicitor for leave to withdraw as their solicitor of record.
[12] While it is obvious that the Plaintiffs left matters to the last minute, both concerning their communications with the Registry and the lack of detail about their efforts to retain new counsel, I am concerned about the potential unfairness of proceeding with a decision on the Defendant's motion in light of this communication from one Plaintiff, apparently speaking on behalf of a number of Plaintiffs.
[13] The fair resolution of this problem, in my opinion, would be to delay the issuance of an order on the Defendant's Notice of Motion, in order to allow the Plaintiffs to appoint new counsel and to instruct such counsel to appear and respond to the Defendant's motion. However, fairness to the Defendant requires that such postponement will be granted only upon terms.
[14] Those terms will be an Order for costs in the amount of $1,500.00 payable forthwith to the Defendant and the matter is set over until April 5, 2001 returnable before me. A copy of this Order will be served by the Registry of the Court, by registered mail, upon the Plaintiffs at the addresses relied upon by counsel for the Defendant in sending out his letter dated December 21, 2000.
[15] The Plaintiff shall provide proof of payment of the costs to the Registry of the Federal Court in Toronto, Canada Life Building, 7th Floor, 330 University Avenue. Such proof of payment is to be provided to the Registry no later than March 30, 2001.
[16] There will be no further postponements in this matter. Counsel appointed by the Plaintiffs shall be ready to proceed upon the hearing of this matter on April 5. If the Plaintiffs are not prepared to proceed on April 5 with their arguments, an Order will issue in relation to the submissions made by the Defendant and the Defendant is at liberty to present further argument at that time, if it chooses.
[17] The foregoing decision is based upon a balancing of the interests of the respective parties. There is a real prospect of mischief and unfairness to the Plaintiffs in the event that they were not properly advised of the Order issued following the motion made by Mr. Ansara to be removed from the Record. That potential mischief outweighs, in my opinion, the undoubted inconvenience to the Defendant in having to wait for a ruling on its motion. However, the disposition of the motion lies either in the dismissal of the action or its continuation. In the prevailing circumstances the most that can be said about the Defendant's position is that it is still in a position of uncertainty. That is an inconvenience but to some degree, that can be addressed by the foregoing award of costs.
[18] The motion is adjourned until April 5, 2001.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
February 7, 2001