2023 FC, 2023 FC 1528

Date: 20231117 Docket: T-533-20 Citation: 2023 FC 1528 Ottawa, Ontario, November 17, 2023 PRESENT: The Honourable Madam Justice Tsimberis BETWEEN: NORMAN CHAMBERS Plaintiff and HIS MAJESTY THE KING IN RIGHT OF CANADA Defendant ORDER AND REASONS I. Overview [ 1 ] This is an appeal by the Plaintiff from the Order of Associate Judge Molgat dated June 6, 2023, the case management judge, dismissing the within action for delay.

The appeal is taken pursuant to Rule 51 of the Federal Courts Rules , SOR/98/106 . [ 2 ] The Plaintiff also seeks an extension of time to bring the Rule 51 appeal, not having done so within the 10-day period provided for at Rule 51(2) of the Federal Courts Rules . [ 3 ] As explained below, the Plaintiff’s appeal and motion seeking an extension to time to bring the Rule 51 appeal are dismissed. The Plaintiff has failed to demonstrate any reviewable error on the part of the Associate Judge in dismissing the action for delay. II.

Background [ 4 ] The Plaintiff brought a claim against the Defendant, alleging that nursing staff of the Correctional Service of Canada (CSC) gave him the wrong medication causing physical and mental injury on May 6, 2020. [ 5 ] On April 6, 2023, an Interim Notice of Status Review was issued by Associate Judge Molgat.

The Interim Notice of Status Review provides as follows: THE PLAINTIFF HAVING FAILED TO COMPLY with the Order dated November 9, 2022 upon which he was required to serve and file his Pre-Trial Conference Requisition and Memorandum by no later than March 24, 2023; THE PLAINTIFF IS REQUIRED TO SERVE AND FILE, by no later than April 20, 2023, representations stating the reasons why the proceeding should not be dismissed for delay.

The representations shall include a justification for the delay and a proposed timetable for the completion of the steps necessary to advance the proceeding in an expeditious manner; THE DEFENDANT MAY SERVE AND FILE representations within seven (7) days after being served with the representations of the Plaintiff.

THE PLAINTIFF MAY SERVE AND FILE a reply within four (4) days after being served with the representations of the Defendant. [ 6 ] By the Court’s deadline of April 20, 2023, the Plaintiff did not file any written representations in response to the Interim Notice of Status Review, any justification for its delay, any reasons why the proceeding should not be dismissed for delay, or any proposed timetable for the completion of the steps necessary to advance the proceeding in an expeditious manner. [ 7 ] On May 5, 2023, 15 days after the expiry of its deadline to reply to the Interim Notice of Status Review, Plaintiff’s counsel filed a letter with the Court advising that he has been in contact with his client.

This letter sought the Court’s patience in permitting him to provide to the Defendant the information arising from written discoveries and other matters, advising that he expects to incorporate the clarification information in a letter addressed to the Defendant the next week and stating that “(d)epending on the results of the Parties discussions, we should be able to proceed in the very near future.” [ 8 ] On May 8, 2023, Associate Judge Molgat issued the following Direction: “The Plaintiff’s letter dated May 5, 2023 has been referred to the Court in accordance with Rule 72.

If this letter is intended to be the Plaintiff’s written representations in response to the Interim Notice of Status Review issued on April 6, 2023, it is vague, nonresponsive, and out of time. The Defendant shall, by no later than May 15, 2023, provide its position with respect to the Plaintiff’s letter.” [ 9 ] On May 11, 2023, in response to the Court’s Direction of May 8, 2023, the Defendant’s counsel filed a letter with the Court outlining the steps taken since the Court’s Direction of November 9, 2023, specifying that it required responses from the Plaintiff to its

clarification questions, and requesting that the Plaintiff be required within one week to provide an adequate response to the Interim Notice of Status Review and to provide a proposed timeline for next steps with specific dates. [ 10 ] On May 12, 2023, the Plaintiff’s counsel filed a letter with the Court, which states: Further to my letter of May 5, I am now in possession of the information that my client and I have been able to provide in response to the Defendant’s letter. I am prepared to provide this if and when the court directs.

As to the timing of my reply, I can only say that, in addition to being out of the country for two weeks, I have had difficulty explaining what was required to my client and ensuring he was able to respond in an informed fashion. III. Order subject to Appeal [ 11 ] On June 6, 2023, Associate Judge Molgat issued an Order dismissing the Plaintiff’s action. The

preamble of the Order provides as follows: UPO N t h e Interi m Not i ce o f St a tus Rev i e w date d A pri l 6, 2023 , requ i r in g t h e P l a in tiff to serve a n d fi l e, by n o l ater t h a n A pr il 20, 2023 , represe n tat i on s stat in g t h e reasons wh y the proceedi n g shou l d n ot b e d i sm i ssed f o r de l a y , a n d to prov i de a j usti f icat i o n f or t h e de l a y as well as a pro p osed ti m etable f or co m plet i o n o f t h e steps n ecessar y to adva n ce t h e proceedi n g in an e x ped i t i ous m an n er in t h e e v e n t the proceedi n g i s a l l owed to conti n ue; AND UPO N t h e P l a in t i f f h av i ng f ai l ed to res p o n d to the Interi m Not i ce o f St a tus Rev i ew in a t im el y m anner or s oug h t a n e x te n s i o n o f ti m e to d o s o; CONSIDERIN G t h e P l a in tif f ’s l etter d a ted May 5, 2023, t h e Court ’ s D i rect i o n dated M a y 8, 2023 , a n d t h e D e f e n da n t’ s l ette r d a ted M a y 1 1, 2 0 23; CONSIDERIN G t h at a n Interi m Not i ce o f St a tu s Rev i ew wa s prev i ousl y i ssued i n this proceed i n g o n August 17, 2022; CONSIDERING t h e Orders date d Se p te m b er 29, 2022, O c to b er 4, 202 2 , a n d No v e mb e r 9 , 2022; CONSIDERING t h at proceedi n gs shou l d only b e dismissed o n status rev i ew in e x cept i ona l c i rcu m stances a n d where n o ot h er rem e d y wou l d suffi c e, a n d t h at, g iv e n t h e dracon i an ef f ect o f d i smiss i ng a c l ai m f or de l a y , t h e f ocus shou l d b e o n t h e o v era l l in terests o f j ust i c e a n d t h at t h e o v erarching co n cer n i s w h et h er t h e de f au l t i ng P l a in t i ff recogni z es hi s respons i bil i t y to m o v e t h e act i o n f orward a n d h as u n dertake n to do so : Roots v.

HMCS Annapolis ( S hip) , 201 5 FC 1339 ; CONSIDERIN G t h a t th i s i s n ot t h e f i rst t i m e t h e Pla i n t i f f has fa i l ed to c o m pl y w i t h an Order or D i rect i o n o f t h e Court ; t h at t h e P l ai n tiff h as shown a co n ti n ued pattern o f i g n ori n g his responsibil i t y to m o v e t h e act i o n f orward, as we ll as d i sregard f or t h e case m a n agement proces s ; CONSIDERIN G t h at t h e Cour t i s satisfied, i n the circum s tances o f this case, that dismi s sal o f t h e act i o n i s warranted and t h at no ot h er re m edy wou l d suff i ce; AN D CONSIDERIN G t h at i n t h e e x erc i s e o f m y d i scret i o n , I f i nd t h at t h e act i o n s h ou l d b e d i smissed; [ 12 ] An entry on the Index of Recorded Entries (the “Index”) shows an acknowledgment of receipt of the Order was received from all parties on June 6, 2023.

IV. Standard of Review [ 13 ] In disposing of a response to a Notice of Status Review, an associate judge is making a discretionary decision. Rule 382.1(2) of the Federal Courts Rules provides as follows:

(2) Review by the Court - A judge or prothonotary shall conduct a status review and may (

a) if he or she is not satisfied that the proceeding should continue, dismiss the proceeding; or (

b) if she or she is satisfied that the proceeding should continue, order that it continue as a specially managed proceeding and may make an order under rule 385. [ 14 ] The Order of Associate Judge Molgat is a discretionary order, reviewable upon the standard set out by the Federal Court of Appeal in Hospira Healthcare Corporation v.

Kennedy Institute of Rheumatology, 2016 FCA 215 , [2017] 1 FCR 331 [ Hospira ]. [ 15 ] In Hospira , the Federal Court of Appeal said that reviewing courts should only intervene in the discretionary decision of a prothonotary, now an associate judge, where the prothonotary made an error of law or has exercised his or her discretion on wrong principles, or where they have misapprehended the facts/evidence such that there is a palpable and overriding error. The reviewing court is thus to apply the standard of review applicable to decisions of trial judges, as set out by the Supreme Court of Canada in Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235.

V. Analysis [16] In its motion record to overturn the Order of Associate Judge Molgat rendered on June 6, 2023, the Plaintiff alleges that “theHonourable Associate Judge erred in fact and law in deciding to dismiss the Action” but does not point to any particular errors of law orfact in the Order of Associate Judge Molgat or identify in what way she exercised her discretion on wrong principles. [17] The Plaintiff acknowledges that its May 5, 2023 letter was sent after the deadline set out in the Court’s Interim Notice of StatusReview.

The Associate Judge did not err in concluding that the Plaintiff failed to respond to the Interim Notice of Status Review in atimely manner and failed to seek an extension of time to do so. [18] The Plaintiff also acknowledges that its letter dated May 5, 2023 was unclear as to the issue that was delaying the progress of thecase, which is the first of two questions it was required to answer on status review: (1) is there is a justification for the failure to movethe matter forward, and (2) what measures does the party propose to take to move the matter forward (Dhillon v Bernier, 2019 FC 1194at para 18 [Dhillon], citing Baroud v R., (FC), [1998] F.C.J.

No. 1729). Failure to properly address these two criteriaat a status review may result in the dismissal of the party’s proceeding (Dhillon, at para 19). [19] For the first time in its Motion Record on appeal before me, the Plaintiff sets out that what it considers an appropriate justificationfor the delay in filing its pre-trial conference requisition and memorandum by the Court’s deadline.

The Plaintiff’s new justification forthe delay was that it was taking “definite and considered measures to ensure his client was meeting his obligations with respect todiscovery answers, on which the Defendant was seeking clarification”, which needed to be resolved before it could proceed with the pre-trial conference steps.

The Plaintiff did not provide these explanations or any explanation for its delay for that matter to the AssociateJudge and cannot do so now on appeal. [20] In addition, the affidavit supporting the Plaintiff’s motion contains an affirmation that “in the course of the above events, Plaintiffhas moved from Ontario to British Columbia on his release from custody and there was difficulty establishing contact with him.” Inresponse, the Defendant in this appeal has filed its own affidavit showing that the move from Ontario to BC in question occurred over ayear prior to this Court’s order dated October 8, 2021 ordering that this action be specially managed.

This evidence and assertedexplanation for the delay was not before Associate Judge Molgat. Also, this Court has previously determined that new evidence is notpermitted in a Rule 51 motion (see Alam v Canada (Attorney General), 2022 FC 833 at paras 26-27). [21] During the hearing of this motion, the Plaintiff’s counsel pointed out what he considered a palpable and overriding error in thatAssociate Judge Molgat failed to consider and did not mention the Plaintiff’s letter dated May 12, 2023 in her Order under appeal.

Plaintiff’s counsel pointed out that his May 12th letter was a fundamental aspect of what could and should have been considered in takingthe decision. If the Court had considered this letter and directed the Plaintiff to provide the clarification responses at that point, the mattercould have easily moved forward and a pre-trial conference could have been had by this time.

The Plaintiff argues this is an overriding and palpable error in that, had she considered the May 12th letter (which letter showed the Plaintiff had taken a step further and wasready to respond to the Plaintiff’s clarification questions), it would have changed things and her decision would have been different. [22] Not only is the “palpable and overriding error” standard a “highly deferential standard” (Lessard-Gauvin v Canada, 2020 FC 730 atpara 44), but the word “palpable” means an error that is obvious, whereas the word “overriding” means that the error goes to the verycore of the outcome of the case (Apotex Inc. v.

ADIR, 2020 FCA 60 at para 72).

As such, previous cases of the Federal Court have foundthat an error is only “palpable” if it is obvious and plainly seen and only “overriding” if it affects the result reached (Chowdhury vCanada, 2022 FC 1449 at para 16; Lill v Canada, 2020 FC 551 at para 24). [23] The Respondent argues that Plaintiff’s counsel’s May 12th letter only further supports the Associate Judge’s dismissal in that itcontinued to be unresponsive to the Interim Notice of Status Review as it did not provide either (1) a sufficient justification for its delay,or (2) a proposed timetable for the matter to move forward. I agree.

As such, the fact that the Associate Judge’s Order under appeal does not reference the May 12th letter could not have affected the result reached. [24] The Plaintiff argues that a great deal of progress has been made in this important matter and all that remained was to allow theclarified discovery answers to be addressed and considered by the parties and setting and holding the Pre-Trial Conference, which is aclear alternative option to dismissal.

The Plaintiff’s arguments show that it disagrees with the Associate Judge’s conclusions but does notdisclose any error in either law or fact, nor that she exercised her discretion on the wrong principles. [25] The Associate Judge was alert to, set out, and applied the correct legal principles in her analysis as to whether an action should bedismissed for delay on status review, noting that dismissal was only warranted “in exceptional circumstances and where no other remedywould suffice, and that, given the draconian effect of dismissing a claim for delay, the focus should be on the overall interests of justiceand that the overarching concern is whether the defaulting Plaintiff recognizes its responsibility to move the action forward and hasundertaken to do so”, citing Roots v.

HMCS Annapolis (Ship), 2015 FC 1339 [Roots]. [26] Associate Judge Molgat provided in her Order some of the key chronology of the action, set out the legal test, and then determineddismissal was warranted given that this was not the first time the Plaintiff had failed to comply with an Order or Direction of the Courtand that the Plaintiff had shown a continued pattern of ignoring his responsibility to move the action forward as well as a disregard forthe case management process. [27] The Court record amply shows, and the Facts

section of the Defendant’s Responding Submissions reveals, that the Associate Judgedid not err in finding repeated instances of the Plaintiff’s non-compliance with Orders and Directions of the Court, their continued patternof ignoring their responsibility to move the action forward, as well as their disregard with the case management process. When coupledwith the absence of any clear explanation by the Plaintiff for the non-compliance, these findings support Associate Judge Molgat’sdecision that dismissal of the action was warranted and no other remedy would suffice.

Despite numerous prior warnings from the Courtthat, if the Plaintiff missed peremptory deadlines, the action would be dismissed. Despite these warnings, which are on the court record,

the Plaintiff continuously missed many ordered deadlines throughout the three years this action was ongoing. [28] Associate Judge Molgat referenced the Roots case in her Order under appeal. In Roots at paragraph 29, the case management judgeindicated a party’s “repeated non-compliance with court orders and directions is indefensible and quite serious.” I agree with theRespondent that the file history supports the Plaintiff being either unwilling or unable to move the case forward. [29] I have reviewed the Order of the Associate Judge, and in particular, the reproduced

preamble paragraphs of the Order above. ThePlaintiff has not demonstrated that the Associate Judge, in concluding that dismissal of the action was appropriate, erred in a mannerwarranting intervention on appeal. [30] With regard to its motion for an extension of time to appeal the Order of Associate Judge Molgat, the Plaintiff’s counsel indicated itmissed the appeal deadline through inadvertence, having misinterpreted the Federal Courts Rules, “assumed” that the appeal was to befiled in the Federal Court of Appeal (FCA), and “filed an appeal to the Court of Appeal”.

There has been no evidence provided by thePlaintiff of any appeal filed with the FCA or any service by the Plaintiff upon the Defendant of a notice of appeal before the FCA. One ofthe factors that a Court is to consider on a motion for an extension of time is whether any reasonable explanation for the delay exists(Canada (Attorney General) v. Hennelly, (FCA) at para 3).

The Federal Court of Appeal in Hennelly at para 6 hasheld that inadvertence is an insufficient explanation of delay. [31] Another factor that a Court is to consider on a motion for an extension of time is the merit of the underlying claim (Hennelly, at para3). Having found no error warranting intervention on appeal, I find no merit in the claim. The motion for an extension of time isdismissed on that basis. VI. Conclusion [32] Both motions of the Plaintiff are dismissed. [33] The Defendant seeks costs.

In the exercise of my discretion, I am of the view that costs in the all-inclusive and fixed amount of $250are appropriate. ORDER in T-533-20 THIS COURT ORDERS that: 1. The Plaintiff’s motion for an order pursuant to Rule 51, appealing and overturning the Order of Associate Judge Molgat dated June6, 2023, is dismissed. The Defendant shall have its costs in the fixed and all-inclusive amount of $250.

"Ekaterina Tsimberis" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-533-20 STYLE OF CAUSE: NORMAN CHAMBERS v HIS MAJESTY THE KING IN RIGHT OF CANADA PLACE OF HEARING: held by videoconference DATE OF HEARING: November 15, 2023 ORDER AND reasons: TSIMBERIS J.

DATED: NOVEMBER 17, 2023 APPEARANCES : J. TODD SLOAN For The PLAINTIFF CLARE GOVER For The DEFENDANT SOLICITORS OF RECORD : J. TODD SLOAN KANATA, ONTARIO For The PLAINTIFF DEPARTMENT OF JUSTICE OTTAWA, ONTARIO FOR THE DEFENDANT