DAN YANG LIU Appellant v. MATRIKON INC., NIZAR SOMJI,, 2010 FCA 329
Opinion
Federal Court of Appeal CANADA Cour d'appel fédérale Federal Court of Appeal CANADA Cour d'appel fédérale Date: 20101202 Docket: A-452-09 Citation: 2010 FCA 329 CORAM: DAWSON J.A. LAYDEN-STEVENSON J.A. MAINVILLE J.A. BETWEEN: DAN YANG LIU Appellant and MATRIKON INC., NIZAR SOMJI, GRAHAM GOODWIN, RICK MIDDLETON, JAMES WELSH, GREG ADAMS, UNIVERSITY OF NEWCASTLE Respondents Heard at Edmonton , Alberta , on December 1, 2010. Judgment delivered at Edmonton , Alberta , on December 2, 2010. REASONS FOR JUDGMENT OF THE COURT BY: LAYDEN-STEVENSON J.A. CONCURRED IN BY: DAWSON J.A. MAINVILLE J.A. Date: 20101202
Docket: A-452-09 Citation: 2010 FCA 329 CORAM: DAWSON J.A. LAYDEN-STEVENSON J.A. MAINVILLE J.A. BETWEEN: DAN YANG LIU Appellant and MATRIKON INC., NIZAR SOMJI, GRAHAM GOODWIN, RICK MIDDLETON, JAMES WELSH, GREG ADAMS, UNIVERSITY OF NEWCASTLE Respondents REASONS FOR JUDGMENT OF THE COURT LAYDEN-STEVENSON J.A. [1] Following a status review, by order dated November 25, 2009, Prothonotary Lafrenière dismissed the appellants action fordelay. Justice deMontigny of the Federal Court (the judge) dismissed an appeal of that order. In doing so, the judge examined the matterde novo.
He concluded that the appellant failed to provide any concrete plan to move the proceeding forward in the near future, let aloneestablish his ability to do so. The appellant now appeals the judges order to this Court. [2] I am not persuaded that the judge erred in dismissing the action. The jurisprudence of this Court holds that a party in receiptof a notice of status review is required to address two questions: (1) is there a justification for the failure to move the case forward, and(2) what measures does the party propose to take to move the case forward: Netupsky v.
Canada, 2004 FCA 239; 323 N.R. 349 at para.11 citing Baroud v. Canada (Minister of Citizenship & Immigration) (1988), (FC), 160 F.T.R. 91 (T.D.) and MansonEstate v. Canada (Minister of National Revenue), 2002 FCA 357 , [2003] 1 C.T.C. 13 (F.C.A.) leave to appeal dismissed,[2002] S.C.C.A. No. 542. Since the appellant had failed to put forth any plan to move the action forward, the judge made no error indismissing the action.
Professed lack of familiarity with the requirements of the law does not operate to excuse the appellants failure toaddress the second question noted above. [3] The appellants suggestion that his
section 15 Charter rights have been violated by reason of the judges order must fail. TheCharter rights of a plaintiff who caused delay are not breached by an order dismissing his action for delay: Pal v. Canada, (FC), [1998] 4 C.T.C. 99, 136 F.T.R. 273 (T.D.) affd (FCA), [2000] 2 C.T.C. 15 (F.C.A.). [4] I would dismiss the appeal with one set of costs in favour of the five respondents represented at the hearing. Carolyn Layden-Stevenson J.A. I agree Eleanor R. Dawson J.A.
I agree Robert M. Mainville J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-452-09 (APPEAL FROM AN ORDER FROM THE HONOURABLE MR. JUSTICE DE MONTIGNY, DATED NOVEMBER 25, 2009) STYLE OF CAUSE: DAN YANG LIU v. MATRIKON INC., NIZAR SOMJI, GRAHAM GOODWIN, RICK MIDDLETON, JAMES WELSH, GREG ADAMS, UNIVERSITY OF NEWCASTLE PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: December 1, 2010 REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A. CONCURRED IN BY: DAWSON J.A. MAINVILLE J.A. DATED: December 2, 2010 APPEARANCES : Dan Yan Liu APPELLANT (ON HIS OWN BEHALF) Bryan A.
Kwan FOR THE RESPONDENTS, Graham Goodwin, Rick Middleton, James Welsh, Greg Adams, and the University of Newcastle SOLICITORS OF RECORD :
Duncan & Craig LLP Edmonton, Alberta FOR THE RESPONDENTS, Graham Goodwin, Rick Middleton, James Welsh, Greg Adams, and the University of Newcastle
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