Chartier v. Manitoba Public Date:, 2013 MBCA 56

Citation: Chartier v. Manitoba Public Date: 20130703 Insurance Corporation et al., 2013 MBCA 56 Docket: AI 98-30-04041 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: JULES HONORÉ CHARTIER ) T. B. Kumka ) for the Manitoba Public (Appellant) Respondent ) Insurance Corporation ) - and - ) J. H. Chartier ) on his own behalfMANITOBA PUBLIC INSURANCE ) CORPORATION ) D. G. Guénette ) for the Automobile (Respondent) Applicant ) Injury Compensation ) Appeal Commission- and - ) ) Chambers motion heard:AUTOMOBILE INJURY COMPENSATION ) May 16, 2013APPEAL COMMISSION ) ) Decision pronounced: Respondent ) July 3, 2013 MICHEL A.

MONNIN J.A. [1] The respondent, Manitoba Public Insurance Corporation (MPI), brings a motion seeking the dismissal of theappellant’s appeal on the grounds of delay. [2] Although the motion was brought in chambers, counsel for MPI properly pointed out that, based on the decision ofLyon J.A. in LeMay v.

Manitoba Métis Federation Inc. (1996), (MB CA), 110 Man.R. (2d) 226 (C.A.), what he wasin fact seeking was a referral of the motion to a panel of the court. [3] In LeMay, Lyon J.A. said (at paras. 8-9): Furthermore, rule 39 states: Dismissal for delay 39 Where an appellant unduly delays the prosecution of an appeal, the respondent may, by giving notice to the appellant, make a motionto the court for the dismissal of the appeal ... This rule may only be invoked by “the court”, defined in the Court of Appeal Act as meaning “The Court of Appeal”, not a single judge

of that court in Chambers. See Law Society of Manitoba v. Eadie, May 27, 1988, Man. C.A., unreported, per Monnin, C.J.M. [4] On December 31, 1998, the appellant, Jules Honoré Chartier (Chartier), on his own behalf, initiated proceedings inthis court by filing an application seeking leave to appeal from a decision of the Automobile Injury Compensation Appeal Commission(AICAC). [5] On October 10, 2001, Chartier, then represented by counsel, filed an amendment to the notice requesting leave toappeal.

Amongst the new grounds of appeal, Chartier alleged that the AICAC breached his right to have his hearing conducted in alanguage of his choice; namely, in French. [6] On August 20, 2008, counsel for AICAC filed a motion to expunge portions of an affidavit Chartier had filed in replyto a motion by AICAC seeking to admit new evidence. [7] On October 28, 2008, sitting in chambers, I granted an order allowing AICAC to provide fresh evidence and orderingthat portions of affidavits previously filed be expunged. [8] The order that I granted on October 28, 2008, has yet to be taken out as counsel for AICAC could not get approvalfrom counsel for Chartier to a proposed form of order.

There were numerous exchanges of correspondence between counsel, but nothingwas resolved. On June 19, 2012, counsel for Chartier informed the court that, thereafter, Chartier would be acting on his own behalf. Basically, nothing has transpired in this matter since that date. [9] The test to be met in seeking to strike an appeal on the basis of delay is set out in Mauer v. McDougall et al., 2001MBCA 2, 153 Man.R. (2d) 259. The per curiam decision states (at para. 10): There is no dispute as to the applicable law. In Law Society of Manitoba v.

Eadie, (MB CA), [1988] 6 W.W.R. 354;54 Man.R. (2d) 1 (C.A.), this court outlined the factors to be taken into account on a motion for delay (at para. 16): Amongst the matters which should be taken into account on a motion such as this are: (

i) the subject matter of the litigation; (ii) the complexity of the issues between the parties; (iii) the length of the delay; (iv) the explanation for the delay; (

v) the prejudice to the other litigant. .... [10] Based on the above test and considering the date when the leave application was originally filed, the lack of anymeaningful progress on the application as a whole, and finally, the fact that an order granted almost five years ago has yet to be takenout, I have little hesitancy in coming to the conclusion that MPI’s motion should be heard by a panel of this court, and I so order. J.A.