Date: 19990211
Docket: T-2348-94
OTTAWA, ONTARIO, THIS 11th DAY OF FEBRUARY 1999
PRESENT: THE HONOURABLE MR. JUSTICE LUTFY
BETWEEN:
DR. V.I. FABRICANT
prisoner # 167932D
Donnacona jail
Donnacona, Quebec
G0A 1T0
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
LUTFY J.
[1] In September 1994, the plaintiff commenced this action in damages, alleging the wrongful conduct of penitentiary officials.
[2] In October 1994, the statement of defence was filed.
[3] The plaintiff has failed to take any further useful step in this proceeding.
[4] The plaintiff commenced five other actions in 1994 (T-838-94, T-1001-94, T-1295-94, T-1783-94 and T-1905-94) in which he also alleges wrongful misconduct of penitentiary officials. In these five other actions, but not in this proceeding, Joyal J. issued Directions on February 7, 1997 which stated:
| 1. The applicant may, by way of motion supported by affidavit and served on the opposite party, apply to attend in court personally with respect to the hearing of all of his motions, such motion to be heard under Rule 324 without the physical presence of the parties. |
| 2. The applicant should be told, however, that contrary to the views expressed in his letter of January 21, 1997, he has no right to be present in court while he is incarcerated in Donnacona; the affidavit referenced in paragraph 1 above should therefore set out the specific groups for which he requests to be present. |
| 3. The Court notes that so far, the applicant has filed actions T-838-94, T-1001-94, T-1295-94, T-1783-94 and T-1905-94. In many respects, these claims are confused and confusing, definitely not in keeping with the Rules of this Court, and have already created a considerable burden upon Registry staff. The plaintiff risks having them all struck out if they are not perfected. |
| 4. With the exception of the proceedings under paragraph 1 herein, all other proceedings are stayed until further Order of this Court. [Emphasis added.] |
[5] On August 27, 1998, a Notice of Status Review was issued pursuant to subparagraph 380(1)(a)(ii) of the Federal Court Rules, 1998. On August 25, 1998, the plaintiff filed written submissions in response to the Notice of Status Review in his action under court file no. T-1001-94. I have understood that the plaintiff intended his response in that action to be applicable to his other proceedings, including this one. The relevant portions of his response include the following:
| I have also personal reasons why I did not proceed in the cases. |
| a) I have heart condition, which culminated in a heart attack this May, and now I am in the state of unstable angina. I need the operation of angioplasty, and jailors are refusing to make proper arrangements for this operation. So, my state of health makes it very difficult for me to prosecute the cases personally. |
| b) I have contacted in 1996 lawyer C. Neron from Quebec City and asked him to take over the cases. As it always happens with lawyers, he kept promising for almost two years, and after I understood that he will never do a single thing, I had to let him go at the beginning of this year. After this, I have applied for Legal Aid, and again, none of the formalities are yet finished. |
| Taking into consideration the above, I ask the court to give me more time and I will do my best to prosecute all the cases as quickly as possible. I also ask the court to order Registry to comply with the Rule 431(3) in all pending cases and to schedule the settlement conference. |
[6] The Directions issued by Joyal J. on February 7, 1997 provided ample notice to the plaintiff to perfect the court record in the five other actions. The plaintiff was aware that there were no substantive steps taken in this file since the filing of the statement of defence in October 1994. He ought to have understood that this action was subject to the same fate as the others if the matter did not advance. Neither the plaintiff"s current health condition nor his inability to retain counsel, through legal aid or otherwise, constitutes a satisfactory explanation for the failure to move this action forward since the filing of the statement of defence. The plaintiff"s request that the Court "schedule the settlement conference" does not constitute a requisition for a pre-trial conference pursuant to Rule 258.
[7] As I am not satisfied that this proceeding should continue, the action will be dismissed for delay.
ORDER
The action is dismissed for delay.
Judge