Date: 20041025
Citation: 2004 FC 1479
Toronto, Ontario, October 25th, 2004
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
EMBAYE MELEKIN
Applicant
and
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR ORDER AND ORDER
[1] A status review was conducted in accordance with Rule 383 of the Federal Court Rules, 1998 (the Rules) based on the written submissions filed on September 30, 2004 by the Applicant in response to the Notice of Status Review dated August 31, 2004.
[2] The Applicant, who is self-represented, brought an application for judicial review on January 14, 2004 in respect of a decision of the Canadian Human Rights Commission dated December 15, 2003, which dismissed the Applicant's complaint of discriminatory treatment by his former employer, Bell Canada (Bell). The grounds for dismissal of the Applicant's complaint, as stated in the Notice of Application, were "that an investigation indicated that the complainant's disability needs were accommodated during the period of his employment", and that "evidence supported that the complainant was released at the end of his term for reasons other than disability".
[3] The CHRC is the only party named as respondent to the application, notwithstanding that a tribunal whose decision is the subject of judicial review is not a proper responding party in an application: Yeager v. Canada, (2000), 189 F.T.R. 196. (T.D.). Neither the Attorney General of Canada, nor Bell, have been joined as parties, and there is no indication that they are even aware of this proceeding.
[4] Immediately following the commencement of the proceeding, the Applicant sent three letters to the President and CEO of Bell requesting production of certain documents, however, his requests were apparently rebuffed. The Applicant took no further steps to move the proceeding forward and the proceeding remained dormant until the Notice of Status Review was issued a number of month is later in August 2004.
[5] In Baroud v. Canada (1998), 160 F.T.R. 91 (T.D.), Hugessen, J. identified the two questions which should concern the Court on status review. First, what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred? Second, what steps is the plaintiff now proposing to move the matter forward?
[6] The Applicant seeks to excuse his delay by pleading that he "was unaware of the time constraints of 180 days", that he has been unable to retain a lawyer, and that Bell frustrated his efforts to obtain his employment records. The Applicant's plea of ignorance of the Rules cannot be countenanced in the circumstances. To begin with, all litigants have an obligation to comply with the Rules, even if they are not represented by a lawyer. Further, although it is trite to say, ignorance of the law cannot serve as an excuse. In the present case, the Applicant had the wherewithal to institute the proceeding within the time provided in subsection 18.1(2) of the Federal Courts Act. In addition, in his letters to Bell, written within days of commencing the proceeding, the Applicant refers to a "deadline" for "court filing", and an "urgency to (his) request and the time limit ...to meet to file a court case". The Applicant's claim that he lacked knowledge of the Rules is seriously undermined, as he appears to be well versed with the requirement that applications are meant to be heard in a summary manner.
[7] As for attempting to lay the blame for the delay on Bell, the Applicant was aware, as early as March 2, 2004, that Bell would not be cooperating by voluntarily producing the requested records of employment. Yet, despite his belief that Bell was "successfully subverting all of (his) efforts to seek legal redress", the Applicant did nothing to compel production from the non-party. In any event, it is far from clear that the material requested from Bell would be useful since, generally, only documents which were actually before the decision-maker when it made its decision are considered relevant and admissible. In the circumstances, I am not satisfied that the Applicant has either explained the delay, or justified his inaction.
[8] As for the second leg of the Baroud test, the Applicant has put forward no concrete steps to move the proceeding forward; in fact, quite the opposite. The Applicant states that he tried to secure the assistance of a lawyer, but without success. He also claims that he doesn't have the financial resources to hire a lawyer. There is no indication, however, as to when he approached lawyers to take on his case, and when he gave up looking for counsel. The Applicant ultimately had the responsibility to diligently pursue the application, with or without counsel. The fact that the Applicant wishes to proceed with the application is simply not enough. Based on the information before me, I am not satisfied that the Applicant has the continued intention, or even the ability, to bring this application to a timely conclusion.
[9] Taking into account the seven month delay, which has not been satisfactorily explained, and the absence of any concrete steps to move the proceeding forward, I conclude that application ought properly be dismissed for delay.
ORDER
THIS COURT ORDERS that the application be dismissed for delay.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-91-04
STYLE OF CAUSE: EMBAYE MELEKIN
Applicant
and
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent
MATTER CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 380
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE, P.
DATED: OCTOBER 25, 2004
WRITTEN SUBMISSIONS BY:
Embaye Melekin FOR THE APPLICANT,
ON HIS OWN BEHALF
SOLICITORS OF RECORD:
Embaye Melekin FOR THE APPLICANT
Downsview, Ontario ON HIS OWN BEHALF
FEDERAL COURT
Date: 20041025
Docket: T-91-04
BETWEEN:
EMBAYE MELEKIN
Applicant
and
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR ORDER
AND ORDER