Date: 19990820
Docket: T-745-99
BETWEEN:
GRANT R. WILSON
Plaintiff
- and -
REVENUE CANADA
and HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1] The Plaintiff filed a motion in writing requesting that I reconsider my order rendered on July 26, 1999 which granted leave to the Defendant to amend the Statement of Defence to include a limitations defence. The Plaintiff states in his motion for reconsideration that I failed to consider and accidentally overlooked the fact that the Plaintiff had not been served with the Defendant"s Notice of Motion dated June 28, 1999. The Plaintiff further states that the Defendant mislead the Court regarding personal service of the Notice of Motion and Affidavit dated June 28, 1999 and that the Defendant"s motion should therefore be dismissed.
[2] The Plaintiff"s has himself failed to comply with the Federal Court Rules, 1998 in bringing this motion. Firstly, the Motion Record does not contain any written representations as required under Rule 364(2)(d). As well, the Plaintiff, who is representing himself and is temporarily residing in Florida, apparently mailed out his Motion Record to the Registry for filing on August 4, 1999. The Motion Record was not received by the Registry until August 9, 1999, beyond the ten-day period provided for reconsideration under Rule 397(1)(a).
[3] There has been no explanation provided by the Plaintiff for his delay in filing the Motion Record. In my view, the Plaintiff was negligent in failing to ensure the Motion Record was filed on time. The fact that he is residing in Florida does not relieve him from compliance with the Rules. Although the Plaintiff"s failure to include written representations could be excused, the same cannot be said about his lack of diligence. Normal delays in delivery of mail, particularly from outside Canada, is clearly foreseeable. I would dismiss the Plaintiff"s motion solely on this basis. I should add however that had an extension of time been sought and granted, I would still have dismissed the motion on its merits.
[4] The Plaintiff states in his motion that the order dated July 26, 1999 should be reconsidered because he was not served with the Defendant"s motion. He is therefore challenging the Solicitor"s Certificate of Service which was before me at the time the Defendant"s motion was being considered and which certifies that the Plaintiff was personally served with the Motion Record on June 28, 1999.
[5] The Plaintiff filed his own affidavit in support of the present motion. At paragraphs 3, 4 and 5 of the affidavit, the Plaintiff states:
| 3. I have never been duly served with the Notice of Motion dated June 28, 1999 to date. |
| 4. On June 28, 1999, while at a hearing and during a recess at a Summary Judgment Motion, I was preparing remarks to follow on the Summary Judgment Motion hearing in Toronto, Ontario. I was approached by Ms. Nancy Arnold, solicitor for the Defendant. Ms. Arnold advised that she had a docket to serve me with. |
| 5. Prior to the Summary Judgment Motion hearing of June 28, 1999 in Toronto, a deposition hearing and cross-examination was conducted by Mr. John Shipley and Ms. Arnold, counsel for the Defendants and no documents or Motions were served. |
[6] The Plaintiff continues at paragraph 6 by asserting that he requested that service be in a "proper and timely manner". He concludes at paragraph 7 by stating that he was not served with any documents on June 28, 1999 by Ms. Arnold.
[7] In her sworn affidavit filed in opposition to the Plaintiff"s motion, Ms. Arnold asserts that on June 28, 1999 she personally handed over the Motion Record to the plaintiff and that he refused to sign an acknowledgment of service. She therefore filed a Certificate of Solicitor as proof of service in lieu of acknowledgment.
[8] Neither party has elected to cross-examine the opposing party"s deponent. I must therefore decide, based on the contradictory evidence before me, whether the Plaintiff was served with the Defendant"s Motion Record on June 28, 1999. In the end, I accept the sworn evidence of Ms. Arnold over that of the Plaintiff for the following reasons.
[9] The Plaintiff"s evidence is in my opinion somewhat equivocal. The Plaintiff takes issue with service, framing his objection in the following terms: "I was never duly served", "no documents or Motions were served", "Ms. Arnold did not serve myself", "no documents had been served" and "the Defence (sic) has not served any further documents". I note however that the Plaintiff does not deny that the Motion Record was handed to him.
[10] I am not clear as to the precise objection raised by the Plaintiff regarding service. He could be disputing effective service on the basis that he did not acknowledge receipt of the document in writing. He could also be challenging personal service as failing to meet some other technical requirement under the Rules. However, Rule 147 of the Federal Court Rules, 1998 would cure any actual or perceived deficiency of service. It provides as follows:
| Where a document has been served in a manner not authorized by these Rules or by an order of the Court, the Court may consider the document to have been validly served if it is satisfied that the document came to the notice of the person to be served or that it would have come to that person's notice except for the person's avoidance of service. |
[11] I see no reason to question the sworn evidence of Ms. Arnold, a solicitor and an officer of the court. I am satisfied, based on my review of the affidavits filed by the Plaintiff and Ms. Arnold, that the Plaintiff was personally served with the Defendant"s Motion Record. As such, the Plaintiff"s motion for reconsideration would also be dismissed as unfounded.
[12] Moreover, there is nothing before me to suggest that the order rendered on July 26, 1999 does not accord with the reasons given for it. As a result, for the reasons given above, the motion for reconsideration is dismissed.
IT IS HEREBY ORDERED THAT:
| 1. The motion for reconsideration is dismissed. |
"Roger R. Lafrenière"
Prothonotary
TORONTO, ONTARIO
August 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-745-99 |
| STYLE OF CAUSE: GRANT R. WILSON |
| - and - |
| REVENUE CANADA |
| and HER MAJESTY THE QUEEN |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: FRIDAY, AUGUST 20, 1999
| SOLICITORS OF RECORD: Grant Wilson |
| 14 Strathroy Crescent |
| Markham, Ontario |
| L3P 2E6 |
| For the Applicant, On His Own Behalf |
| Morris Rosenberg |
Deputy Attorney General of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
Date: 19990820
Docket: T-745-99
Between:
| GRANT R. WILSON |
| - and - |
| REVENUE CANADA |
| and HER MAJESTY THE QUEEN |
| REASONS FOR ORDER |
| AND ORDER |