Date: 20050114
Docket: T-1625-02
Citation: 2005 FC 38
BETWEEN:
CHARLES PAQUEO
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
[1] The Notice of Application filed 26 September 2002, giving rise to this judicial review, is a lengthy single-spaced document, which is not easy to either read or to understand. However, the review sought appears to involve a 22 May 2002 order of the Assistant Director of Vancouver Tax Services of the Canada Customs and Revenue Agency denying the Applicant further relief beyond a fairness legislation compromise of $16,036.00, of which $12,036.40 seems to be outstanding.
[2] Following a Notice of Status Review of 5 May 2003 Madam Justice Trembler-Lamer allowed this matter to proceed as a specially-managed proceeding, by an Order of 8 October 2003. As a result of further delays and inaction on the part of Mr Paqueo, on 20 October 2004 I ordered an interim status review so that Mr Paqueo might explain why this proceeding might not be dismissed for delay. I now turn to some relevant background.
BACKGROUND
[3] During the continuance of this proceeding as a specially-managed proceeding, Mr Paqueo failed to file his Applicant's record in a timely manner and thus, during a case management conference on 12 May 2004 he was directed to bring a motion for an extension of time, the motion to be filed not later than 11 June 2004.
[4] On 26 July 2004, a month and a half after the deadline for serving and filing the time extension motion, Mr Paqueo wrote to the Court to advise that he was planning to bring the motion for the time extension but had been ill. Unfortunately that letter proposed no positive schedule as to when Mr Paqueo intended to bring a motion for the time extension. No motion for a time extension having been filed, I issued a case management Order on 20 October 2004 ordering an interim status review pursuant to Rule 385(2). That Rule allows a case manager to order a status review of the same sort provided for under Rule 382. Such an interim status review, being a review of matter already under case management, may result in either dismissal for delay, or continuation as a specially-managed proceeding if the case manager is convinced and here the onus is on the applicant, that the matter ought to be allowed to proceed.
[5] I would observe that a status review takes place not so much to bring about an end to a matter but rather, if at all possible, is a tool to move a matter forward, if that is reasonably fair and possible in all of the circumstances. However, against this concept, of allowing an applicant a day in court so that he or she might obtain a decision and closure, I must balance the right of the respondent to expect a hearing without undue delay, so that the respondent is able to put forward a best case and then, regardless of the outcome, have certainty and the opportunity to get on with normal business. I would emphasize that it is the responsibility of the applicant both to move the proceeding along and to satisfy the Court that the proceeding should continue. This requires, among other things, a concrete proposal setting out the steps which the applicant proposes to take in order to move the matter along to a hearing.
[6] The notice of interim status review of 20 October 2004 provided that Mr Paqueo have until close of Registry on 19 November 2004 within which to serve and file an explanation by which to show cause and explain why this proceeding should not be dismissed for delay.
[7] On 19 November 2004, rather than filing a status review submission, in response to the status review order, Mr Paqueo delivered to the Registry a motion, supported by an affidavit and written representations, requesting an extension of time within which to answer the status review. The motion was not properly served on the Respondent and, as a result, was merely received by the Registry. The result of this unsuccessful attempt to file a motion for an extension of time, which was not corrected by proper service on the Respondent, was a Direction of 29 November 2004 providing, in part:
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Mr Paqueo's documents dated and delivered to the Court on 19 November 2004, called a notice of motion seeking a time extension, to which is attached an affidavit and written representations, appear to be a response to the 20 October 2004 Order for an interim status review pursuant to Rule 385(2). That response was required by 20 November 2004. The Registry and counsel for the Respondent understood the documents of 19 November 2004 to be a motion. In any event because of service problem the motion was not filed by the Registry. The present situation is not one which allows for any time extension motion, although conceivably the Order for the interim status review could have, at one time, been appealed. Rather it is a status review that Mr Paqueo must meet.
The material tendered by Mr Paqueo as a motion is irrelevant, for a status review is not to be dealt with by a motion, but rather by written representations. However Mr Paqueo appears to address one of the pertinent issues on a status review, as set out in Baroud v. Canada (Attorney General) (1998) 160 F.T.R. 91 (F.C.T.D.) at 92, which was explained in Day v. Attorney General of Canada, 2004 FC 1103, copies of which were provided to the parties. Mr Paqueo's material deals with delay, but only to an exceedingly limited extent does it propose any solution. Rather Mr Paqueo merely says that he is prepared to proceed with his application "within the time limit".
While the material does not qualify as a motion, by reason of faulty service. It will, however, be accepted by the Registry as the Applicant's status review response. Status review is not usually satisfied through the use of affidavit material, but in this instance I do not take the inclusion of an affidavit to be a defect. |
[8] While it was not required the Respondent, in a timely manner, filed written representations in response. Before assessing all of this I turn to some law bearing on status review.
SOME APPLICABLE LAW
[9] If the Court is not satisfied that the proceeding should continue, following an interim status review and here the onus is upon the Applicant, the proceeding may be dismissed for delay. This is a discretionary case management decision. The area was considered by Mr Justice Hugessen in Baroud v. Canada (Attorney General) (1998) 160 F.T.R. 91 (F.C.T.D.) at 92:
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[4] In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions:
1) what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred?; and
2) what steps is the plaintiff now proposing to move the matter forward?
[5] The two questions are clearly inter-related in that if there is a good excuse for the case not having progressed more quickly, the Court is not likely to be very exigent in requiring an action plan from the plaintiff. On the other hand, if no good reason is advanced to justify the delay, the plaintiff should be prepared to demonstrate that he recognizes that he has a responsibility to the Court to move his action along. Mere declarations of good intent and of the desire to proceed are clearly not enough. Likewise, the fact that the defendant may have been lax and may not have fulfilled all his procedural obligations is largely irrelevant: primary responsibility for the carriage of a case normally rests with a plaintiff and at a status review the Court will look to him for explanations. |
Here I would observe that the 29 November 2004 Direction not only referred to Baroud, but also referred to the fact that Mr Paqueo had received copies of Baroud and of Day v. Attorney General of Canada, 2004 FC 1103 at an earlier date as precedent material.
[10] Returning to the above quotation from Baroud, it makes various important points including that the Applicant has the responsibility to move the proceeding along; that mere declarations of good intention and of desire to proceed are insufficient; and that the main responsibility for the carriage and progress of a case rests with a plaintiff, or in this case, with the Applicant, Mr Paqueo. In the result the Court looks to the Applicant, Mr Paqueo, for explanation as to the delay.
[11] In Precision Drilling International, B.V. v BBC Japan, 2004 FC 701 Madam Justice Snider took a more liberal approach in applying Baroud (supra):
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12. Given the draconian effects of dismissing a claim for delay, I believe that it would be appropriate to focus on the overall interests of justice in the case and not to be overly concerned with minor omissions or procedural defects. The overarching concern should be whether the Plaintiffs recognize their responsibility to move this action along and are taking steps to do so. In my view, the Baroud questions are simply posed to address this concern and should not be applied in a manner that ignores this broader question. Thus, as I look at these two questions in the context of these particular facts, I would take a liberal approach to this analysis. |
[12] This approach in effect recognizes the seriousness of dismissal for delay, looks at the interests of justice and considers whether a plaintiff or as applied in the present instance an applicant, recognises his or her responsibility to move the proceeding along and is in fact taking steps to do so. In Precision Drilling (supra) Madam Justice Snider accepted, as a reason for formal lack of progress, ongoing discussion and optimism that the matter would be resolved without going through the litigation process.
[13] Also of interest in the present instance is Fabrikant v. Canada, [1999] FCJ No. 189 (QL), a 11 February 1999 decision of Mr Justice Lutfy, as he was then, involving a complex status review of an action. In Fabrikant the Court had provided ample notice, through directions to the plaintiff, as to the steps to be taken. This has a parallel in the present instance. There is also parallel between Fabrikant and the present proceeding, involving the health of the plaintiff. Mr Fabrikant had suffered a heart attack and was unable to retain counsel. Mr Justice Lutfy decided, in the light of the assistance which had been offered to Mr Fabrikant, that neither the health problem nor an inability to retain counsel, constituted a satisfactory explanation for delay: the action was dismissed for delay.
[14] Of interest is Pascal v Canada (AG) (2002), 228 F.T.R. 210 (F.C.T.D.), Mr Pascal providing as an excuse that he was often busy with personal matters and was not in an appropriate state of mind to deal with the proceeding: Mr Justice Pinard held that such general excuses were insufficient to provide justification for delay and thus dismissed the action for delay.
[15] I should also mention Manson Estate v Canada (MNR), [2003] 1 C.T.C. 13 (F.C.A.) in which the Federal Court of Appeal observed, in dismissing the applicant's appeal following a dismissal for delay, that a failure to comply with directions or orders of the court was a substantial factor in dismissal for delay. The court went on to observe that if those bringing the proceeding had complied with orders and directions in a timely manner, the proceeding would have been ready for trial months earlier. However, there being no material to justify the failures, the dismissal for delay of the Manson action, by the Trial Division, was upheld.
[16] The final case to which I will refer is Rogers (c.o.b. Lairds Aircraft Support) v Canada, 2001 FCA 382, 2001 FCJ No. 1857. At the trial level Mr Justice Pinard, in reconsidering a status review dismissal Order, adopted and summarized elements from the respondent's submissions, which are pertinent considerations to be applied to any party who has an obligation to move a matter forward:
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4. ...
a) The appellant has taken no positive steps to move the action forward beyond vague assurances that he would begin gathering documents, contacting witnesses and drafting settlement proposals, none of which have yet occurred. b) The appellant has not proposed any concrete steps for future progression of the action beyond assertions that he is willing to proceed.
...
d) The appellant's correspondence with the respondent has been vague and brief, and "do not constitute moving the matter forward."
e) Since the appellant has not offered a prima facie case as to why the dismissal order should be set aside, and has not offered any concrete steps for moving the matter forward, it cannot be said that the appellant meets the requirements of Rule 399 to set aside the Dismissal Order. |
Here the emphasis is on the fact that the appellant had failed to take any positive steps to move the matter forward to a conclusion. In Rogers the Court of Appeal approved the approach and analysis of Mr Justice Pinard. This has a parallel in the present proceeding, for Mr Paqueo merely says that he is prepared to provide responses, to show cause why the matter ought not to be dismissed for delay and to seek an early resolution so that he may move on with his life, which has been upset by 14 years of relentless harassment on the part of Canada Customs and Revenue Agency. None of these assertions lead in any way to concrete steps for future progression of the action, concrete steps which Mr Justice Pinard looked for in the Rogers case.
[17] I accept that Mr Paqueo is unable to afford professional legal assistance. That situation can, as the Federal Court of Appeal pointed out in Grenier v Canada, [2001] N.R. Uned. 99, [2001] FCJ No. 147 (QL) make delay more understandable. However Mr Paqueo has done little or nothing to help himself through taking advantage of suggestions and material provided by the Court.
[18] I now turn to a summary of the representations made by Mr Paqueo and by Crown counsel, as set out in their written material.
POSITIONS OF THE PARTIES
[19] I begin with the material of Mr Paqueo, consisting of a number of grounds bearing on the delay, set out in the motion, material set out in an affidavit and his written representations, all received by the Court 19 November 2004. Here I would observe that only what has occurred since the 19 August 2003 case management Order of Madam Justice Tremblay-Lamer is of relevance: earlier delay, while leading to that initial status review, and perhaps showing a pattern, is not relevant.
[20] The grounds set out in the motion, by which Mr Paqueo desired to seek further time to respond to the interim status review notice, are as follows:
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1. The Applicant has been seriously ill with the recurring kidney problems and the probability of a seventh surgery of kidney stones removal with further complication of diabetes and high cholesterol in the past 6 months;
2. The Applicant has no legal counsel;
3. The Applicant had formed an intention to take proceedings within the time limit;
4. The Applicant has an arguable case;
5. It is in the interest of natural justice that the Applicant's appeal be heard in that there has been no satisfactory resolution to this case since 1991.
6. There is no prejudice to the Respondent. |
Relevant here is illness going back at least six months and, perhaps to a degree, a lack of legal counsel. The balance of the elements, taking into consideration both Baroud (supra) and the more liberal approach in Precision Drilling (supra) are largely irrelevant, for Mr Paqueo, while having good intentions, proposes nothing by which to move his judicial review towards a conclusion.
[21] In his affidavit sworn 19 November 2004 Mr Paqueo repeats the bare advice about his illness and his inability to retain counsel, because of the costs and then goes on to set out that:
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4. As the applicant, I am prepared to proceed with the application within the time limit.
5. I am prepared to provide a response within the time limit to the Notice of Status Review as soon as I am served. 6. I am prepared to show cause why proceeding should not be dismissed for delay in respect of the order by the Prothonotary, Mr. John Hargrave, dated October 20, 2004. |
These assertions amount to "[m]ere declarations of good intent and of the desire to proceed" which Mr Justice Hugessen warned against, as being clearly insufficient, in Baroud (supra) at page 92.
[22] The written representations tendered by Mr Paqueo are almost entirely a repetition of the motion and affidavit, however Mr Paqueo adds:
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f. Although, I have been in failing health, I am fully prepared to proceed with the trial of the case within the time limit as I have complied with the application, supporting affidavits and documentary exhibits of the case. |
This is a confusing assertion, because the reason for the status review is that Mr Paqueo had neither observed time limits nor complied by providing the supporting material necessary to move this proceeding along.
[23] Mr Paqueo's written material concludes with the following:
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2. ARGUMENT: 1. The applicant respectfully contends that he has been seriously ill with the recurring kidney problems and the probability of seventh surgery of kidney stones removal with further complication of diabetes and high cholesterol in the past 6 months that Is why he was not ably to attend to this pending matter, 2. The applicant. has prepared for this case or a long time and it is inconceivable to him not to proceed. 3. This case has deeply impacted the applicant and his family. It has deeply affected his ability to get better job opportunities, the prospect of job advancement, his earning capacity and his entire future,
4. The applicant would want to seek and early resolution of this case so he can move on with his life which has been hindered and dragged on by the relentless harassment upon him inflected by CCRA in the past 14 years, |
Here I note that Mr Paqueo has ongoing medical problems, going back at least six months, although that is far short of the time that has run since the first case management Order. That it is, in his view, inconceivable that he would not proceed, because of the impact upon himself and upon his family and that he has the desire to obtain an early resolution, are all laudable settlements, but, as I have indicated, fall into the category of mere declarations of good intent and of a desire to proceed, which clearly stop short of being sufficient. I now turn to the position of the Respondent, summarizing some passages and quoting others.
[24] Broadly speaking the Respondent submits that Mr Paqueo's proceeding has been characterized by his perpetual delay, with Mr Paqueo displaying "only the commitment necessary to bring repeat applications for extensions of time.". The Respondent notes that the last step in this proceeding was the Respondent's filing of his affidavit, 6 December 2002 and thus, by Rule 309, Mr Paqueo's record was due to be served and filed by 15 January 2003: Mr Paqueo's record is now some two years late. The Respondent goes on to observe that the Applicant, although directed to bring a motion to extend time within which to file his Applicant's record, at a case management conference of 12 May 2004, has failed to take that step.
[25] The Respondent makes the point that it is for Mr Paqueo to explain his delay and goes on to observe that the health problems, given as a reason for the delay, have never been categorized as to their nature and degree and that Mr Paqueo has not explained how his health problems incapacitated him to the degree that he could not file his Applicant's record, but has been able to prepare time extension motions, if required to do so in order to prevent dismissal of the proceeding. The Respondent concludes that "the Applicant appeared motivated only to perpetuate his delay, not to move this matter forward.". The Respondent submits that Mr Paqueo has not adequately explained the delay, for he seems well enough to produce material, including as to time extensions, but is not well enough to prepare and file his Applicant's record.
[26] Finally, the Respondents submits that:
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16. In addition, the Applicant has not proposed any measures by which he proposes to move this matter forward, as he is required to do.
17. Amanda Day v. Attorney General of Canada 2204 FC 1003.
18. The Applicant has merely indicated an intention to proceed "within the time limit." 19. However, "mere declarations of good intent are clearly not enough."
Baroud v. Canada (Attorney General), (1998) 160 F.T.R. 91 at 92 |
The Respondent concludes that Mr Paqueo's application ought to be dismissed for delay because:
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20. The Applicant has merely provided bland assurances without providing any positive and concrete indications that this matter will proceed expeditiously. Accordingly, the Applicant has failed to show cause why this proceedings should not be dismissed for delay. |
CONSIDERATION
[27] The Applicant has had the benefit of opportunities, suggestions and accommodations during the case management process. If these, or even some portions, had been acted upon, Mr Paqueo might have moved his case forward. Here I have in mind, as a specific example, a case management letter of 12 May 2004 setting out a need for and form of a motion to obtain a time extension within which to file his record. That letter referred to two cases, one of which was known to Mr Paqueo. The letter went on to set out, with reference to various Rules, the steps which Mr Paqueo ought to take in order to move the matter forward and concluded with a caution that if the Rule 314 requisition for hearing was not filed in a timely manner there would likely be a further status review to determine whether this judicial review application should be dismissed for delay.
[28] Taking all of this into consideration, the Applicant has failed to satisfy the test in Baroud (supra), or even the modified test proposed by Madam Justice Snider in Precision Drilling (supra) and moreover has failed to overcome the barrier set out in Fabrikant (supra). In Fabrikant serious specified health conditions and an inability to retain counsel were not accepted as satisfactory explanations for failing to move the proceeding forward. However I am also aware that explanations, on status review, should be considered on a case by case basis. In this instance it is fair to say that Mr Paqueo seemed able to generate material by which to propose time extensions and to make various submissions, but was unable to come to grasp with the actual steps required to move the proceeding forward or to propose when such steps might be taken.
[29] Even taking the very liberal approach to Baroud (supra), proposed in Precision Drilling (supra), the justification for the substantial delay is very weak. Mr Paqueo has demonstrated only a minimal recognition of his responsibility to move the judicial review proceeding along, in any sort of a timely manner or at all.
CONCLUSION
[30] Status review does not focus on bringing a matter to an end, but rather, if at all possible, should be looked upon as a means to move an application or an action forward, if that is a reasonable outcome, fair and possible in all of the circumstances. Indeed it is important to allow an applicant a day in court so that he or she might obtain a remedy and closure. But I must balance this reason for proceeding against the right of a respondent or defendant, as the case may be, to expect a hearing or a trial without undue delay so that the parties might then, as set out in in Sebastian v Canada (Minister of Indian Affairs and Northern Development) (1996) 115 F.T.R. 268 (F.C.T.D.) at 274, get on with business within a reasonable time:
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[33] A decision to dismiss for want of prosecution ought not to be taken lightly. It is a very stern measure indeed to deprive a party of their day in Court. However, in any litigation a plaintiff has duties and a defendant has rights. A duty on the part of a plaintiff is to move the action forward at a proper pace; a defendant has a right to expect a trial of an action without undue delay, so that the defendant may not be prejudiced by being unable to put forward its best case and then, win or lose, certainty and an opportunity to get on with business within a reasonable time. |
[31] The justifications given by Mr Paqueo, for the delay, together with the insubstantial good intentions to move the proceeding along are insufficient to meet either a generous interpretation of the requirement set out in Baroud (supra) or in any way to satisfy the Court that the action should continue as set out in Rule 382(2)(a). This application for judicial review is thus dismissed for delay.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
14 January 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-1625-02
STYLE OF CAUSE: Charles Paqueo v. Canada Customs and Revenue Agency
REASONS FOR ORDER: Hargrave P.
DATED: 14 January 2005
WRITTEN REPRESENTATIONS:
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Charles Paqueo
Raj Grewal
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APPLICANT on his own behalf
FOR RESPONDENT
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SOLICITORS OF RECORD:
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Charles Paqueo Burnaby, British Columbia
John H Sims, QC Deputy Attorney General of Canada Department of Justice Vancouver, British Columbia |
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APPLICANT on his own behalf
FOR RESPONDENT
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