Date: 19991208
Docket: T-1505-95
BETWEEN:
JOHN ALEXANDER SUMMERBELL
Plaintiff
-and-
HER MAJESTY THE QUEEN representing
Her Majesty's CORRECTIONAL SERVICE OF CANADA,
the COMMISSIONER OF CORRECTIONS, and the
INSTITUTIONAL HEAD of Her Majesty's
Warkworth Penitentiary
Defendant
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] There are before me three motions. The first, by the defendant Crown seeks to have the action dismissed because of the delay of the Plaintiff. This is a specially managed proceeding and on the 4th of June, 1999, Roger R. Lafrenière, Esquire, the prothonotary ordered the examination for discovery of the plaintiff to be completed on or before July 13th, 1999 and also that the examination for discovery of the defendant be completed on or before July 13th, 1999. That the parties should comply with undertakings arising from the examinations for discovery before September 13th, 1999, and that the plaintiff should requisition a pre-trial conference no later than September 30th, 1999. Mr. Lafrenière noted that the parties agreed to the timetable set out by the defendant which he included in his order. The defendant"s motion is supported by the affidavit of the same counsel who is submitting the representations and arguments. The plaintiff has objected to this and I agree with his objection. The affidavit must therefore be ignored.
[2] The defendant"s written argument indicates that the plaintiff has refused to be examined for discovery on June 28th , 1999, despite agreeing to be examined on this date. The plaintiff has refused to examine the defendant orally for discovery. He has failed to answer the undertakings arising from the first examination for discovery in May of 1997 and he has failed to request a pre-trial conference or file a pre-trial memorandum.
[3] The plaintiff points out that in the suggested timetable which he submitted, he had indicated that the examination of the defendant was to be in writing. He claims he made no agreement other than about the timetable and that neither the timetable nor the order of Prothonotary Lafrenière indicates whether the plaintiff"s examination of the defendant is to be oral or in writing. The plaintiff states and it is apparently admitted that he delivered a list of questions at the time of the aborted attendance to complete the discovery of himself. He also objects that the impugned affidavit indicates that copies of all non-privileged documents have been provided and states he has not received any copies of any documents despite several requests. The plaintiff claims that he had made a preliminary objection to the notice to attend for a continuation of his discovery because the form used was not in accordance with Form 91 of Federal Court Rules , that it is unsigned, that travel expenses have not been paid to him, and the scope of the documents that he is required to bring is too vague and too broad. In that preliminary objection he similarly objected to not yet having been able to inspect and obtain copies of the defendant"s documents. He objects further to what he claims is a penitentiary official"s continued obstruction of the plaintiff"s communication with the Court.
[4] The second motion is that of the plaintiff seeking an extension of time to file his pre-trial memorandum and a requisition for a pre-trial conference. The plaintiff states that he was unable to file the pre-trial conference material because the prison authorities refused to duplicate materials he wished to include.
[5] The third motion is also by the plaintiff and he seeks an order requiring the defendant and one of the Crown"s employees, Jason Mitchell, to show cause why they should not be held in contempt of court for acting in such a way as to interfere with the orderly administration of justice. The claim against the defendant being based on vicarious liability for the action of the servant.
[6] There is no evidence before me to show why it was necessary for the plaintiff to attend for discovery on a second occasion. If it was because of a failure or refusal to answer questions asked on his previous appearance, the re-attendance would be at his own expense. I note that there would be no actual travel, accommodation, or meal expenses. The objection to re-attendance while it might be justified for non-payment of conduct money or service in the wrong form indicates an absence of any willingness to get on with the proceedings.
[7] There is no indication of any agreement or requirement for oral discovery by the plaintiff.
[8] In my view therefore, the motion to dismiss must itself be dismissed.
[9] With regard to the request for an extension of time to file the pre-trial memorandum and requisition for pre-trial conference, no specific period of time has been requested. If the sole reason for not filing such on time was the lack of cooperation of the Crown employees, it seems to me that an extension of time to 20th of December, 1999, would be sufficient. If there is any other reason for delay, a motion in writing requesting a specific extension must be filed before that date.
[10] With regard to the ex parte motion for a show cause order, I note first, there is no vicarious liability of the Crown or any other employer for contemptuous acts of a servant.
[11] In paragraph 2 of his affidavit of October 21st, 1999, the plaintiff indicates he was asking for copies of all documents intended to be used at trial. The evidence purporting to show that the library and therefore Jason Mitchell was obliged to do copying is a memorandum dated May 22nd, 1996. That document indicates only a very limited type of copying will be done. That is excerpts of legal (library) books, legal acts, statutes etc. held by the library, commissioner"s directives, regional instructions and standing orders. It will not include personal legal documents which the librarian is not authorized to accept.
[12] While there may be some evidence against Jason Mitchell, only the defendant is alleged to have committed contempt by the Notice of Motion. As pointed out earlier, there is no vicarious liability of the Crown for an contempt committed by Jason Mitchell. In these circumstances, I do not have to decide whether the alleged conduct of Mitchell could result in a successful contempt proceeding against him. That matter will have to be decided when and if a contempt motion is specifically brought against him. The contempt motion will therefore be dismissed.
ORDER
[13] The time for filing the plaintiff"s pre-trial conference memorandum and requisition for pre-trial conference is extended to the 20th of December, 1999. It is to be noted that Rule 258(2) contemplated that all discoveries will have been completed before a pre-trial conference is requested. If either party wishes to continue discoveries, that party shall notify the other party and the Registry and by December 20th, 1999, request that the Registry schedule a telephone case management conference. At the case management conference it will be possible to set a timetable for the completion of various steps.
[14] The defendant"s motion is dismissed. The plaintiff"s motions are otherwise dismissed.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
December 8, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1505-95 |
| STYLE OF CAUSE: JOHN ALEXANDER SUMMERBELL |
- and -
| HER MAJESTY THE QUEEN representing |
| Her Majesty's CORRECTIONAL SERVICE OF CANADA, the COMMISSIONER OF CORRECTIONS, and the INSTITUTIONAL HEAD of Her Majesty's Warkworth Penitentiary |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: WEDNESDAY, DECEMBER 8, 1999
| WRITTEN SUBMISSIONS BY: Mr. John Alexander Summerbell |
| The Plaintiff, on his own behalf |
| Mr. George Thomson |
| For the Defendant |
| SOLICITORS OF RECORD: John Alexander Summerbell |
c/o The Warkworth Penitentiary
P.O. Box
Campbellford, Ontario
K0L 1L0
| The Plaintiff, on his own behalf |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Defendant |
FEDERAL COURT OF CANADA
Date: 19991208
Docket: T-1505-95
Between:
| JOHN ALEXANDER SUMMERBELL |
Plaintiff
- and -
| HER MAJESTY THE QUEEN representing |
| Her Majesty's CORRECTIONAL SERVICE OF CANADA, the COMMISSIONER OF CORRECTIONS, and the |
INSTITUTIONAL HEAD of Her Majesty's
Warkworth Penitentiary
Defendant
REASONS FOR ORDER
AND ORDER