Canadian Slovak League v. Canada

Canadian Slovak League v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2003-10-02 Neutral citation 2003 FCA 369 File numbers A-183-02 Decision Content Date: 20031002 Docket: A-183-02 Citation: 2003 FCA 369 CORAM: LINDEN J.A. EVANS J.A. MALONE J.A. BETWEEN: THE CANADIAN SLOVAK LEAGUE Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, on October 2, 2003. Judgment delivered from the Bench at Toronto, Ontario, on October 2, 2003. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Date: 20031002 Docket: A-183-02 Citation: 2003 FCA 369 CORAM: LINDEN J.A. EVANS J.A. MALONE J.A. BETWEEN: THE CANADIAN SLOVAK LEAGUE Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on October 2, 2003) EVANS J.A. [1] This is an appeal by the Canadian Slovak League from a decision of the Motions Judge, dated February 28, 2002, dismissing its motion to revive an action. The action had been commenced in 1979 and was dismissed for delay by an order of the Associate Chief Justice, dated May 26, 1996, after the League had failed to comply with a direction aimed at expediting the matter. [2] The League did not receive notice of either the direction or the order. They had been mailed to its counsel at the address on the last document that he had filed with the Court. Counsel did not advise the Registry when he moved his office to a new location. The direction was issued after the Associate Chief Justice had issued a Notice to the Profession advising that the Court had identified 16,000 files on which there had been no activity for six years and would be issuing directions with respect to each of them. [3] We are not persuaded that, in exercising his discretion to dismiss the motion, the Motions Judge erred. He took into account the history of inordinate delays in this matter and the fact that counsel had not received copies of the direction or the order because he had not notified the Court of his new address. We would also note that the Crown would likely be prejudiced by the revival of an action that it had believed since 1996 had been dismissed. [4] In these circumstances, the Motions Judge cannot be said to have attached an inappropriate weight to the factors on which he relied, nor do the interests of justice demand that the League be afforded its day in court in order to appeal against tax reassessments for the years 1973, 1974 and 1975. [5] Counsel also argued that the Motions Judge erred in law because the Associate Chief Justice had no authority to issue the direction and to dismiss the action when the League failed to respond to it within the time prescribed in the direction. [6] We do not agree. The direction was issued under rule 327.2(2)(c) of the pre-1998 Rules, which conferred a broad discretion to "give such directions as the Chief Justice or the designated judge considers appropriate for the purpose of expediting the hearing of the action". By requiring the League to file a motion requesting an order for directions on the procedure to govern the proceeding, the Associate Chief Justice was clearly acting within the authority granted by Rule 327.2(c). [7] While the Rule did not expressly authorise the imposition of a sanction for non-compliance with a direction issued under it, in our opinion such a discretion should be implied, including the power to dismiss the proceeding. As Hargrave P. said in Bahrami. v. Canada (Minister of Citizenship and Immigration) (1998), 149 F.T.R. 133 at para. 6: "the court does have the implied jurisdiction to make its procedural system work." [8] For these reasons, the appeal will be dismissed, but without costs. "John M. Evans" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-183-02 STYLE OF CAUSE: THE CANADIAN SLOVAK LEAGUE Appellant and HER MAJESTY THE QUEEN Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: OCTOBER 2, 2003 REASONS FOR JUDGMENT OF THE COURT: LINDEN J.A. EVANS J.A. MALONE J.A. DELIVERED FROM THE BENCH ON OCTOBER 2, 2003 BY: EVANS J.A. DATED: OCTOBER 2, 2003 APPEARANCES: Mr. John V. Stephens, Q.C. FOR THE APPELLANT Mr. Henry A. Gluch FOR THE RESPONDENT SOLICITORS OF RECORD: John V. Stephens, Q.C. FOR THE APPELLANT Barristers & Solicitors Toronto, Ontario Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada