Date: 20060418
Docket: T-1257-04
Citation: 2006 FC 491
Admiralty Action in rem against the Ship m/v "Mersey Viking"
Admiralty Action in personam against Mersey Seafoods Limited
BETWEEN:
PUTJOTIK FISHERIES LTD.,
JOEY ANGNATOK, ROGER BATH,
DARREL GREY, ERROL ANDERSON,
RICKY EDMUNDS & DENNIS JACQUE
Plaintiffs
and
MERSEY SEAFOODS LIMITED
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "THE MERSEYVIKING"
Defendants
REASONS FOR ORDER
MORNEAU P.
[1] These are the reasons in support of an order rendered on Thursday, March 16, 2006, whereby this Court granted with costs the Defendants' motion for an order dismissing the Plaintiffs' action under rule 167 of the Federal Courts Rules on the grounds that there has been undue delay by the Plaintiffs in prosecuting their action.
[2] In summary, the Defendants' position is that the Plaintiffs (the Court here is talking about the Plaintiffs per se and not their counsel) consistently demonstrated a lack of interest in advancing their claim prior to the status review by their failure to produce an affidavit of documents including relevant documentation disclosure. Even though the Plaintiffs survived the status review, the Defendants argue that the Plaintiffs continued afterwards to show a lack of interest and effort in advancing their case by not producing a meaningful affidavit of documents by an October 20, 2005 deadline ordered and, to a lesser extent, by failing to contact afterwards counsel for the Defendants to arrange dates of discoveries so that a subsequent ordered deadline could also be met.
[3] For the reasons that follow, I am of the opinion that the Defendants' assessment of the situation is accurate, and although a court is always reluctant to strike a claim but would instead try to see if one last chance could be envisaged so as to allow a party to put its case together, the state of affairs in the present case clearly does not allow the Court to consider that the case would evolve at an acceptable pace from now on considering that an affidavit dated March 10, 2006 and produced by the Plaintiffs in opposition to the motion at bar clearly leads the Court to believe that the Plaintiffs have not at any relevant time put themselves in a position to gather and produce the relevant documentation their claim calls for.
Background
[4] The Plaintiff Putjotik Fisheries Ltd. was at all material times the owner of the registered fishing vessel "What's Happening". Its Captain was Joey Angnatok and the rest of the crew was composed of the remaining Plaintiffs listed in the style of cause.
[5] The Plaintiffs' action, as set out in their amended statement of claim dated July 21, 2004, claims damages of $178,855.86 as against the Defendants for lost fishing gear and lost fishing income allegedly as a result of interference by the Defendant ship "Mersey Viking" with the fishing gear of the Plaintiffs in September or October 2002.
[6] It would appear that the pleadings were considered closed shortly after the production by the Defendants on October 5, 2004 of their statement of defence.
[7] In accordance with rule 223, both parties were required shortly thereafter to produce their affidavit of documents listing all relevant documentation.
[8] Consequently, under cover of a letter dated February 3, 2005, the Defendants' affidavit of documents was forwarded to the Plaintiffs' solicitors.
[9] Since the Plaintiffs had not produced their affidavit of documents by that date, in the Defendants' letter of February 3, 2005, a request was made for production of the Plaintiffs' affidavit of documents which asked to include without limitation the following:
· All logs from the Plaintiffs' vessel "What's Happening" for the trips on which the relevant gear was set and retrieved or attempted to be retrieved;
· Any relevant notes or reports prepared by the vessel's master or crew;
· Any charts that were employed on board the vessel during the trips where the lost gear was set and retrieved or attempted to be retrieved; and
· Documents substantiating the alleged losses, including:
(i) receipts for gear replacement expenses;
(ii) copies of the Plaintiffs' fishing licenses for the relevant year; and
(iii) copies of the Plaintiffs' catch and sale records for the year of the claim and two years before and after the claim, to assist in assessing quantum of the lost fishing income claim.
[10] These specific categories of documentation (hereinafter the requested documents) most likely - and rightly so - appeared relevant to the Plaintiffs' counsel since the latter responded by letter dated February 18, 2005 that he had forwarded the Defendants' letter to the Plaintiffs, most likely and specifically to Plaintiff Joey Angnatok, and had requested that copies of the requested documents be provided, following which the Plaintiffs' affidavit of documents would be filed.
[11] The Plaintiffs did not follow suit thereafter with the production of the requested documents and their affidavit of documents.
[12] There were no further developments in this file for over five months until the Court issued on July 12, 2005 a notice of status review.
[13] In response to that notice, Plaintiffs' counsel filed written submissions (dated August 18, 2005) which essentially evidenced that although the Plaintiffs' counsel had clearly been diligent in making efforts to contact Plaintiffs shortly after the production of the Defendants' statement of defence in October 2004, the Plaintiffs themselves had made no efforts to advance their case and had failed to respond to their counsel's inquiries or provide them with any instructions at all. In addition, the Plaintiffs' submissions also asked the Court to note that the Plaintiffs were fisher people who spent lengthy periods of time at sea and lived in a remote area of Labrador, which made communications in a timely fashion difficult. In that respect, the following passages from the Plaintiffs' written submissions on the status notice are instructive:
Following receipt of the Statement of Defence the undersigned wrote to the client on October 7th, 2005 [2004] requesting further documentation and instructions. This letter was followed by a second correspondence on January 6th, 2005. On February 3rd, 2005 the undersigned received the defendant's Affidavit of Documents and a covering letter from Mr. Richard Southcott, solicitor for the defendant, requesting specific documentation. On February 10th, 2005 the undersigned wrote to the client forwarding Mr. Southcott's letter and requested the client provide the documentation and instructions. On February 18th, 2005 the undersigned wrote to Mr. Southcott informing that the documentation had been requested from the client. On April 22nd, 2005 the undersigned again wrote to the client requesting documents and instructions. We enclose copies of these letters for your reference.
In addition to the numerous letters sent to the client the undersigned has made numerous calls to the client to attempt to receive instructions. To date, save one telephone conversation in or around November, 2004, the undersigned has not received a reply to the letters or any other further instructions from the client.
Disposition:
Therefore, the undersigned asks the court to note that it was October, 2004 before the Statement of Claim was served and the Defence was received by the Defendant. Further, the undersigned asks the court to note that the client(s) are fisher people and spend lengthy periods of time at sea and live in a remote area of Labrador (when they are not fishing) all of which makes it difficult to communicate in a timely fashion.
The undersigned therefore requests that the within matter not be dismissed due to the undersigned's inability to receive documentation and instructions from the client. The undersigned requests that the matter not be dismissed at this time. If the court allows the Plaintiff to maintain this action the undersigned suggests deadlines which will allow the undersigned further opportunity to obtain instructions from the client on how to proceed with the action if at all.
(My emphasis.)
[14] In written submissions opposing the pursuance of Plaintiffs' claim, the Defendants noted that almost six months had passed since they had provided the Defendants' Affidavit of Documents and asked the Plaintiffs for their productions, and that it was apparent from the Plaintiffs' submissions that the Plaintiffs had not even provided relevant documentation to their counsel. The Defendants respectfully submitted that it was apparent that the Plaintiffs did not have the intention to advance this action or at a minimum had not demonstrated sufficient interest and diligence in doing so to warrant the Court permitting the proceeding to continue. The Defendants relied upon the authority of Netupsky v. Canada, 2004 FCA 239, to the effect that a plaintiff in response to a Notice of Status Review was required to provide a justification for the failure to move the case forward and to advise the Court as to measures it proposed to take to move the case forward. The Defendants' position was that the Plaintiffs' written submissions had not met these requirements.
[15] In an order dated September 22, 2005, my colleague Aronovitch allowed nevertheless the Plaintiffs' claim to be pursued. However, she sternly scolded the Plaintiffs by providing as follows:
It is the responsibility of the Plaintiffs to prosecute their action. Notwithstanding the explanation of counsel for the Plaintiffs as to the exigencies of the Plaintiffs' seasonal occupation, they are to assume their responsibility to ensure that the action proceeds to trial in timely manner and to comply strictly with the below timetable;
IT IS ORDERED THAT:
1. The matter shall continue as a specially managed proceeding.
2. The plaintiffs shall serve their affidavit of documents by no later than October 20, 2005.
3. Discoveries, including undertakings shall be completed by no later than January 31, 2006.
4. Settlement discussions shall take place by no later than February 15, 2006.
5. The plaintiffs shall serve and file a Requisition for Pre-Trial Conference by no later than March 10, 2006.
6. Any further directions will be issued by the case management judge or prothonotary.
(My emphasis.)
[16] Shortly thereafter, on November 1, 2005, I was designated to assist Justice Hugessen with the case management of this file.
[17] On October 19, 2005, the Plaintiffs produced an affidavit of documents. However a perusal of same reveals that the only documents that have been produced consist of corporate certificates, notices and printouts concerning the parties, one letter from the Defendant, Mersey Seafoods Limited, to the Plaintiffs' prior counsel, a one page invoice for snow crab gear, and a set of six photographs.
[18] Consequently, on November 10, 2005, counsel for the Defendants wrote to the Plaintiffs' counsel, taking the position that the Plaintiffs had not complied with their obligations under the Court Order dated September 22, 2005 to make documentary disclosure by October 20, 2005. Said letter noted that, while an affidavit of documents had been received, the material disclosed therein was minimal and consisted of almost none of the specific categories of documentation that had been requested over nine months ago. While reserving the Defendants' right to take the position that the Plaintiffs' action should be dismissed on the basis of such non-compliance, Defendants' counsel inquired from the Plaintiffs' counsel as to whether it was Plaintiffs' intention to produce the requested material voluntarily and asked the plaintiffs' counsel to advise as to dates prior to the January 31, 2006 deadline prescribed by the Court within which the Plaintiffs would be available for discovery.
[19] Since no answer was received to said correspondence of November 10, 2005, counsel for the Defendants wrote again on December 2, 2005. His letter reads as follows:
Gentlemen:
I refer to my fax of November 10, 2005, to which I have received no response.
As expressed in that fax, it is our position that the Plaintiffs are in breach of the Court Order dated September 22, 2005. Despite bringing this to your attention in my November 10 fax, we have received no further documentary disclosure nor have we received from you advice as to dates when your clients would be available for discovery by the January 31, 2006 deadline prescribed by the Court. I have canvassed the availability of Captain Gordon Carver, the master of the "Mersey Viking", and can advise that there are a reasonable number of dates in January when he and I could be available. However, I expect the accommodation of the Plaintiffs' schedule may be more complicated because of the number of them. I should also emphasize that it will not be possible for us to schedule discoveries at the last minute.
As such, our position is as follows:
(a) We require complete documentary discovery by the Plaintiffs (including the documents we have previously requested) in a Supplementary Affidavit of Documents within 14 days, ie. by December 16, 2005; and
(b) We require by the same date, ie. December 16, 2005, your advice as to dates in January when the Plaintiffs are available for discovery.
Failing compliance with the above, it will be our intention to apply to have this action dismissed for want of prosecution and failure to comply with the deadlines prescribed by the Court.
I look forward to hearing from you.
[20] Again, no response was received from the Plaintiffs with respect to the December 2, 2005 correspondence.
[21] Hence, on January 13, 2006, the Defendants filed the motion at bar. Said motion had no returnable date and further to a Direction of this Court, it was established that it was to be heard on March 17, 2006 by way of a telephone conference. The Plaintiffs were required to serve and file their motion record in response by March 10, 2006.
[22] The Plaintiffs did comply on March 10, 2006 and included in their motion record in response an affidavit of the Plaintiff Joey Angnatok dated March 10, 2006 which reads:
I, Joey Angnatok, of the Town of Nain, in the Province of Newfoundland and Labrador make oath and state as follows:
1. THAT I am a Plaintiff in the within matter and a director of Putjotik Fisheries Ltd. another Plaintiff in the within matter.
2. THAT on or about October 19th, 2005 I executed an Affidavit of Documents, and this Affidavit of Documents was filed within the timeframe ordered by this Honourable Court.
3. THAT I have been informed by our solicitors that the solicitors for the Defendants have requested further documentation. I have attempted to obtain some of these documents but have had difficulty as many of them are in the possession of third parties such as the Department of Fisheries and Oceans.
4. THAT I have instructed my solicitors to make a freedom of information request from the Department of Fisheries and Oceans ("DFO") requesting the complete file in relation to the M.V. What's Happening and M.V. Newfoundland Navigator for the relevant time period. I have been informed that this information is particularly relevant to the Plaintiffs claim as fisheries observer Cyril Forward was on board of the Newfoundland Navigator at the time of this incident and has taken pictures and submitted a complete report to DFO.
5. THAT I have also requested information from other third parties such as Tomgat Fisheries, a fish processor who purchases the Plaintiffs fish.
6. THAT I live in Nain, Labrador which is a remote isolated area of Newfoundland and Labrador. I am also a fisherperson who spends a great deal of time at sea. These factors have at times made it difficult for me to prepare documents and schedule discoveries. I understand that these factors have also made it difficult for our solicitors to obtain instructions and move the (sic) forward faster at times. However, I do ask this Honourable Court to take these factors into account.
7. THAT with respect to moving this matter forward I propose to file any supplemental documentation Ordered by the Court at the date Ordered by the Court. I also propose that discoveries be commenced by the new date Ordered and I respectfully request an Order that the within action be maintained.
Analysis
[23] This motion is presented under rule 167. This rule permits the Court to dismiss a proceeding on the grounds that there has been undue delay by a plaintiff in prosecuting the proceeding. It reads:
| 167. The Court may, at any time, on the motion of a party who is not in default of any requirement of these Rules, dismiss a proceeding or impose other sanctions on the ground that there has been undue delay by a plaintiff, applicant or appellant in prosecuting the proceeding.
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167. La Cour peut, sur requête d'une partie qui n'est pas en défaut aux termes des présentes règles, rejeter l'instance ou imposer toute autre sanction au motif que la poursuite de l'instance par le demandeur ou l'appelant accuse un retard injustifié.
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[24] I agree with the Defendants that since the motion at bar arises further to a status review order, it is important in considering their motion to remember the approach taken by this Court in Ferrostaal Metals Ltd. v. Evdomon Corp. (2000), 181 F.T.R. 265 (confirmed at 196 F.T.R. 66 (T.D.) and 2001 FCA 297 (FCA)).
[25] In Ferrostaal, the plaintiffs had failed to produce their affidavit of documents by the time of the Court's status review, and the Court accordingly issued a case management order establishing deadlines for the plaintiffs to serve their affidavit of documents and for the parties to conduct discovery examinations. However, the plaintiffs failed to meet the deadline for production of their documents. The defendants' solicitors brought this default to the attention of the plaintiffs' solicitors, to which no response was received. The Court subsequently directed that the plaintiffs show cause why their action should not be dismissed for delay, and in deciding that the action should be so dismissed, I held as follows at paragraphs 20 to 23:
20 In my opinion, any unjustified non-compliance with an Order of the Court establishing a schedule is a serious matter in itself. When that Order was made pursuant to a status review, any unjustified default is even more serious, and the degree of tolerance shown by the Court will be correspondingly lower. After all, the Court is then dealing with a case that is delinquent for the second time. It seems to me that the test that then applies should be even simpler than what we find in France-Canada Éditions et Publications Inc. et al v. 2845-3728 Québec Inc., unreported decision dated March 9, 1999, docket no. T-2278-92, and Baroud v. Canada, [1998] F.C.J. No 1729. In my view, the sound administration of justice justifies saying that a finding of unjustified default is then sufficient in itself for a plaintiff's action to be struck for delay.
21 Of course, striking an action will definitely prejudice a plaintiff to some extent. However, in terms of a status review, an assessment of the prejudice to a party is not part of the equation that is applied (see Multibond Inc. v. Duracoat Powder Manufacturing Inc., unreported decision dated October 4, 1999, docket no. T-1703-94). This seems to me to be particularly true when, as here, we have a situation that arose after the notice of status review. If any prejudice should be taken into consideration at this point, it is the prejudice to the Court and those of its users who comply with the rules and orders. As my colleague Hargrave wrote in Trusthouse Forte California Inc. et al. v. Gateway Soap & Chemical Co. (1998), 161 F.T.R. 88, at page 89:
These reasons touch on the need for litigants to recognize that they must not delay proceedings unreasonably so as to tie up the court's resources needlessly. If a plaintiff should do so he or she stands to have the action dismissed. For the court to do otherwise results in stale proceedings which not only bring the court and its case management process into disrespect, but also affects and indeed may prejudice other litigants who wish to have their litigation resolved expeditiously.
22 Here, there is even more in terms of unacceptable conduct.
23 In this instance, the Court is of the opinion that the plaintiffs paid very little attention to the Order of the Court dated March 16, 1999. They allowed the various steps set out in that Order to expire without doing anything to obtain a variation from the Court. On November 9, 1999, the plaintiffs were reminded of their default by the defendant, and yet this prompted no response on their part. Heaven knows when the plaintiffs would have got back in touch with the Court by motion, were it not for the Court's Order dated January 5, 2000, which the Court made on its own initiative.
[Emphasis added.]
[26] In the case at bar, it appears undisputed that the requested documents specifically outlined to the Plaintiffs by the Defendants on February 3, 2005 are indeed in the circumstances of this case relevant documents. It appears that at all relevant times, even as of today, the relevancy of said documents has never been put into issue. They, as a matter of fact, should have been listed and produced by the Plaintiffs shortly after the close of pleadings without even the need for the Defendants to stress that fact to the Plaintiffs.
[27] Surely, in February 2005 when the attention of the Plaintiffs was specifically drawn to them through the efforts of counsel for Defendants and their own counsel, the Plaintiffs should have gathered and produced shortly thereafter the requested documents or at least they should have advised the Defendants that the documents, or some of them, were not immediately available or were not in their possession, power or control.
[28] They have not done so at the time, nor five months later at the status review stage, nor on October 19, 2005 when they served a purported affidavit of documents, nor in response to the Defendants' correspondence of November and December 2005.
[29] On March 10, 2006, as alluded to, supra, at paragraph 22, the Plaintiff Angnatok filed an affidavit which attempts now to justify why the requested documents did not form part of the Plaintiffs' affidavit of documents of October 19, 2005. Said affidavit is reproduced here anew for ease of reference:
I, Joey Angnatok, of the Town of Nain, in the Province of Newfoundland and Labrador make oath and state as follows:
1. THAT I am a Plaintiff in the within matter and a director of Putjotik Fisheries Ltd. another Plaintiff in the within matter.
2. THAT on or about October 19th, 2005 I executed an Affidavit of Documents, and this Affidavit of Documents was filed within the timeframe ordered by this Honourable Court.
3. THAT I have been informed by our solicitors that the solicitors for the Defendants have requested further documentation. I have attempted to obtain some of these documents but have had difficulty as many of them are in the possession of third parties such as the Department of Fisheries and Oceans.
4. THAT I have instructed my solicitors to make a freedom of information request from the Department of Fisheries and Oceans ("DFO") requesting the complete file in relation to the M.V. What's Happening and M.V. Newfoundland Navigator for the relevant time period. I have been informed that this information is particularly relevant to the Plaintiffs claim as fisheries observer Cyril Forward was on board of the Newfoundland Navigator at the time of this incident and has taken pictures and submitted a complete report to DFO.
5. THAT I have also requested information from other third parties such as Tomgat Fisheries, a fish processor who purchases the Plaintiffs fish.
6. THAT I live in Nain, Labrador which is a remote isolated area of Newfoundland and Labrador. I am also a fisherperson who spends a great deal of time at sea. These factors have at times made it difficult for me to prepare documents and schedule discoveries. I understand that these factors have also made it difficult for our solicitors to obtain instructions and move the (sic) forward faster at times. However, I do ask this Honourable Court to take these factors into account.
7. THAT with respect to moving this matter forward I propose to file any supplemental documentation Ordered by the Court at the date Ordered by the Court. I also propose that discoveries be commenced by the new date Ordered and I respectfully request an Order that the within action be maintained.
[30] As a whole, said affidavit did not attach - even as of March 10, 2006 - any of the requested documents, and for the first time ever suggested without any explanation that some of the documents would be in the possession of third parties and not in their own possession.
[31] The Angnatok affiant does not specify which of this requested documents would allegedly be with third parties, why this is raised just now and why he does not attach to his affidavit any of the requests through which he allegedly attempted to gather the documentation.
[32] This affidavit is also completely silent as to when exactly any retrieval steps were undertaken. A combined reading of paragraphs 2 and 3 of the affidavit leads also one to conclude that the Plaintiffs were not requested before their affidavit of October 19, 2005 to look and produce the requested documents when, as seen previously, their own counsel has indicated as early as February 18, 2005 that such a request was passed on to the Plaintiffs for their attention and response.
[33] The above-noted defects with respect to the Angnatok affidavit dated March 10, 2006 bring the Court to give little weight, if any, to said affidavit.
[34] Before leaving the affidavit under study, at paragraph 6 of it, the affiant points to the fact that he resides in a remote area and that as a fisherman he is often at sea. The Plaintiffs have exhausted the Court's indulgence with respect to those factors. Those factors were stressed by the Plaintiffs in their written representations to the status review back in July 2005. Surely they influenced my colleague Aronovitch in allowing the case to be pursued. However, as noted earlier, at paragraph 15, supra, she stressed the following in her order of September 22, 2005:
It is the responsibility of the Plaintiffs to prosecute their action. Notwithstanding the explanation of counsel for the Plaintiffs as to the exigencies of the Plaintiffs' seasonal occupation, they are to assume their responsibility to ensure that the action proceeds to trial in timely manner and to comply strictly with the below timetable; (...)
[35] As for the plan of action suggested by the affiant Angnatok in paragraph 7 of the affidavit in order to move the case forward, the preceding paragraphs of the affidavit and the defects contained therein make this proposal an utopia and subject to uncontrollable events.
[36] Therefore, the factual circumstances of the instant case are distinguishable from the situations at hand in the following cases raised by the Plaintiffs: Sokolowska v. Canada, 2004 FCA 318, and Intertech Marine Ltd. v. Menendez, 2004 FC 1456. In these cases, this Court and the Federal Court of Appeal saw fit to give one last chance to the defaulting party.
[37] However, in Sokolowska, the Federal Court of Appeal was dealing with a self-represented taxpayer who needed time and reminders in order to bring her case in conformity. In Intertech Marine, the Defendants' own conduct of the action was not without defaults, and the Court appeared to be of the view that the case could nevertheless be moved quickly under strict conditions.
[38] Here, as indicated earlier, the Angnatok affidavit is disconcerting at best as to when this case could ever be moved forward, let alone at a steady pace.
[39] In their written representations submitted in opposition to the motion at bar, the Plaintiffs suggested that since the order of my colleague Aronovitch dated September 22, 2005 did not specify any particular documents to be included by October 20, 2005 in the Plaintiffs' affidavit of documents, the October 19, 2005 affidavit of documents of the Plaintiffs must be seen as in compliance with said order.
[40] I disagree totally with that position.
[41] As demonstrated earlier, as early as mid February 2005, it is fair to consider that it was a foregone conclusion between the parties that the Plaintiffs' affidavit of documents had to include, inter alia, the requested documents. My colleague in her order of September 22, 2005 did not have to say more than what she said.
[42] By not including the requested documents on October 19, 2005, the Plaintiffs failed to comply with the post-status review scheduling order of September 22, 2005, failed further to comply with rule 223 which should have brought the Plaintiffs to consider on their own the inclusion of the requested documents shortly after the close of pleadings, and aggravated even further an inexcusable delay in prosecuting their case.
[43] Faced with such a state of affairs, the Defendants' counsel was quite justified in sending his December 2, 2005 letter and in filing on January 13, 2006 the motion at bar considering the Plaintiffs' silence following the December 2, 2005 letter. Counsel for the Plaintiffs seemed to suggest that said motion should be viewed as premature since the January 31, 2006 deadline to hold the discoveries was not yet arrived at the time the motion under study was filed.
[44] This argument is specious.
[45] Nothing in the notice of motion filed on January 13, 2006 indicated that said motion was to be heard before January 31, 2006. Had the Plaintiffs, between January 13, 2006 and January 31, 2006, provided the Defendants with the requested documents and suggested discovery dates, one can assume that the Plaintiffs would have then put themselves in a situation where the Defendants would have had to reconsider their position.
[46] For the above reasons, this motion by the Defendants for an order dismissing the Plaintiffs' action on the grounds that there has been undue delay by the Plaintiffs in prosecuting their action was granted with costs by an order dated March 16, 2006.
"Richard Morneau"
Montréal, Quebec
April 18, 2006
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