Canada v. Smiling Spruce Farms Ltd., 2003 FC 1238

Date: 20031024

Docket: T-340-92

Citation: 2003 FC 1238

BETWEEN:

                                                        HER MAJESTY THE QUEEN

                                                                                                                                 Respondent (Plaintiff)

                                                                                 and

                                                   SMILING SPRUCE FARMS LTD.

                                     (otherwise known as SMILING SPRUCE FARMS)

                                                    WALTER THEODORE BARTEL

                                           (otherwise known as WALTER T. BARTEL)0

                                              (otherwise known as WALTER BARTEL)

                                                                                                                                Applicant (Defendant)

                                                            REASONS FOR ORDER

GIBSON J.

INTRODUCTION

[1]                 By Notice of Motion filed the 6^th of October, 2003, Walter Theodore Bartel

("Mr. Bartel") appeals the Order of Prothonotary Aronovitch herein, dated the 29^th of September, 2003, and seeks to strike the motion on which that Order was based. In the same motion, Mr. Bartel seeks an order striking the statement of claim herein as it relates to him personally

...due to the undue delay of the Plaintiff in prosecuting the proceeding and due to the extreme prejudice that defendant Walter Bartel is subjected to as a result of [the] delay... .

[2]                 Mr. Bartel's motions came on for hearing before me at Winnipeg, Manitoba on the 20^th of October, 2003. Objections were taken on both sides to certain of the form and process leading up to the hearing. Given that Mr. Bartel, representing himself, was present in the courtroom and the Crown was represented, and given the length of time it has taken to move this matter forward, I relied on Rule 3 of the Federal Court Rules, 1998^[1] to waive the formal and procedural objections and proceeded with the hearing of the motions in order to secure the most expeditious and least expensive determination of the motions on their merits. I was satisfied that neither side was significantly prejudiced by the technical irregularities in form and process.

[3]                 This litigation has a long history. The transaction giving rise to the litigation was entered into between September of 1986 and mid-February, 1987. The plaintiff's statement of claim was issued on the 11^th of February, 1992 and Mr. Bartel's statement of defence was filed the 22^nd of April, 1992. No defence has ever been filed by or on behalf of the corporate defendant. Nothing further transpired until the 6^th of August, 1999 when the matter was brought forward for status review. On the status review, the matter was ordered to be specially managed and, by order of the 26^th of January, 2000, Prothonotary Aronovitch was designated as the Case Management Judge.

[4]                 Since her designation as Case Management Judge, Prothonotary Aronovitch diligently pursued her responsibility but, by the spring of 2003, the matter had still not been set down for trial.

[5]                 In a direction issued the 24^th of March, 2003, Prothonotary Aronovitch, following a pre-trial hearing, provided the parties with an opportunity to make submissions in writing prior to resumption of the pre-trial conference. For whatever reason, Mr. Bartel provided no submissions in writing within the time provided. In the result, Prothonotary Aronovitch issued a further direction on the 25^th of August, 2003, in the following terms:

As Mr. Bartel has chosen not to continue his defence of this action, the Crown may move to strike the defence by no later than September 4, 2003.

[6]                 Mr. Bartel did not respond to this further direction. On the 3^rd of September, 2003, the Crown moved to strike Mr. Bartel's defence. Once again, for reasons that Mr. Bartel explained at some length in the hearing before me, he again did not respond until he applied for directions by written request dated the 26^th of September. In the result, Prothonotary Aronovitch issued the order of the 29^th of September, 2003, striking Mr. Bartel's defence, which is here under appeal.      

THE MOTION IN APPEAL OF PROTHONOTARY ARONOVITCH'S ORDER STRIKING MR. BARTEL'S DEFENCE.

[7]                 The test to be applied on a motion appealing an order of a prothonotary was established in Canada v. Aqua-Gem Investments Ltd.^[2]    That test was recently endorsed by the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU-Line N.V.^[3], where Justice Bastarache, for the Court, wrote at paragraph 18:

Discretionary orders of prothonotaries ought to be disturbed by a motions judge only where (a) they are clearly wrong, in the sense that the exercise of discretion was based upon a wrong principle or a misapprehension of facts, or (b) in making them, the prothonotary improperly exercised his or her discretion on a question vital to the final issue of the case... .

[8]                 In Sawridge Band v. Canada^[4], Justice Rothstein, for the majority, adopted the following words from a decision of the Alberta Court of Appeal in relation to an appeal from a prothonotary where the prothonotary is acting as a case management judge:

We have said before, and we repeat, that case management judges in these complex matters must be given some "elbow room" to resolve endless interlocutory matters and move these cases on to trial. In some cases, the case management judge will have to be innovative to avoid having the case bog down in a morass of technical matters. Only in the clearest cases of mis-use of judicial discretion will we interfere.

[9]                 On the facts before me, the decision under appeal is not an order designed to move this action on to trial. Quite the contrary, it has the impact of effectively bringing the defence of the action to an end. That being said, I am satisfied that the principle enunciated by Justice Rothstein is nonetheless applicable. Where a case management prothonotary, who is much more familiar with the factual history of a matter than a judge sitting in appeal from an order of a case management prothonotary is likely to be, the judgment of the case management prothonotary must be respected in cases where he or she determines that, for whatever reason, it is no longer in the interests of justice that an action, or the defence of an action, should be allowed to continue. Put another way, a case management prothonotary is in a much better position than a judge sitting in appeal of his or her order, to determine when continued pursuit of defence of an action has become nothing more than an abuse of the process of this Court.

[10]            While Prothonotary Aronovitch issued no reasons to support her decision to strike Mr. Bartel's statement of defence in this action, it is not the first time that that statement of defence has been struck. It was once before struck and reinstated. Still, the action made little effective progress toward trial. That Prothonotary Aronovitch determined in all of the circumstances and based upon her experience as case manager of the action that Mr. Bartel bore responsibility for that reality and therefore his statement of defence should again be struck, I cannot conclude was one of the class of "...clearest cases of mis-use of judicial discretion..." with which I should interfere. Thus, despite the able submissions by Mr. Bartel on his own behalf, I advised Mr. Bartel and counsel that Mr. Bartel's appeal by way of motion from the Order of Prothonotary Aronovitch dated the 29^th of September, 2003, would be dismissed.

MR. BARTEL'S MOTION TO STRIKE THE PLAINTIFF'S STATEMENT OF CLAIM

[11]            As indicated earlier in these reasons, the statement of claim herein was issued on the 11^th of February, 1992. It was served on the defendants on the 25^th of March, 1992. Thereafter, apart from the filing of Mr. Bartel's statement of defence on the 22^nd of April, 1992, the matter languished until it was brought forward for status review on the initiative of this Court on the 6^th of August, 1999. Of particular note is the fact that, in that period, Mr. Bartel made no effort to strike the claim against him by reason of delay.    Case management ensued. Mr. Bartel's statement of defence was struck once and reinstated. It was then struck again. Despite these indications to Mr. Bartel that relief against delay was available through the Court, Mr. Bartel made no effort to seek dismissal of the action for delay or want of prosecution until after the second order striking his statement of defence.

[12]            The classic test to be applied on a motion to strike a statement of claim comprises three elements:    first, whether there has been inordinate delay; secondly, whether the delay is inexcusable; and thirdly, whether the defendants are likely to be seriously prejudiced by the delay^[5].

[13]            In Viacom Ha! Holding Co. v. Jane Doe^[6], Justice Pelletier, then of the Trial Division of the Federal Court of Canada, wrote at paragraph [35]:

On balance, there has been delay in moving this matter forward but it is delay to which the defendants and the Court have contributed. In the circumstances, it would not be appropriate to dismiss the claim for delay or for abuse of process. This problem is better handled through the case management process.

While contribution by this Court to the delay in moving this matter forward has not been alleged, the delay can certainly be considered to have been contributed to by Mr. Bartel. The problem of delay was handled through the case management process when Prothonotary Aronovitch for a second time ordered Mr. Bartel's statement of defence struck. She could equally have ordered the statement of claim struck but, the Court can only assume, her conclusion was that at least since case management was introduced in relation to this action, the wiser course of action was to attribute delay to Mr. Bartel and strike his statement of defence. As to delay prior to the institution of case management, if this Court had considered such delay to warrant striking the statement of claim, that could have happened at a much earlier stage. It obviously did not.

[14]            In the circumstances, given Prothonotary Aronovitch's determination to strike Mr. Bartel's statement of defence and my determination not to interfere with the Order of Prothonotary Aronovitch, I determined not to strike the plaintiff's statement of claim and so advised counsel and Mr. Bartel following argument on that issue.                                                                                                                

COSTS

[15]            Both sides before me sought costs. The plaintiff having been entirely successful on the two motions before me, costs would normally follow that result in favour of the plaintiff. That being said, given the long history of this action, the fact that Mr. Bartel is self represented, and the fact that delay in bringing this matter to trial is attributable at least in part to the plaintiff as well as to Mr. Bartel, I exercise my discretion to order no costs of the motions before me.                                                                                                                                                                                            SUMMARY OF CONCLUSIONS

[16]            In the result, Mr. Bartel's appeal by way of motion from the Order of Prothonotary Aronovitch herein dated the 29^th of September, 2003 will be dismissed. Mr. Bartel's motion to strike the plaintiff's statement of claim will also be dismissed. There will be no order as to costs of the motions before me.

___________________________

      Judge

Ottawa, Ontario

October 24, 2003

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.: T-340-92

STYLE OF CAUSE: HER MAJESTY THE QUEEN v. SMILING SPRUCE FARMS LTD.

PLACE OF HEARING                                    MOTION HEARD IN WINNIPEG, MANITOBA

DATE OF HEARING:                                     October 20, 2003

REASONS FOR ORDER                                THE HONOURABLE MR. JUSTICE GIBSON

DATED:                      October 24, 2003

APPEARANCES:

Chris Bernier                 For the Respondent (Plaintiff)

Mr. Walter Bartel         Applicant (Defendant) on his own behalf

SOLICITORS OF RECORD:

Chris Bernier                For the Respondent(Plaintiff

Department of Justice

Saskatchewan Regional Office

Saskatoon, SK S7K 7E6

Mr. Walter Bartel         Applicant (Defendant) on his own behalf