Mazhero v. Canada (Canada Industrial Relations Board), 2004 FCA 151

Date: 20040407

Docket: A-185-01

Citation: 2004 FCA 151

Present:           Sharlow J.A.

BETWEEN:

                                                           FRANCIS MAZHERO

                                                                                                                                            Applicant

                                                                           and

                                     CANADA INDUSTRIAL RELATIONS BOARD,

                                        NYCOLE TURMEL AND PATRICIA DAWS

                                                                                                                                      Respondents

                                        Dealt with in writing without appearance of parties.

                                      Order delivered at Ottawa, Ontario on April 7, 2004.

REASONS FOR ORDER BY:                                                                                   SHARLOW J.A.

Date: 20040407

Docket: A-185-01

Citation: 2004 FCA 151

Present:           Sharlow J.A.

BETWEEN:

                                                           FRANCIS MAZHERO

                                                                                                                                            Applicant

                                                                           and

                                     CANADA INDUSTRIAL RELATIONS BOARD,

                                        NYCOLE TURMEL AND PATRICIA DAWS

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER                    

Sharlow J.A.

[1]                This matter was commenced on March 19, 2001 when Mr. Mazhero filed a notice of application for judicial review in relation to a grievance made by Mr. Mazhero against his former employer, the Yukon Territorial Government. A requisition for hearing has been filed and the Judicial Administrator is preparing to schedule a hearing date. Before me are a number of interlocutory matters. In his most recent letter to the Court on April 1, 2004, Mr. Mazhero informally requested the Judicial Administrator to schedule a special sitting of this Court to deal with these matters. That request is denied.

[2]                I will begin by describing the principal documents submitted to the Court in recent weeks.

[3]                On February 11, 2004, Mr. Mazhero sent to the Court by fax a motion record containing a document entitled "Ex Parte Notice of Motion" seeking an order staying this proceeding and allowing the application for judicial review on the basis that "an inordinate and inexcusable delay in processing the application and in setting it down for a hearing has caused prejudice to the applicant that amounts to a denial of natural justice." This motion is somewhat misconceived. A stay of proceedings is generally a remedy sought by a respondent to preclude the granting of a remedy sought by an applicant. An order staying the proceedings would effectively nullify Mr. Mazhero's application for judicial review, which is not what he intends. I will treat this motion as a motion for summary judgment.

[4]                The February 11, 2004 motion record also contains an affidavit, apparently executed by Mr. Mazhero on February 11, 2004, indicating that he had served the motion record on the respondents by mail on the same day. Mr. Mazhero lives in Chesterfield Inlet, and the respondents are in Ottawa and Whitehorse.

[5]                The cover letter sent with the motion record on February 11, 2004, asked the Administrator for leave under Rule 71(2) to file the motion record by fax because of the risk of weather delays if he attempted to file it by mail. On February 16, 2004, Malone J.A. directed that the request to file the motion record by fax be denied. The motion record was submitted in hard copy and filed as of February 18, 2004.

[6]                By letter dated February 17, 2004, the respondent Canada Industrial Relations Board (CIRB) advised the Court that they had been served with the notice of motion dated February 11, 2004, and sought directions as to how the motion would be dealt with. By letter dated February 20, 2004, counsel for the respondent Nycole Turmel also requested directions. On February 20, 2004, Malone J.A. directed all respondents to respond to the motion on or before February 27, 2004. The Court notified all parties of that direction by letter dated February 23, 2004.

[7]                On February 25, 2004, Mr. Mazhero submitted a letter to the Court by fax. Much of the letter is illegible, apparently due to a problem with the fax machine. However, it appears that Mr. Mazhero wished an explanation as to why Malone J.A. was asked to issue a direction regarding the faxing of his motion record when only the consent of the Administrator was required under Rule 71(2).

[8]                On February 26, 2004, the CIRB filed its response to the motion to stay the proceedings and grant summary judgment.

[9]                An amended version of Mr. Mazhero's February 11, 2004 motion record was filed on February 27, 2004. The February 27, 2004, motion record contains the same notice of motion (the motion for summary judgment), but is amended to refer to events that occurred after February 11, 2004. For example, it contains an affidavit that is similar to the affidavit previously filed except that the new affidavit includes references to Mr. Mazhero's February 11, 2004, letter to the Court, the February 16, 2004, direction, the February 17, 2004, letter to the Court from the CIRB, and the February 20, 2004, letter to the Court from counsel for Ms. Turmel.

[10]            On February 27, 2004, Mr. Mazhero filed a notice of motion to seek an order setting aside the February 16, 2004, direction on the basis that it was made without jurisdiction and caused prejudice to Mr. Mazhero.

[11]            Also on February 27, 2004, Mr. Mazhero sent the Court a letter to express his views on a number of matters. He says, among other things, that the February 20, 2004, letter from counsel for Ms. Turmel was misleading.

[12]            On February 29, 2004, Mr. Mazhero sent the Court a letter to express his view that the respondents had failed to comply with the rules governing the change or appointment of solicitors. The letter states that he is "relying upon Rule 58(2)" in bringing this matter to the Court's attention.

[13]            On March 1, 2004, Mr. Mazhero sent to the Court by fax a document entitled "Addendum to the written submission of the applicant Francis Mazhero in respect of the ex parte notice of motion dated February 11 and 27, 2004". In this document, he argues that the failure of the respondents to comply with the rules relating to the change or appointment of solicitors is a fatal procedural error entitling him to succeed in his application for judicial review.

[14]            On March 2, 2004, Mr. Mazhero sent to the Court by fax a letter in which he asks for copies of all notices of change or appointment of solicitors filed by any of the respondents. On March 7, 2004, Mr. Mazhero faxed to the Court a copy of a letter he had sent to counsel for the respondents relating to notices of change and appointment of solicitors.

[15]            On March 7, 2004, Mr. Mazhero submitted an unsigned amended addendum to his motion record relating to the motion for summary judgment, with a cover letter asking that it be taken into account.

[16]            On March 9, 2004, counsel for Ms. Turmel faxed a letter to the Court seeking directions as to how and whether it should respond to the material submitted by Mr. Mazhero after the filing of his motion for summary judgment.

[17]            On March 17, 2004, Mr. Mazhero faxed a letter to the Court indicating his intention to commence contempt proceedings against all respondents.

[18]            On March 17, 2004, counsel for Ms. Turmel sent a letter to the Court to advise of a change of the name of his firm. The letter refers to this matter, as well as all other matters in which that firm is solicitor of record.

[19]            On March 19, 2004, Mr. Mazhero sent to the Court by fax a notice of motion to seek an order that the Chair of the CIRB, Ms. Turmel, and the respondent Patricia Daws, show cause why they should not be held in contempt of Court. Hard copies of this motion record were submitted and were filed on March 30, 2004.

[20]            On March 22, 2004, Mr. Mazhero submitted an addendum to his written submissions relating to his motion for a show cause order, replying to the points raised in a letter dated March 12, 2004, letter from the CIRB.

[21]            On March 23, 2004, Mr. Mazhero faxed a letter to the Court containing further submissions relating to the question of notices of change and appointment of solicitors.

[22]            On March 24, 2004, Mr. Mazhero faxed a letter to the Court advising that he had submitted to the CIRB a request for information under the Access to Information Act, R.S.C. 1985, c. A-1, to obtain records relating to his complaint against the CIRB or this proceeding.

[23]            On March 29, 2004, the CIRB sent the Court a letter which, among other things, asks for directions as to whether or not it is required to respond to the motion for a show cause order.

[24]            On April 1, 2004, Mr. Mazhero faxed a letter to the Court in which he lists all of the documents signed by counsel for the various respondents that he believes are improper because of the absence of a notice of change or appointment of solicitor.

[25]            While reviewing these matters, I made the following direction:

[26]            As I understand it, there are now three motions before me. They are the motion which I will treat as a motion for summary judgment, the motion to set aside the February 16, 2004, direction, and the motion for a show cause order. I will deal with each of these motions in turn.

Motion for summary judgment

[27]            As indicated above, Mr. Mazhero seeks an order granting his application for judicial review with costs on the basis of inordinate and inexcusable delay which caused prejudice to Mr. Mazhero. He argues that the Court has lost jurisdiction to hear and determine the application. The CIRB has filed a response to this motion. The other respondents have not.

[28]            Mr. Mazhero says that, but for the delays in this matter, it would have been resolved in May or June of 2001, and he would still be living and working in Whitehorse, instead of being uprooted. He says he has been forced to work on this case almost every day since March 19, 2001, and that he is now unemployed. He says that even if his application is successful, the matter would be sent to the CIRB for a hearing on matters that occurred in Whitehorse over four years ago, and witnesses may now be unavailable or be unable to recall the events. He says that in any case his reputation cannot be restored.

[29]            Generally, no remedy can be granted for undue delay in the absence of evidence that establishes prejudice. Mr. Mazhero's submissions in relation to prejudice are stated only in his submissions, and are unsupported by affidavit evidence. His belief as to what might have happened if there had been no delay in this matter is speculation. That is a sufficient reason to deny this motion. However, I will also consider Mr. Mazhero's submissions on the causes of the delay.

[30]            Mr. Mazhero argues that there are three periods of time that need to be considered. The first period consists of approximately six months between his initial complaint to the CIRB, on or about October 2, 2000, and the date on which the CIRB was served with his application for judicial review, on or about March 24, 2001. I have no basis for concluding that there was anything inordinate about the delay during that period, if indeed it was a delay.

[31]            The second period consists of approximately 29 months between June 2001 and October 2003. During that time there appears to have been some controversy as to whether Mr. Mazhero's application should have been commenced in the Trial Division rather than the Appeal Division. That was resolved on October 30, 2001, when Rothstein J.A. ordered the matter to proceed in the Appeal Division, which is now the Federal Court of Appeal. Rothstein J.A. also set new time limits for the filing of documents, which were followed by the CIRB. Its record was filed on February 4, 2002. It had no further filing obligations with respect to the application for judicial review. Thus, the delay to that point, to the extent that it was caused by any act or omission by the CIRB, was explained to the satisfaction of Rothstein J.A., and excused. I have no basis for reaching a contrary conclusion.

[32]            It appears that Mr. Mazhero also filed a number of motions during this second period, including a motion for leave to file new evidence and a supplementary argument, which was dismissed on July 18, 2002, a motion relating to allegations of contempt of court, which was dismissed on July 30, 2003, and a motion to delay the filing of a requisition for hearing, which was dismissed on October 9, 2003. By that last order, Mr. Mazhero was required to file the requisition for hearing by October 21, 2003. Although Mr. Mazhero missed that deadline, he offered an explanation which was accepted by Décary J.A., who directed on December 9, 2003, that the requisition for hearing be accepted for filing as of November 10, 2003.

[33]            Mr. Mazhero argues that court staff was responsible for some of the delay during this period. There does appear to have been some confusion in relation to the filing of documents. Part of the confusion was that Mr. Mazhero attempted to file a requisition for hearing on the same day as his applicant's record, which meant that it was submitted prematurely because the respondents' records had not yet been filed. Part of the confusion was the result of a notice of status review issued on October 23, 2002, which was not served on Mr. Mazhero as it should have been. Mr. Mazhero says that he was unaware of the notice of status review until April 30, 2003. He argues that the notice was "concealed" from him. However, my review of the Court file indicates that the failure to file was a clerical error only. There is no basis for Mr. Mazhero's allegation that the Court staff deliberately concealed anything from him.

[34]            The third period consists of the approximately five months between November of 2003 and the present. Mr. Mazhero argues that, pursuant to Rule 314(2), the Court should have scheduled his hearing within 90 days of the filing of the requisition for hearing. Mr. Mazhero is misinterpreting the Rule. It requires parties to state, in the requisition for hearing, the dates within the next 90 days when they are available for a hearing. The purpose of that provision is to ensure that the parties keep themselves available for the stipulated dates in case the hearing is scheduled for one of the stipulated dates. That Rules does not oblige the Court to accept any of those dates.

[35]            Mr. Mazhero alleges "procedural manipulations" by the respondents and court officials to delay this proceeding and possibly to affect its outcome. The record discloses no evidence to support that allegation. On the contrary, there is no evidence of bad faith or improper motives on the part of any of the respondents or the Court staff.

[36]            I note also that the propensity of Mr. Mazhero to file numerous motions, and to attempt to supplement his motions continually by letters and amendments, has contributed to the delay of which he now complains. I do not fault Mr. Mazhero for this, as he is entitled to assert his rights as he sees fit. However, the fact is that he has chosen to proceed in a manner that tends to discourage, rather than encourage, a speedy resolution of the issues he wishes to raise in his application for judicial review.

[37]            After a careful review of the record and the submissions of Mr. Mazhero, I am not persuaded that the various causes for the delays in this matter have been so egregious that Mr. Mazhero should be entitled to an order granting him, without a hearing, the remedy sought in his application. The motion to stay the proceedings and to make the order sought by Mr. Mazhero in his application for judicial review will be dismissed.

Motion to set aside the February 16, 2001 direction

[38]            The premise underlying this motion is that Rule 71(2), which permits the filing of certain lengthy documents by fax with the consent of the Administrator, precludes the Administrator from seeking the direction of a judge with respect to a request for consent. That premise is incorrect. The Administrator is entitled to request the direction of a judge in such matters, and a judge who makes a direction in response to such a request has the jurisdiction to do so. The motion for an order setting aside the February 16, 2004, direction will be dismissed.

Motion for a show cause order

[39]            Mr. Mazhero alleges that Ms. Turmel and Ms. Daws have breached the February 23, 2004 direction, that the CIRB and Ms. Turmel have failed to comply with the Rules relating to the filing of notices of change or appointment of solicitor, and that the request for directions in the March 9, 2004, letter to the Court from counsel for Ms. Turmel is an abuse of process.

[40]            It is obvious from the material filed by Mr. Mazhero that his allegations rest on a number of misunderstandings about the February 23, 2004, direction and the Rules. Again, I do not fault Mr. Mazhero for this, as such questions turn in part on principles that, while well established in law, are sometimes implicit rather than stated.

[41]            As of this date, the deadline for responding to Mr. Mazhero's motion for a show cause order has not yet expired and no responses have been filed, though all respondents have been served. I am dealing with this motion without hearing from the respondents because there is no case for them to answer. This motion will be dismissed, for the following reasons.

1. The February 23, 2004, direction

[42]            Mr. Mazhero alleges that the respondents Nycole Turmel and Patricia Daws wilfully breached the February 23, 2004, direction, which reads as follows:

[43]            This direction was actually made on February 20, 2004, but it was sent to the parties on February 23, 2004. The motion referred to in this direction is the motion of Mr. Mazhero that I have treated as a motion for summary judgment.

[44]            Generally, a respondent is not compelled to respond to a motion made by an opposing party, but if a response is to be made, it is required to be made within a stipulated time limit. In this case, the respondents could not have known whether Mr. Mazhero's motion would even be accepted for filing, because it was a motion for summary judgment that was filed after the requisition for hearing. That is an unusual way of proceeding, and in the circumstances the CIRB and Ms. Turmel were justified in seeking directions. The fact that the respondent Patricia Daws did not seek directions or file a response indicates only that she wished to make no submissions in relation to the motion even if it were to be considered.

[45]            Mr. Mazhero is interpreting the February 23, 2004, direction as though it were intended to compel all respondents to file a response to Mr. Mazhero's motion, whether they wished to do so or not. That is not the correct interpretation. The direction did not compel any respondent to file a response to Mr. Mazhero's motion for summary judgment. It was intended to indicate only that Mr. Mazhero's motion would be dealt with by the Court even though a requisition for hearing had already been filed and that, for any respondent who wished to file a response, the deadline would be February 27, 2004. Therefore, Ms. Turmel and Ms. Daws did not breach the direction when they exercised their right not to respond.

2. Alleged failure to file notices of change or appointment of solicitors

[46]            Mr. Mazhero alleges that the CIRB and Ms. Turmel knowingly failed to appoint as solicitors the individual lawyers who are currently representing those parties.

[47]            The primary purpose of the Rules requiring formal notice of a change or appointment of a solicitor is to ensure that the Court and all other parties are provided with the information they require to serve documents. If documents are served in accordance with the information in the Court file (and the applicable Rules relating to service), the serving party has done all that needs to be done in relation to service. If it turns out that the information in the Court file is incorrect because of a failure by the served party to provide formal notice of a relevant change, the result is a disadvantage only to the party who failed to provide the correct information. And in any event, if documents actually reach the person who should have them, the recipient or the Court may waive any deficiency in relation to service.

[48]            It follows that a notice of change of solicitor is normally not required when the name of a firm has changed, as long as material sent in either name can reasonably be expected to reach the person to whom it is addressed. Nor is a notice of change of solicitor required when a different lawyer within a law firm assumes primary responsibility for a file or, in the case of a party represented by in-house counsel, when a different lawyer within the party's legal department assumes primary responsibility for the file, as long as such changes do not affect the efficacy of service.

[49]            It is apparent from the Court file that the CIRB and Ms. Turmel are now and have always been represented by the same solicitor of record, although different lawyers have taken the lead at different times. In the case of the CIRB, the solicitor of record is its own in-house legal department. In the case of Ms. Turmel, it is the firm formerly named Raven, Allen, Cameron & Ballantyne and now called Raven, Allen, Cameron, Ballantyne & Yasbeck LLP/r.l.s. None of these changes required the filing of a notice of change or appointment of solicitors.

[50]            Nor have any of these changes interfered in the orderly administration of justice in this case, impaired the authority or dignity of the Court, affected the validity of the filings made on behalf of the CIRB or Ms. Turmel, or affected the validity of any order or direction made by the Court.

3. The March 9, 2004, request by Ms. Turmel for directions

[51]            Mr. Mazhero alleges that the March 9, 2004, letter to the Court from counsel for Ms. Turmel is made in bad faith, is frivolous, vexatious and an abuse of process, that it lacks candour, and the administration of justice has been compromised. These allegations are in substantial part based on the same misunderstandings that I have referred to above. It is based as well on Mr. Mazhero's mistaken belief that a party can or should be precluded from seeking directions. There is no basis for any of these allegations.

Conclusion

[52]            Mr. Mazhero's three motion will be dismissed, but without costs. There was only one response filed by a respondent to any of these motions (the response of the CIRB in relation to the motion for summary judgment) and the CIRB did not seek costs.

                          "K. Sharlow"              

J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               A-185-01

STYLE OF CAUSE:                                                               FRANCIS MAZHERO and CANADA INDUSTRIAL RELATIONS BOARD, NYCOLE TURMEL, AND PATRICIA DAWS

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                              SHARLOW J.A.

DATED:                                                                                  7 APRIL 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: