Poile v. Esquega
T-1766-95
MacKay J.
10/6/96
17 pp.
Motion to dismiss application for judicial review for undue delay and application for costs on solicitor and client basis against solicitors for applicants personally-Applicants filed on August 17, 1995 application for judicial review seeking variety of orders, including orders directing funds continue to be held by specified trustees-August 21, Court ordering, on interim basis, funds would continue to be held by existing trustees and requiring application for judicial review be heard on expedited basis-Applicants never filing application record, application for extension of time for filing record or notice of discontinuance-December 7, 1995, respondents applying for dismissal of application for undue delay and for costs on solicitor-client basis-Hearing adjourned at request of applicants' counsel to January 8, 1996 due to inability to obtain instructions from clients-Further adjournment sought by agent for applicants' counsel at January 8 hearing but denied-Motion to dismiss application for judicial review allowed-Undue delay without excuse warranting dismissal-On matter of costs, Federal Court R. 1618 providing costs not to be awarded in connection with judicial review application except where special reasons exist-Respondent councillors entitled to payment by applicants of costs on party and party basis for application for costs, for dismissal of application for judicial review and for all matters arising in relation to application for judicial review since August 21, 1995-Appropriate as respondents put to expense of bringing motions before Court while applicants taking no steps since August-Applicants' responsible to move proceedings forward-Applicants financial inability to continue with matter apparent for some time and should have been communicated-Should have sought discontinuance-Failure to prosecute application for judicial review resulting in successful application for dismissal for delay by respondent may constitute special reason within meaning of R. 1618-Not appropriate situation for costs on solicitor-client basis-Undue delay not constituting misconduct within meaning of Court of Appeal decision in Amway Corp. v. The Queen, [1986] 2 C.T.C. 339 (F.C.A.)-Application not frivolous and vexatious-Also not appropriate to require counsel for applicant to pay costs personally for failure in duty as officer of Court by giving improper advice to applicants as not clear application without merit-Undue delay not attributable to counsel and no evidence of misconduct by counsel-Federal Court Rules, C.R.C., c. 663, R. 1618 (as enacted by SOR/92-43, s. 19).