[1996] 1 F.C. 600
T-527-90
Jonn Morrisonn (Plaintiff)
v.
Her Majesty the Queen in right of Canada (Defendant)
Indexed as: Morrisonn v. Canada (T.D.)
Trial Division, Hargrave P.—Vancouver, December 4 and 13, 1995.
Practice — Dismissal of proceedings — Want of prosecution — No steps taken in action since defence filed in 1990 — Stay of execution of order to sell land in related proceeding in provincial superior court based on statement in affidavit plaintiff instructing counsel to proceed with this action in 1993 — Motion allowed — (1) Delay inordinate, particularly as stay of execution granted based on affidavit — (2) No reasonable explanation for delay — That defendant’s counsel not answering letter from plaintiff’s counsel in 1993 no excuse — Financial difficulties, unemployment possible excuse, but for 1993 affidavit — (3) Defendant likely seriously prejudiced by delay — Witness whose statement 7 1/2 years ago could prove defendant’s defence now unable to give relevant evidence.
Evidence — Statement concerning activities of former employer relating to illegal importation of jewellery prepared by RCMP, signed by witness 18 months after event — Witness now unable to recall specifics — Requirement of contemporaneity more strictly enforced when witness having no independent recollection of events — Probable statement would be rejected as evidence as not contemporaneous, witness having no independent recollection of events, unable to say if allegations true.
This was a motion to dismiss the action for want of prosecution pursuant to Federal Court Rules, Rule 440. In 1989 the Minister of National Revenue determined that the plaintiff was in contravention of the Customs Act. The plaintiff appealed the Minister’s decision by these proceedings begun in February 1990. The Crown filed a defence in July 1990. In 1991 the Minister issued a certificate setting out the amount owed, which was followed by a certificate of judgment in another Federal Court proceeding, whereupon the Attorney General brought a petition in the B.C. Supreme Court for the sale of land belonging to the plaintiff. In opposition to those sale proceedings the plaintiff swore an affidavit stating that in 1990 he had begun this Federal Court action appealing the Minister’s determination of illegal importation, and that in June 1993 he had instructed his lawyer to proceed. Execution of the order to sell the land was stayed pending the outcome of this action. The plaintiff took no further steps to move this matter along. Key to the defence was the evidence of a former employee of the plaintiff. That witness is now unable to recall the specifics of any his then employer’s activities relating to the illegal importation of jewellery. After reviewing the statement, apparently prepared by the RCMP and signed 18 months after the event, he has neither any recollection of the jewellery referred to nor any independent recollection of the allegations therein.
Held, the motion should be allowed.
(1) What is inordinate delay depends on the facts of each case. The delay herein was inordinate, particularly given that the stay of execution proceedings was granted based on the plaintiff’s sworn statement that he had instructed counsel to proceed with the Federal Court proceedings.
(2) The plaintiff failed to give a reasonable explanation for the delay. That the plaintiff took no steps in the proceeding over a five-year period was not excused by the fact that counsel for the defendant did not answer a letter from counsel for the plaintiff in 1993. The plaintiff was well aware in 1993, mid-way through the five-year hiatus, of the passing of time but did nothing. The plaintiff’s financial difficulties and the fact that he had been unemployed for the past two years might have been an arguable excuse, were it not for the 1993 affidavit assuring the B.C. Supreme Court that he would get on with the proceedings.
(3) The defendant was likely seriously prejudiced by the delay because the witness who could have proven the defence was unable to give any relevant evidence. A witness may refresh memory for testifying at trial by using notes or a written statement made by the witness at, or nearly at, the time of the occurrence of an event. As to contemporaneity of the record, the Court will fix a time limit beyond which the memory of the witness may not be trusted. The requirement of contemporaneity must be more strictly enforced in the case of a witness who has no independent recollection. It is very probable that a court would reject the use of the witness’ statement herein on the basis that it was not contemporaneous, particularly because the witness had no independent recollection of the events and was unable to say if the allegations therein were true.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Court Order Enforcement Act, R.S.B.C. 1979, c. 75.
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1.
Federal Court Rules, C.R.C., c. 663, R. 440.
CASES JUDICIALLY CONSIDERED
APPLIED:
Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.).
CONSIDERED:
Waterside Cargo Co-Operative v. National Harbours Board (1986), 3 F.T.R. 189 (F.C.T.D.); Clarke v. B.C. Elec. Ry. Co., [1949] 1 W.W.R. 977 (B.C.S.C.); Archibald v. The Queen (1956), 24 C.R. 50; 116 C.C.C. 62 (Que. S.C.).
REFERRED TO:
Nichols v. Canada et al. (1990), 36 F.T.R. 77 (F.C.T.D.); Patex Snowmobiles Ltd. v. Bombardier Ltd. (1991), 37 C.P.R. (3d) 467; 48 F.T.R. 221 (F.C.T.D.); affd (1993), 48 C.P.R. (3d) 555; 153 N.R. 235 (F.C.A.); Department of Transport v. Chris (Smaller) Transport Ltd., [1989] A.C. 1197 (H.L.); Fraser v. Fraser (1864), 14 U.C.C.P. 70; Fleming v. Toronto R.W. Co. (1911), 25 O.L.R. 317 (C.A.).
AUTHORS CITED
Sopinka, John et al. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
MOTION to dismiss the action for want of prosecution pursuant to Federal Court Rules, Rule 440. Motion allowed.
COUNSEL:
Justis Raynier for plaintiff.
Duff Reilly for defendant.
SOLICITORS:
Justis Raynier, Vancouver, for plaintiff.
Hungerford, Simon, Vancouver, for defendant.
The following are the reasons for order rendered in English by
Hargrave P.: The defendant’s motion to dismiss the plaintiff’s action for want of prosecution, pursuant to Rule 440 [Federal Court Rules, C.R.C., c. 663], is fairly straightforward as to the issues of inordinate delay and an excuse for the delay. The more interesting issue is that of prejudice to the defendant by reason of the delay by the plaintiff in moving along the action.
BACKGROUND
By way of background, in August of 1989, the plaintiff, a Vancouver retail jeweller, was served with a notice of ascertained forfeiture under the Customs Act [R.S.C., 1985 (2nd Supp.), c. 1]. The Royal Canadian Mounted Police had reason to believe that in December of 1986 and in January/February of 1987 the plaintiff, operating as Saks Fourth Avenue and as Norgold Phoenix, had instructed his employee, Martin Berke, to order various items of jewellery from a San Diego, California, supplier for shipment to a Bellingham, Washington, warehouse and from there it is said that the jewellery came to Vancouver without the benefit of customs. The value of the two shipments totalled some $25,000.
In order to establish the importation, to the satisfaction of the Minister of National Revenue, the authorities were apparently able to show the purchase of the jewellery in the United States and its arrival in Canada without passing through customs clearance for, in due course, the 1989 notice of forfeiture was served on the plaintiff. There followed, in November of 1989, the decision of the Minister of National Revenue setting out that the plaintiff was in contravention of the Customs Act. The plaintiff appealed the Minister’s decision by these proceedings begun February 23, 1990. The Crown filed a defence in July of 1990, the last step in this action until fairly recently.
On April 26, 1991, the Minister issued a certificate by which he had determined that the plaintiff owed $58,622.46, together with interest, for the illegal importation of jewellery. This was followed on April 29, 1991, by a certificate of judgment in another Federal Court proceeding, action T-1130-91.
On January 10, 1993, the Attorney General of Canada brought a petition, in the B.C. Supreme Court, for the sale of land belonging to the plaintiff, the sale to be pursuant to a British Columbia Court Order Enforcement Act [R.S.B.C. 1979, c. 75].
In opposition to those sale proceedings Jonn Morrisonn, the respondent in the B.C. Supreme Court, swore an affidavit setting out that he had begun this present Federal Court action in 1990 and that, in June of 1993, he had instructed his lawyer to get on with the Federal Court proceedings appealing the Minister’s determination of illegal importation. As a result Mr. Justice Shaw, of the B.C. Supreme Court, granted the Crown’s application to sell the land, but then stayed execution pending the outcome of this present Federal Court action.
The plaintiff took no steps to move this Federal Court action along, notwithstanding his affidavit in the B.C. Supreme Court proceedings, of June 25, 1993, that he had instructed his lawyer to get on with the Federal Court proceedings.
WANT OF PROSECUTION MOTIONS
On September 1, 1995, the defendant set down a motion to have this Federal Court action dismissed for want of prosecution. That motion was heard by Mr. Justice Rouleau, October 2, 1995. Counsel for the plaintiff appeared as an officer of the Court to advise that he was unable to obtain instructions. Initially Mr. Justice Rouleau ordered that if the plaintiff failed to initiate further proceedings, or take steps to indicate that he wished to pursue the action, by October 31, 1995, the action would stand dismissed for want of prosecution, nunc pro tunc. Subsequently Mr. Justice Rouleau reconsidered and modified his order, allowing the plaintiff until November 6, 1995, to file such pleadings with the Court which he deemed necessary to have the matter restored, but that Her Majesty the Queen, as defendant, be allowed to move for dismissal on the merits, notwithstanding any application brought by the plaintiff.
On November 6, 1995, counsel for the plaintiff wrote to the Court to say, among other things, that he had by then received instructions to proceed, that he had set examinations for discovery for November 16, 1995, and had submitted a joint application for trial. It is not disputed that the joint application is without prejudice to the present motion. In addition, counsel for the plaintiff says that he has prepared a list of documents. Counsel for the plaintiff has also filed the record.
Notwithstanding all of this, the defendant now moves, pursuant to a motion of November 20, 1995, to have the action dismissed for want of prosecution.
CONSIDERATION
In dealing with a motion to dismiss for want of prosecution an underlying concept is not that the dilatory plaintiff, who has inexcusably delayed, ought to be penalized, but rather that the defendant be assured a fair trial of the issues. This is implicit in the criteria to be applied.
The criteria, three in number, to dismiss for want of prosecution, have been clearly established:
1. There has been inordinate delay;
2. The inordinate delay is inexcusable; and
3. The defendant is likely to be seriously prejudiced by the delay.
This is the essence of the three-part test set out by the Court of Appeal in Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229, at pages 268-269. The test has been used by our Court in many instances, for example, Nichols v. Canada et al. (1990), 36 F.T.R. 77 and Patex Snowmobiles Ltd. v. Bombardier Ltd. (1991), 37 C.P.R. (3d) 467; affirmed by the Federal Court of Appeal (1993), 48 C.P.R. (3d) 555. I now turn to the first branch of the test, inordinate delay.
Inordinate Delay
The events giving rise to this action took place in 1986 and 1987. The action itself was commenced in 1990, although I have not considered the time elapsed between the 1986/1987 events and the commencement of the action: see for example Department of Transport v. Chris (Smaller) Transport Ltd., [1989] A.C. 1197 (H.L.) generally and particularly, at pages 1206-1207. The defence was filed in July of 1990. Nothing further occurred until the defendant’s initial motion to strike out, filed September 1, 1995, and heard October 2, 1995, a hiatus of some five years.
Counsel for the plaintiff referred to the delays that occurred in the various cases which counsel for the defendant used in his argument. The delays in those cases ranged between five and eight years. Counsel for the plaintiff submitted that Mr. Morrisonn’s delay, of about five years, was borderline.
As Lord Justice Salmon pointed out in Allen v. Sir Alfred McAlpine & Sons Ltd., supra, at page 268, there is no set tariff of years, more, or less, that constitutes inordinate delay, but that inordinate delay is recognizable when it occurs:
It would be highly undesirable and indeed impossible to attempt to lay down a tariff—so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognise when it occurs.
In the present instance the delay is recognizable as inordinate delay, particularly given the stay of execution proceedings obtained by Mr. Morrisonn in 1993 in the B.C. Supreme Court, for in obtaining that stay Mr. Morrisonn set out in his affidavit that he had given instructions that his counsel get on with the Federal Court proceedings.
Excuse for the Delay
In his affidavit of December 4, 1995, in opposition to the present motion, Mr. Morrisonn, by way of excuse for the delay, says that his counsel wrote to the Crown in November of 1993 in order to determine whether the file was being handled by Mr. Carruthers or Mr. Bolduk, but not receiving a reply, nothing further happened until September of this year.
While I am entitled to consider delaying actions on the part of the defendant, it is not up to a defendant to move an action along in the face of a reluctant plaintiff. In short, that the plaintiff took no steps in the proceeding, over a five-year time span from 1990 to 1995, is not excused by the fact that counsel for the defendant did not answer a letter from counsel for the plaintiff in 1993.
In Waterside Cargo Co-Operative v. National Harbours Board (1986), 3 F.T.R. 189 (F.C.T.D.), Mr. Justice Muldoon, in dealing with a want of prosecution motion, commented that “The equitable rule which comes to mind is that ‘Equity aids the vigilant’” (page 190) and then went to dismiss for want of prosecution, observing that the plaintiff had slept on whatever rights it had for most of five years: in the present instance it would seem that the plaintiff did not sleep on his rights, but rather was well aware, in 1993, mid-way through the five-year hiatus, of the passing of time, but did nothing.
The plaintiff also pleads financial difficulties, together with the fact that he has been unemployed for the past two years. Now this might elicit some sympathy and perhaps could be an arguable excuse, were it not for the plaintiff’s 1993 affidavit assuring the B.C. Supreme Court, in consideration of their granting a stay of the sale of his land, that he would get on with the present Federal Court proceedings. To my mind the plaintiff has failed to give a reasonable explanation for the delay.
Prejudice
The test that I must apply in considering prejudice is whether the defendant is likely to be seriously prejudiced by the delay. In addition to directly shown prejudice, I may also look at any inferences that may be drawn from the delay itself: see Allen v. Sir Alfred McAlpine & Sons Ltd., supra, at page 268.
While there is a general rule that the longer the delay, the greater the likelihood of serious prejudice, I would hesitate to apply that rule, in the case of a five-year delay, without something more, for depriving a plaintiff of a day in court is not to be done lightly.
In the present instance the defendant says that paramount to its defence is the evidence of one Martin Berke, for the Crown must establish the ordering of the jewellery for the plaintiff’s retail operation, from the California seller in December of 1986 and January of 1987, shipment to Bellingham and the presence of the jewellery, which has long since been sold, in the Vancouver store. Key to establishing the ordering of the jewellery from California and its appearance in Vancouver is the evidence of Martin Berke.
Mr. Berke in a current affidavit now says that he can recall none of this, notwithstanding a statement which he signed for the police in June of 1988 and which is attached as an exhibit to his affidavit. To paraphrase, the signed statement sets out that Mr. Berke worked for the plaintiff for some three and a half years between early 1984 and June of 1987, and that on two occasions, in December of 1986 and January of 1987, he ordered jewellery on behalf of Mr. Morrisonn’s proprietorships. He was able to identify these two orders from the invoices of the California vendor. He went on to say, in the signed statement, that while he does not know how the jewellery entered Canada, he saw jewellery from the first order, sometime in December of 1986, when it was being stamped with a trademark by one David Allen in the work shop in the basement of Saks Fourth Avenue in Vancouver. He goes on to say that he also saw the January 1987 order of California jewellery in the basement of Saks Fourth Avenue being worked on by the same David Allen.
In his affidavit in support of this present motion, sworn June 23, 1995, Martin Berke now says that he cannot recall the specifics of any activities of Jonn Morrisonn relating to the illegal importation of jewellery at Saks Fourth Avenue; that while he can recall speaking with a police officer, at least six years ago, about the importation of jewellery into Jonn Morrisonn’s store, Saks Fourth Avenue, he cannot recall the specifics of that conversation, nor can he recall anything about the jewellery; that while he can recall signing a statement in about June of 1988, he cannot recall whether the exhibited signed police statement of June 1988 is the one that he signed; that after reviewing the statement he has no recollection about the jewellery referred to in the statement, and that:
5. After reviewing the Statement I do not have an independent recollection of the allegations in that statement and, as a result, I am unable to say that the allegations in that statement are true, although I can recall that when I originally signed the statement for the police several years ago, I believed what I said in the statement.
Given that unsworn evidence may not be received, short of statutory authorization, the question is whether this memory failure is prejudicial to the defendant, for counsel for the plaintiff submits that Mr. Berke, as witness, can use the signed statement as notes, just as the police may use their notes, to refresh his memory so as to give cogent evidence.
The basic proposition is that a witness may refresh memory, for testifying at trial, using notes or a written statement made by the witness at or nearly at the time of the occurrence of an event: see for example Fraser v. Fraser (1864), 14 U.C.C.P. 70, at page 79 et seq. And typically, this may be the situation of the policeman referred to by counsel for the plaintiff who, over the course of several years, will observe many events and be called upon to give evidence of a specific event a number of months later. In that situation the policeman, as witness, is allowed to look at the notes and say, if such is the case, that he made them when the facts were fresh in memory and that he has no reason to doubt the facts are correctly stated. In that instance the statement of the witness is evidence of the facts recorded in the writing: see for example Fleming v. Toronto R.W. Co. (1911), 25 O.L.R. 317 (C.A.), at pages 325-326. Now this raises two questions. First, whether the record in the present instance is contemporaneous; and second, the acceptability of the testimony of a witness where, as is the case here, the witness has no independent recollection, but would have to base his evidence on a document which he cannot remember signing. There is a good consideration of both of these problems in Sopinka on The Law of Evidence in Canada, published by Butterworths, at page 850 et seq.
Dealing with the contemporaneity of the record, Mr. Justice Sopinka points out that it is not for the witness to say whether his or her recollection was still fresh when the record was made, but rather it is for the court to fix a time limit beyond which the memory of the witness may not be trusted, referring for this proposition to Fraser v. Fraser, supra.
By way of example Mr. Justice Sopinka cites Clarke v. B.C. Elec. Ry. Co., [1949] 1 W.W.R. 977 (B.C.S.C.): in that case the defendant’s traffic inspector refreshed his memory from a statement which he had dictated, describing an accident aboard a streetcar and setting out what the plaintiff had said, nearly two months after the event. The Judge said that he did not think it was open to a witness to refresh his memory from a statement dictated nearly two months after the event, but even if it were admissible, he would not give any weight to the evidence, bearing in mind discrepancies and the plaintiff’s contrary evidence (page 978).
Mr. Justice Sopinka and his co-authors also refer to Archibald v. The Queen (1956), 24 C.R. 50. This is an archetypical police note case in which Mr. Justice Lazure, of the Quebec Superior Court, commented that it was evident that constables, who may observe several matters in the same interval, cannot remember different dates, exact hours and descriptions of persons or places without taking notes, but that to be able to use those notes, when appearing as a witness, the constable “must be in a position to declare that when he compiled or completed his notes in the evening or the next day, what he wrote was true according to his own knowledge and his own recollection.” (page 57). Mr. Justice Lazure then went on to say that “It is clear that if their report has been completed on summary notes several weeks or several months later, their evidence would be greatly weakened, and the judge, considering the circumstances, could refuse to permit the witness to refer to his report” (loc cit. ). Thus, on the basis of the Archibald case, in certain circumstances several weeks’ delay in writing up the statement might disqualify the use of the record. In summing up, and this is particularly apt in the present circumstance, Mr. Justice Sopinka and his co-authors state, at page 851:
The requirement of contemporaneity must be more strictly enforced in the case of a witness who has no independent recollection. In such a case, the witness’ evidence is of little or no assistance with regard to the acuity of his or her recollection at the relevant time. It is, therefore, proper for the court to insist on a prompt recording of events as the only guarantee of accuracy.
In the present instance, it is very probable that a court would reject the use of the statement, apparently prepared by the RCMP and signed by Mr. Berke, on the basis that it was not contemporaneous, but rather had been prepared and signed some 18 months after the event and all the more so because Mr. Berke has no independent recollection of the events.
Turning now to the absence of independent recollection, Mr. Justice Sopinka, at page 851, notes that when a witness, with no independent recollection, bases his evidence on a document, difficulties arise as to whether the document itself is evidence, for the witness has no memory to refresh. The authors go on to point out that where the witness affirms the making of the document and expresses his faith in its accuracy, the document might then be considered evidence, or at least the arguments in favour of making the document evidence outweigh those against its admission (pages 851-852). However, in the present instance, Mr. Berke, by his own sworn affidavit evidence, is currently unable to say if the allegations in the statement are true. Again, it would be highly improbable that a judge, hearing the present case, would look upon the statement as evidence.
All of this leads to the likely conclusion that the defendant has been seriously prejudiced because Mr. Berke, who some seven and a half years ago was certain enough of facts to sign a statement setting out events which would prove the defendant’s defence, can now give no relevant evidence whatsoever. The defendant is in the position of having been seriously prejudiced by the delay brought about by the plaintiff’s failure to prosecute the action diligently. A fair trial of the issues is no longer possible.
The defendant’s motion is allowed. The action is struck out for want of prosecution.