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CIVIL PROCEDURE - Disposition without trial - Dismissal of action - Delay or failure to prosecute - Trials - Conduct of

Monday, July 10, 2017 @ 11:48 AM  

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Appeal by an inmate from the dismissal of his actions for delay. After the appellant’s actions survived a Status Review, the actions became specially managed proceedings under the case management of a prothonotary. Several orders and directions were issued to move the proceedings forward, but the appellant, who was mostly self-represented, did not follow through as instructed. As a result, the respondents filed motions to dismiss the actions for delay. The appellant replied to the motions in French, claiming that he was no longer capable of adequately representing himself in English and that he had been assisted in the past by his former counsel and fellow inmates, who were no longer available to him as he had been moved to a new institution. The Prothonotary issued directions indicating that it was too late for the appellant to raise the issue of language and that he was not satisfied that the appellant was handicapped by language in responding to the motion. The Prothonotary directed the appellant to serve his reply within 14 days. The appellant did not reply and the motions to strike for delay were referred to a judge of the Federal Court for disposition, at which time the appellant’s actions were dismissed for delay. The appellant appealed, arguing that the Federal Court erred in striking his actions for delay without considering the following: his lack of timely access to relevant documents due to the penitentiary settings or the negligent or deliberate obstructions of correctional staff; his lack of understanding of the English language at any point in the litigation process; and his protected rights under the Canadian Charter of Rights and Freedoms (Charter) and the Official Languages Act.

HELD: Appeal allowed. The lack of progress in the actions over the past five years supported their dismissal. However, the failure of the Prothonotary and the Judge to address the appellants’ constitutional right to choose French in the context of his court proceedings amounted to an error of law. An individual could elect to institute proceedings against the Crown in either official language, regardless of their mother tongue. An individual could also re-elect, during the course of the proceedings, and the Crown would be obliged to switch languages as well, unless the Crown established that reasonable notice had not been given. The Prothonotary erred in requiring the appellant to continue in English because he was capable of doing so. The appellant had a right to plead in either official language. The appellant was to serve his motion records in reply to those of the respondent for orders dismissing the actions and the actions were to continue in the language chosen by the appellant.

Ewonde v. Canada, [2017] F.C.J. No. 546, Federal Court of Appeal, J. Trudel, A.F.J. Scott and M.J.L. Gleason JJ.A., May 25, 2017. Digest No. TLD-July102017004