Gordon v. The Queen, 2003 TCC 228

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Motion heard on April 1, 2003 at Victoria, British Columbia

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ORDER

          Upon motion for an Order extending the time set out in the Order of Bowman, A.C.J., dated November 29, 2002, within which a Reply to the Notice of Appeal in this matter may be served;

And upon hearing counsel for the parties;

The Respondent's motion is dismissed and costs are awarded to the Appellant

in the lump sum of $400, in accordance with the attached Reasons for Order.

Signed at Saskatoon, Saskatchewan, this 14th day of April 2003.

J.T.C.C.

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REASONS FOR ORDER

Beaubier, J.T.C.C.

[1]      This motion by the Respondent for an Order extending the time within which to file a Reply to the Notice of Appeal was heard at Victoria, British Columbia on April 1, 2003.

[2]      The facts in this matter are as follows:

1.        On November 29, 2002 Bowman A.C.J. issued an order upon the application of the Respondent that -

(a)       This matter was moved from the Informal Procedure to the General Procedure.

(b)      The Respondent was granted 30 days from November 29, 2002 in which to file a Reply.

2.        Then, according to paragraphs 9, 11, 12, 13, 14, 16 and 17 of an affidavit filed by counsel for the Respondent, the following occurred:

9.          In handling this matter, I did not open a specific file in the British Columbia Regional Office of the Department of Justice respecting the Appellant. Rather, I maintained all the documents that I prepared in the general Coordination Informal Files file which we maintain respecting our Informal Procedure Reply review duties.

...

11.        I believe that the Court sent a copy of the Order to the British Columbia Regional Office of the Department of Justice on or shortly after December 2, 2002. However, the cover letter that apparently accompanied the Order was not made out to my attention. Attached to this affidavit and marked as Exhibit "B" is a copy of that cover letter.

12.        I am advised by Ms. Ida Majometano, a clerk employed in the British Columbia Regional Office of the Department of Justice, and believe to be true that she believes she received a copy of the Order along with its accompanying notice some time shortly after it was issued. Given her practice, she would have searched our computerized filing system and, not having found a file opened respecting this appeal, determined from the style of cause indicated on the Order that it was an appeal under the Informal Procedure. That being the case, she would have considered the task of filing the Reply to have fallen to the Agency and thus forwarded the Order to Mr. Stea as the instructing Litigation Officer.

13.        I am advised by Mr. Stea and believe to be true that sometime shortly after the Order was issued he received a copy of it from Ms. Majometano. Given the circumstances he considered that the Department of Justice had the task of filing the Reply and therefore he did not file it himself.

14.        I did not receive a copy of the Order when the Court issued it.

...

16.        On February 6 or 7, 2003, I asked my secretary, Ms. Agnès Perillié to contact the Court Registry to determine the status of the Motion.

17.        I am advised by Ms. Perillié and believe to be true that, pursuant to her inquiry on my behalf, on February 7, 2003, she received a faxed copy of the Order from the Court. She provided the copy of the Order to me, and that is the first time that I became aware of its existence.

[3]      Counsel for the Appellant could not consent to an extended time to file the Reply and this motion followed.

[4]      In the Court's view the cause of this delay is administrative oversight or error and for that reason an extension should not be granted. Foundation Instruments Inc. v. The Queen, 92 DTC 1291 (T.C.C.) and 93 DTC 5508 (F.C.A.).

[5]      In particular, subrule 44(2) provides that if a Reply is not filed within an applicable period, the facts contained in the Notice of Appeal are presumed true for the purposes of the appeal. That presumption is rebuttable. In these circumstances, granting an extension of time in this case would prejudice the rights of the Appellant.

[6]      In a written Response, the Appellant asked that in view of the foregoing, he should be granted judgment pursuant to Rule 63. In the Court's view such an application should be the subject of a separate motion.

[7]      Therefore, the motion is dismissed. The Appellant is granted costs which are fixed at $400 to be paid in any event of the cause.

Signed at Saskatoon, Saskatchewan, this 14th day of April 2003.

J.T.C.C.

                                                          300-754 Broughton Street

                                                          Victoria, B.C. V8W 1E1