Nautica Motors Inc. v. Canada (Minister of National Revenue), 2001 FCT 457

                                                                                                                                Date:    20010510

                                                                                                                        Docket No.: T-172-01

                                                                                                       Neutral Citation: 2001 FCT 457

Ottawa, Ontario, this 10^th day of May, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

IN THE MATTER OF an application made pursuant to

Section 18.1 of the Federal Court Act

BETWEEN:

                                                       NAUTICA MOTORS INC.

                                                               506913 N.B. LTD.

                                                                                                                                           Applicants

                                                                         - and -

                                            MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

1.                   The respondent, the Minister of National Revenue, has filed a motion for an extension of time pursuant to Rule 369 of the Federal Court Rules, 1998, SOR/98-106 (Federal Court Rules). The applicants, Nautica Motors Inc. and 506913 N.D. Ltd., argues that the respondent should not be granted a time extension to file its affidavit and exhibits.

2.                   The applicants filed an application for judicial review pursuant to s.18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, on January 30, 2001. The application sets out that the applicants are seeking mandamus to compel the respondent to conclude an audit of the applicants that began in July 1998. Pursuant to Rule 306 of the Federal Court Rules, 1998, the respondent's exhibits and affidavit should have been filed by March 1, 2001.

3.                   The respondent argues that the delay was a result of miscalculation or miscommunication by the respondent's solicitor, which is confirmed by the affidavit of Wynne Slawter, a legal secretary with the Department of Justice in Halifax. In my view, a mere statement that the affidavits and exhibits were overlooked, or dates were miscalculated, is hardly a justification for such a delay. This is particularly so when the evidence of the applicants points to financial prejudice to them, allegedly by reason of the respondent's delay in concluding an audit which began in July 1998.

4.                   It is therefore with reluctance that I consider granting the respondent additional time to file its affidavit and exhibits. My prime motivation, in so doing, is to ensure that a complete record is before the Court when the mandamus application is considered.

                                                                       ORDER

THIS COURT ORDERS that:

1.         The application made on behalf of the respondent for an order to extend the time to allow the respondent to file an affidavit and exhibits is granted.

2.         The respondent shall serve and file its affidavit and exhibits within five (5) days of the date of this order.

3.         Costs shall be assessed against the defendant in the amount of $1,000.00 in any event of the cause and payable forthwith.

                                                                                                                        "Edmond P. Blanchard"               

                                                                                                                                                   Judge