Date: 20000605
Docket: T-530-96
BETWEEN:
MICHAEL O"SULLIVAN
Applicant
- and -
THE MINISTER OF ENVIRONMENT CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion under Rule 51 of the Federal Court Rules, 1998, on to appeal the order of Prothonotary Roger R. Lafrenière, released on March 10, 2000.
[2] This order dismissed the motion of the applicant for an extension of time to file the applicant"s record and also dismissed the proceeding in its entirety.
ISSUE
[3] Did the prothonotary err in law in dismissing the application for an extension of time to file the applicant"s record and in dismissing the application for judicial review?
ANALYSIS
[4] The Court of Appeal established in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, the parameters for reviewing a decision of a prothonotary:
| Discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: a) they are clearly wrong in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or b) they raise questions vital to the final issue of the case. |
| Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. |
[5] In my view, it is clear that the order of Prothonotary Lafrenière raises questions vital to the final issue of the case, given that the order dismissed the application; therefore, I have to exercise my own discretion de novo.
[6] Relating to the extension of time, this Court has established, over the years, criteria on when the parties should be granted extensions of time.
[7] The party that is requesting an extension of time has to justify the delay for the whole period.
[8] The prothonotary has followed the criteria elaborated by Justice Reed in Chin v.M.E.I. (1994), 69 F.T.R. 77, p. 80:
| ...When an Application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel of the applicant, for example, illness or some other unexpected or unanticipated event. |
| I know that courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purposes are one. It is too easy a justification for non compliance with the Rules for counsel to say the delay was not in any way counsel by my client and if an extension of time is not granted my client will be prejudiced. |
[9] The prothonotary considered the explanations provided by the applicant for the delay as wholly unsatisfactory.
[10] In my view, the prothonotary has not made any error using his discretion as he did. I do not see any justification to intervene on that basis.
[11] Relating to the other major element of the prothonotary"s discretion, I do not think that the prothonotary made a reviewable error in dismissing the application.
[12] The prothonotary"s decision to refuse the applicant"s extension of time to file his record implied that the record was not filed. The prothonotary considered that the filing of the applicant"s record under Rule 309, is an integral procedural step.
[13] The prothonotary decided that in the absence of any records from the parties, the application cannot continue and should be dismissed.
[14] The applicant suggests that there was already a record filed and that the prothonotary should have determined that the documents that accompanied the originating notice of motion filed on March 5, 1996 constitute a record, an imperfect record, but a record which he asked the Court to improve with an "amended" factum.
[15] Pursuant to the documents filed, the applicant has never mentioned an amended record or amended factum.
[16] Counsel for the applicant tried to file an applicant"s factum which was refused by the prothonotary on February 1, 2000 pursuant to the minutes of the hearing.
[17] Counsel for the applicant has filed a motion dated February 11, 2000 for an order extending the time to serve and file the applicant"s record (my underlining).
[18] In my view, the applicant failed to convince me that the documents filed on March 5, 1996 should be considered as a record pursuant to the Federal Court Rules.
[19] The prothonotary has not made an error of law in concluding that the application should be dismissed in light of the fact that there was no record in the file.
[20] For these reasons, the appeal is dismissed.
Pierre Blais Judge
OTTAWA, ONTARIO
June 5, 2000
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