Date: 20001023
Docket: T-1340-00
BETWEEN:
MATTHEW MCBAIN
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The application herein was filed on the 21st of July, 2000. By the Rules, it was deemed served on that date. In fact, it was served on July 25th, 2000 and the service copy with admission of service was filed on that date. The Crown tendered an appearance, which was accepted for filing, on October 4th, 2000, the 10th day after July 25th, but more than 10 days after the deemed date of service. A copy of the notice of appearance was mailed to the applicant on August 2nd, 2000, but did not arrive until August 16th, 2000.
[2] In my view, the notice of appearance should have been refused by the Registry. If it had been, the late service of the originating document would have come to light and no doubt a successful application for leave to serve and file late would have been obtained.
[3] Rule 146 indicates that where a party does not file an appearance within the time limited, no further documents need be served on that party. The applicant could have moved to have the filing set aside or could have consented to the late filing and the application could have proceeded in the ordinary way.
[4] Rule 306 makes no reference to an appearance, but provides that within 30 days after the issuance of a notice of application the applicant shall serve and file his supporting affidavits. Having regard to Rule 146, it may be that serving the affidavits is excused but filing certainly is not. The applicant has failed to file any affidavits. There are occasions when the filing of affidavits is not mandatory, in particular where the applicant does not seek to rely on any. In the circumstances of this case, evidence is apparently required and none has been tendered within the prescribed time limits. The applicant states he was confused by the late filing of the appearance. I note the applicant is quite able to follow rules with respect to appearance, but not to read and comprehend the simple wording of Rule 306. If he is going to take advantage of other people's failings, he must be careful not to fail himself.
[5] The train of events here was started by the apparent failure of the Registry to serve the application and to refuse filing of the appearance. Therefore, I propose to extend to the applicant an opportunity to seek leave to file evidence. In order to get such leave, he will have to show inter alia that he has at least an arguable case for the relief he seeks in the application.
ORDER
[6] The filing and service of the notice of appearance is validated.
[7] The motion for dismissal is adjourned sine die to be brought on again only if the applicant does not file affidavit evidence within 60 days.
[8] The applicant shall have 21 days to serve and file a motion for leave to file affidavit evidence late.
[9] If the applicant is permitted to and does file affidavit evidence, the time limits set in the Rules for the respondent's affidavits and cross-examinations and all other steps shall be measured from the date fixed for filing the applicant's affidavits.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
October 23, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MATTHEW MCBAIN |
Applicant
| THE MINISTER OF NATIONAL REVENUE |
Respondent
MATTER CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: MONDAY, OCTOBER 23, 2000
| WRITTEN SUBMISSIONS: Mr. Matthew McBain |
| The Applicant On His Own Behalf |
| SOLICITORS OF RECORD MATTHEW MCBAIN |
| The Applicant On His Own Behalf |
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20001023
Docket: T-1340-00
Between:
Applicant
- and -
| THE MINISTER OF NATIONAL REVENUE |
Respondent
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