Date: 20001219
Docket: 00-T-39
BETWEEN:
SOUFIANE M'HAMMED
Plaintiff
- and -
VIA RAIL CANADA INC.
Defendant
- and -
CAW (Union)
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion pursuant to s. 369 of the Federal Court Rules 1998.
[2] The defendant's motion is asking the Court to quash the order made on October 2, 2000, granting an extension of sixty days for filing an application for judicial review of the decision by Daniel Naubert of Via Rail on October 13, 1999.
[3] I have reviewed the memorandum submitted by the defendant and the reply record to the motion filed by the plaintiff.
[4] According to the affidavit by John Nicolas Morello, the latter admitted receiving service of a motion by the plaintiff, but understood that the date of filing was October 20, 2000, when in fact the date of filing was October 2, 2000.
[5] I have reviewed both the copy of the motion filed by the defendant and the original which is in the court record.
[6] It should first be noted that the date of filing was September 25, 2000, and that it was struck out and re-entered by hand as the date of October 2, 2000; however, the "o" of "October" could easily appear to be a "zero" attached to the "2" preceding it.
[7] I conclude that the error mentioned by Mr. Morello's affidavit was entirely legitimate in the circumstances. Rule 399 of the Federal Court Rules, 1998 states:
| 399. (1) On motion, the Court may set aside or vary an order that was made
(a) ex parte; or
(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding, if the party against whom the order is made discloses a prima facie case why the order should not have been made.
Setting aside or variance
399(2)
(2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was
discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
Effect of order
399(3)
(3) Unless the Court orders otherwise, the setting aside or variance of an order under subsection (1) or (2) does not affect the validity or character of anything done or not done before the order was set aside or varied.
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399. (1) La Cour peut, sur requête, annuler ou modifier l'une des ordonnances suivantes, si la partie contre laquelle elle a été rendue présente une preuve prima facie démontrant pourquoi elle n'aurait pas dû être rendue:
a) toute ordonnance rendue sur requête ex parte;
b) toute ordonnance rendue en l'absence d'une partie qui n'a pas comparu par suite d'un événement fortuit ou d'une erreur ou à cause d'un avis insuffisant de l'instance.
Annulation
399(2)
(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants:
a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue;
b) l'ordonnance a été obtenue par fraude.
Effet de l'ordonnance
399(3)
(3) Sauf ordonnance contraire de la Cour, l'annulation ou la modification d'une ordonnance en vertu des paragraphes (1) ou (2) ne porte pas atteinte à la validité ou à la nature des actes ou omissions antérieurs à cette annulation ou modification.
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[8] The defendant persuaded the Court that it could reasonably have believed that the date of filing written in the notice of motion was October 20, 2000 and not October 2, 2000.
[9] The defendant probably made a mistake when it did not appear on October 2, 2000 and Mr. Morello's affidavit persuades me that that mistake was made in good faith.
[10] The defendant established quite clearly that it did intend to oppose the motion made by the plaintiff.
[11] In the circumstances, therefore, it is proper under the provisions of s. 399 to consider that the order made on October 2, 2000 was made in the absence of the defendant and that absence was due to a mistake and a deficiency in the notice given to it.
[12] Additionally, the Court must also consider whether the plaintiff was entitled to be given an extension of time to file an application for judicial review.
[13] On reading the motion, it appeared that the plaintiff had submitted no grounds in support of his motion for an extension of time except to [TRANSLATION] "allow the CSST to deal with my dismissal of October 13, 1999 under s. 32. The relapse was acknowledged on August 22, 2000". In his motion the plaintiff mentioned that he intended to use at the hearing a letter from the CSST and a letter of opposition pursuant to s. 32.
[14] It would appear that the plaintiff failed to establish the existence of a continuing intention to file an application for judicial review before the deadline expired and also did not establish the chances of success or the seriousness of his application for judicial review.
[15] It appeared just from reading the motion filed by the plaintiff that it is not quite clear what decision was challenged by the plaintiff: according to the information in the record, it appeared that the plaintiff was dismissed by the defendant on October 13, 1999. As he was a unionized employee governed by a collective agreement and represented by the Canadian Auto Workers (CAW), the plaintiff filed a grievance challenging his dismissal.
[16] An arbitral award was made on August 16, 2000 quashing the dismissal of October 13, 1999 and ordering that the plaintiff be reinstated.
[17] It therefore appears that the dismissal decision made on or about October 13, 1999 has already been the subject of a grievance proceeding and a decision which seems favourable to the plaintiff was made by an arbitrator duly appointed under a collective agreement.
[18] As to the remedies and claims before the CSST and the administrative branch of the CSST, those remedies are not open to review in the Federal Court of Canada and the latter definitely cannot intervene with respect to their validity, if so desired.
[19] The Court concludes that the plaintiff has not presented evidence that he had chances of success or established the viability of his application for judicial review and has also submitted no reasons in support of his application for an extension of time.
[20] FOR ALL THESE REASONS, THE COURT
– allows the motion at bar;
– quashes the order made by Jean-Eudes Dubé on October 2, 2000;
– dismisses the plaintiff's motion for an extension of time, with costs.
OTTAWA, ONTARIO
December 19, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-39-00
STYLE OF CAUSE: SOUVIANE M'HAMMED v.
VIA RAIL CANADA INC. ET AL.
WRITTEN MOTION CONSIDERED WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: December 19, 2000
WRITTEN REPRESENTATIONS BY:
Soufiane M'Hammed for the plaintiff
Louise Béchamp for the defendant
SOLICITORS OF RECORD:
Fasken, Martineau, DuMoulin for the defendant
Montréal, Quebec
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