Schwarz Hospitality Group Ltd. v. Canada (Attorney General), 2002 FCT 961

Date: 20020911

Docket: T-137-02

Neutral citation: 2002 FCT 961

BETWEEN:

                                   THE SCHWARZ HOSPITALITY GROUP LIMITED

                                                                                                                                                         Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                     Respondent

                                               REASONS FOR ORDER AND ORDER

CAMPBELL, J.:

[1]                 The present appeal concerns specific findings made by Prothonotary Hargrave in a decision rendered on July 19, 2002 with respect to the late filing of two affidavits in the present judicial review application. I do not intend to repeat the substance of the Prothonotary's decision as these reasons are directed to the parties and should be read together with his written reasons.

[2]                 It is agreed that the standard of review is that stated in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 463 (C.A.), the Prothonotary correctly cited the test for extensions of time to file affidavits (Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 37 F.T.R. 199 (F.C.T.D. at 200) and, with respect to the reason for delay, it must be "valid" (Maple Inc. v. Flexible Ltd. (1995), 59 C.P.R. (3d) 211 (F.C.T.D.).

[3]                 Indeed, in the end result, the Prothonotary did decide that there was no valid reason offered for the late filing of the Schwarz Affidavit, but in reaching this conclusion, made two statements in his decision which give insight into the meaning he placed on the word; he said that what is needed is an "effective and valid reason" (Paragraph 16) and a "substantial" reason (Paragraph 21).

[4]                 I agree with the Applicant on the present appeal that there is no case authority which places the bar as high as that cited by the Prothonotary in the body of his reasons. As a result, I find that the decision with respect to the delay issue was made in error of law.

[5]                 On considering de novo the question of delay in filing the Schwarz Affidavit, the evidence is that the Applicant had been "attempting to discuss a negotiated resolution, without success" (Ethier Affidavit, May 30, 2002, Applicant's Application Record, p. 86). I put weight on the fact that this statement is uncontested in the written record. Accordingly, I accept it as a valid reason for delay.

[6]                 No issue was raised before the Prothonotary or before me concerning the relevance of the Schwarz Affidavit, and, therefore, I find it is relevant.

[7]                 With respect to the Ethier Affidavit of May 30, 2002 (Applicant's Application Record, p. 88) exhibiting post-decision evidence, the Applicant argued before the Prothonotary that the evidence goes to the decision under review as having been made in "bad faith" and maintains this argument on the present appeal.

[8]                 The Prothonotary decided that, since the evidence in the Ethier Affidavit was not before the decision maker at the time the decision was made, it is irrelevant. Post-decision evidence can be very relevant to an argument of "bad faith" or "bias", and, therefore, I find that the Prothonotary's ruling is unresponsive to the argument made and, thus, is made in error.

[9]                 On considering de novo the question of relevance, I find that the Ethier Affidavit evidence is relevant on the argument that the decision was pre-determined, but the weight to be given to it will be decided by the Judge hearing the judicial review application. I also find that there is a valid reason for delay in filing for the same reasons cited above for the Schwarz Affidavit.

                                                                          O R D E R

[10]            Accordingly, the present appeal is granted and I extend the time for filing the Schwarz Affidavit of March 8, 2002 and the Ethier's Affidavit of May 30, 2002 (Applicant's Application Record, p. 88) to September 13, 2002.

[11]            As no costs are requested by the Applicant, no costs are awarded.

                                                                                                                                 "Douglas R. Campbell"                              

                                                                                                                                                               Judge                                             

Calgary, Alberta

September 11, 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-137-02

STYLE OF CAUSE:                           The Schwarz Hospitality Group Limited

v. The Attorney General of Canada   

PLACE OF HEARING:                     Calgary, Alberta

DATE OF HEARING:                       September 10, 2002

REASONS FOR ORDER AND ORDER : CAMPBELL, J.

DATED:                                                September 11, 2002

APPEARANCES:

Mr. Judson E. Virtue                                                                      FOR APPLICANT

Ms. Michele Vincent                                                                       FOR RESPONDENT

SOLICITORS OF RECORD:

Macleod Dixon LLP

Calgary, Alberta                                                                             FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada     FOR RESPONDENT