Date: 20110318
Docket: T-555-10
Citation: 2011
FC 335
Ottawa, Ontario, March 18, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ANTON OLEINIK
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Applicant
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and
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THE PRIVACY COMMISSIONER OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
This is an
appeal from an Order issued by Prothonotary Richard Morneau on February 18, 2011.
[2]
In the
Order being appealed, Prothonotary Morneau denied the Applicant’s motion to remove
from the Court’s file the solicitor’s certificate of service, which has been
filed by the Respondent, the Office of the Privacy Commissioner of Canada (OPC)
on December 17, 2010.
[3]
The
underlying proceeding is an application for judicial review of two decisions
rendered by the Privacy Commissioner of Canada in response to complaints filed by the
Applicant against the Social Sciences and Humanities Research Council of
Canada.
[4]
On April
12, 2010, the Applicant also served a motion for :
a. Personal service outside Canada;
b. Hearing by means of electronic
communication;
c. Alternatively, a stay of
proceedings until applicant’s return;
[5]
Of
interest for this present appeal is the Order that was issued by Prothonotary
Morneau on July 6, 2010 in which he provided directions as to the electronic
service of Court documents.
[6]
That July
6, 2010, Order was subsequently appealed by the Applicant on July 14, 2010. Justice
Martineau dismissed that appeal by Order dated September 16, 2010.
[7]
The
Applicant is alleging that the Respondent failed to properly serve his record
to the Applicant within the time allowed and that Prothonotary Morneau erred
and unduly exercised his discretion upon a wrong principle in law and a
misapprehension of facts when he validated the service of the Record by means
of electronic communication on December 16, 2010 and again on December 29, 2010
and in the Order of February 18, 2011 which is the subject of this Appeal.
[8]
Having
carefully read the Applicant’s submission and the motion record, I come to the
conclusion that the appeal must fail for the following reasons: As stated on
numerous occasions by this Court a discretionary Order of a Prothonotary should
only be reviewed de novo or set aside if the questions raised in that
motion are vital to the final determination of the case or if it is clearly in
error, that it is based on a misapprehension of the facts or a wrong principle
of law. (see Merck & Co. Inc. v Apotex Inc. 2003 FCA 488).
[9]
The
questions raised in this appeal are not vital, and after reading attentively
the Order of February 18, 2011, I did not find any reviewable error. The
documents were properly served in accordance to the instructions given in the
July 6, 2010 Order.
ORDER
THIS COURT ORDERS that the appeal filed by the Applicant
on March 1, 2011 be dismissed with costs.
"André
F.J. Scott"
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