Docket: T-1170-14
Citation:
2015 FC 466
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, April 15, 2015
PRESENT: The Honourable Mr. Justice Noël
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BETWEEN:
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PHILIPPE BEAUREGARD
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Philippe Beauregard, the applicant, brought a
motion under rule 51 of the Federal Courts Rules, SOR/98-106 [Rules] to
set aside the decision of Prothonotary Richard Morneau [Prothonotary]
dated January 7, 2015. The decision in question dismissed the application
for judicial review for delay.
II.
Facts
[2]
The applicant is an officer in the Service de
police de Lévis who was taking part in a forensic identification course given
by the Canadian Police College [CPC].
[3]
An administrative investigation was conducted by
Royal Canadian Mounted Police officers following allegations that the applicant
had contravened the CPC’s Code of Conduct in August 2013.
[4]
On August 20, 2013, when the investigation
concluded, it was determined that the applicant had contravened the Code of
Conduct. It was also decided that the applicant would, therefore, be
dismissed.
[5]
A dismissal letter was given to the applicant on
August 30, 2013.
[6]
The applicant appealed that decision. The CPC received
a letter from counsel on September 23, 2013, asking that the applicant be
readmitted to the forensic identification program.
[7]
On April 9, 2014, in response to that
letter, the Director General of the Canadian Police College [Director] replied
that the applicant was the subject of an investigation where it was determined
that he had contravened the Code of Conduct. The sanction imposed,
dismissal, should not be changed. The Director also stated that if further
investigation was necessary, it would be conducted by the Service de police de
Lévis given that the CPC had no legal power over the applicant. The applicant applied
to the Court for judicial review of this decision.
[8]
An application for judicial review was filed on
May 9, 2014, and the applicant’s affidavit with supporting material
followed on June 9, 2014, and the applicant did not subsequently file a
record in accordance with rule 309 of the Rules. The respondent filed his
affidavit with supporting material on September 23, 2014.
[9]
Given that 180 days had elapsed since the application
for judicial review was filed, a notice of status review was issued by
Justice Harrington on November 27, 2014. The notice of review stated
that the applicant had 15 days to file his representations, which had to “. . .
include a justification for the delay and a proposed timetable for the
completion of the steps necessary to advance the proceeding in an expeditious
manner.” The notice added that the respondent would have seven days to respond.
[10]
The applicant submitted his representations on
December 11, 2014. The respondent submitted his representations on
December 17, 2014. The applicant submitted a reply on December 23,
2014.
[11]
Everything was given to the Prothonotary, who
issued an order on January 7, 2015, concluding that the application for
judicial review should be dismissed for delay. This is the order being
appealed.
III.
Impugned decision
[12]
Prothonotary Morneau, taking into
consideration counsel for the applicant’s representations in chief and in
reply, found that the respondent’s arguments should prevail. He added that it
was only in reply that the applicant sought to establish that he satisfied the
criteria in Baroud v Canada, [1998] FCJ No 1729, 160 FTR 91 [Baroud]
cited by the respondent. For the Prothonotary, this was not justifiable, and
therefore the application for judicial review was dismissed for delay.
IV.
Submissions of the parties
[13]
Counsel for the applicant states in his written
representations dated December 11, 2014, that the failure to comply with
the 180-day time limit was his fault, not the fault of his client, Officer Beauregard.
He argues that his client should not be penalized for his error. He submits
that the Prothonotary did not take into account the timetable that was submitted
in reply, thus creating a [translation]
“clear breach of the audi alteram partem rule” and that therefore he should
have taken into consideration the short time period for resuming the proceeding.
[14]
In response, the respondent argues that the
applicant does not meet the Baroud criteria, which are (1) what are the
reasons why the case has not moved forward faster and do they justify the delay
that has occurred? and (2) what steps is the plaintiff now proposing to move
the matter forward? Considering the admitted error by applicant’s counsel in
computing the 180-day time limit, the respondent submits that this demonstrates
a [translation] “lack of knowledge”
of the Rules, that it was his responsibility to obtain the appropriate
information to move the case forward and that he was not diligent in monitoring
the file. In support of his argument, he refers to a number of judgments that
conclude that a lack of diligence or knowledge or a misunderstanding of the
Rules do not constitute reasonable excuses for delay and that, therefore, the first
Baroud criterion has not been made out.
[15]
With respect to the timetable (second Baroud criterion),
it was only filed in reply to the respondent’s representations. He contends
that the Prothonotary considered the timetable that was submitted in reply,
contrary to what the applicant argued on appeal, but that the error in computing
the 180 days did not excuse the applicant and that therefore the application
for judicial review was dismissed and this appeal should also be dismissed.
V.
Analysis
[16]
According to rule 51 of the Rules and the jurisprudence,
where the order under appeal is vital to the final issue of the application for
judicial review as is the case here, the appellate judge exercises his or her
discretion de novo (see Canada v Aqua-Gem Investments Ltd.,
[1993] 2 FCR 425, 1993 CanLII 2939 (FCA), at para 95 and Merck & Co.,
Inc. v Apotex Inc., 2003 FCA 488 (CanLII), [2003] FCJ No 1925, at para 19).
[17]
The Federal Courts’ jurisprudence concerning
rule 382 of the Federal Courts and the notice of status review is consistent.
In response to this type of notice, the applicant must, as was explicitly
stated in the notice of review issued November 27, 2014, provide a
justification for the delay and include a timetable to advance the proceeding
in an expeditious manner. Rule 382 as well as the Baroud decision,
above, also expressly say this.
[18]
In addition, the Federal Courts’ jurisprudence
states that errors, lack of knowledge or misunderstanding of the Rules are not
necessarily grounds for justifying the delay (see Netupsky v Canada (Customs
and Revenue Agency), 2004 FCA 239 (CanLII) at para 18; Cotirta v
Missinnipi Airways, 2012 FC 1262 CanLII) at para 13 (affirmed on appeal (Cotirta
v Missinippi Airways, 2013 FCA 280 (CanLII)).
[19]
I agree that the parties involved in a case and
their counsel must get to know the Rules and update them based on the
requirements of the proceeding selected. However, where a final decision
results in terminating a proceeding that was validly initiated and taking away
a party’s right to present arguments, it seems to me that, in addition to the
two Baroud criteria cited previously (reason for delay and proposed
steps to move the matter forward), a Court must also consider whether the
applicant showed an intention to proceed with the case, even if done awkwardly,
but also whether everything can be corrected provided that the respondent will
not suffer significant prejudice.
[20]
On this issue, Justice Sharlow, in a Federal
Court of Appeal decision, Bernier v Canada (Minister of Human Resources
Development), 2004 FCA 58, at paragraph 7, recognized that a failure to
comply with the Rules need not be fatal provided that there is a good-faith
intention to cure the failure and that the defendant will not suffer any
substantial prejudice. In Precision Drilling International v BBC Japan (Ship),
2004 FC 701, at paragraph 12 (CanLII), Justice Snider stated the following in
this regard:
Given the draconian effects of dismissing a
claim for delay, I believe that it would be appropriate to focus on the overall
interests of justice in the case and not to be overly concerned with minor
omissions or procedural defects. The overarching concern should be whether the
Plaintiffs recognize their responsibility to move this action along and are
taking steps to do so. In my view, the Baroud questions are simply posed to address this concern and should not
be applied in a manner that ignores this broader question. Thus, as I look at
these two questions in the context of these particular facts, I would take a
liberal approach to this analysis.
[21]
Bearing in mind the statements mentioned above
for both the Federal Court of Appeal and the Federal Court, I note in this case
that applicant’s counsel made an error in computing the timelines. Counsel’s
admission on this point was eloquent. In addition, the record shows that the
applicant and his counsel always wanted the case to proceed. Counsel
inappropriately filed a requisition for hearing, but in doing so he indicated
that he wanted the proceeding to go ahead even though it had not reached that
stage. Moreover, when he was properly informed, he filed a timetable in reply so
that the case could proceed diligently. This was certainly not the way to
adequately respond according to the Rules, but counsel for the applicant’s
actions inform us of the reason for the delay, and he proposes, awkwardly, a
timetable in order for the proceeding to be heard. I also note that the
respondent is not suggesting that he would suffer significant prejudice if the
case were to proceed.
[22]
It seems to me that in such circumstances the applicant
should not suffer the fatal consequences that the interruption of a proceeding
triggers. At the hearing, counsel for the applicant explained what happened in
his submissions and accepted complete responsibility for the situation he
created. This decision is not a way for the undersigned to excuse the errors
made by applicant’s counsel, but it seems that the interests of justice require
me to find that the criteria in Baroud, above, were met, although belatedly,
and that therefore the appeal should be allowed and a timetable will form part
of this judgment.
[23]
Costs in the cause.
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