Date: 20010307
Docket: A-4-00
Neutral Citation: 2001 FCA 52
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
DAVINDER SINGH KHAPER
Appellant
- and -
HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT
THE COURT
On November 9, 1992, the appellant commenced an action in the Trial Division claiming a declaration that his purported resignation dated June 17, 1992 from the Royal Canadian Mounted Police had not been made voluntarily and alleging further that on June 29, 1992, he had applied to the R.C.M.P. to withdraw his resignation.
Trial of the action was scheduled to commence November 23rd, 1999, but prior to trial the respondent brought on an application to dismiss the action. The motion was heard by Prothonotary Hargrave. He found that the action was "without a reasonable cause of action", but gave the appellant thirty days to file a motion for an extension of time and a motion under Rule 57 to reconstitute his action as an application for judicial review.
The appellant complied with the order. On November 17, 1999, he filed a notice of motion wherein he identified the two decisions of the R.C.M.P. which he wished to attack: the decision to seek his resignation on or about June 17, 1992, and the decision to refuse his application to withdraw his resignation, dated July 24, 1992.
Mr. Justice Blais allowed the motion to reconstitute the action on an application for judicial review, but he denied the extension of time on the basis that the appellant had failed to demonstrate that there was an arguable case. The learned Judge did not go on to examine the other factors set out in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263.
Whether or not a motion under Rule 57 was an authorized vehicle in the circumstances and whether or not there was an arguable case, the fact is that the decision which is the most relevant to the appellant's case, i.e. the decision in which the Commissioner refused to accept the withdrawal of the resignation, was rendered on July 24, 1992, but was only attacked in the motion under Rule 57 filed in November 1999. There is no evidence whatsoever that the appellant had intended to seek judicial review of that decision within thirty days after it was first communicated to the appellant.
Furthermore, even if one were to assume for the sake of discussion that the alleged decision of June 17, 1992 to force the appellant to resign involuntarily is a "decision" that can be attacked through judicial review, the appellant failed to adduce any evidence that he had intended to seek judicial review of that decision within the thirty day period prescribed by section 18.1(2) of the Federal Court Act.
In these circumstances, the motion for an extension of time could not but be denied.
The appeal should therefore be dismissed with costs.
(Robert Décary)
J.A.
(Marshall Rothstein)
J.A.
(B. Malone)
J.A.
Date: 20010307
Docket: A-4-00
PRESENT: DÉCARY J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
DAVINDER SINGH KHAPER
Appellant
- and -
HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA
Respondent
JUDGMENT
The appeal is dismissed with costs.
(Robert Décary)
J.A.
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