Date: 200011l4
Docket: A-144-99
(T-3236-90)
ROTHSTEIN J.A.
MALONE J.A.
B E T W E E N:
IAN V. MACDONALD
Appellant (Plaintiff)
-- and --
HER MAJESTY THE QUEEN AND THE PROFESSIONAL
INSTITUTE OF THE PUBLIC SERVICE
Respondent (Defendant)
Heard at Ottawa, Ontario on Thursday, November 9, 2000
JUDGMENT delivered at Ottawa, Ontario on Tuesday, November 14, 2000
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 200011l4
Docket: A-144-99
(T-3236-90)
ROTHSTEIN J.A.
MALONE J.A.
B E T W E E N:
IAN V. MACDONALD
Appellant (Plaintiff)
-- and --
HER MAJESTY THE QUEEN AND THE PROFESSIONAL
INSTITUTE OF THE PUBLIC SERVICE
Respondent (Defendant)
REASONS FOR JUDGMENT
STRAYER J.A.
[1] This is an appeal from an order of Reed J. refusing to grant the appellant an extension of time for filing a notice of appeal from a judgment of the Trial Division dated November 3, 1998.
[2] The time for filing that appeal, as prescribed by paragraph 27(2)(b) of the Federal Court Act, would have expired 30 days after the judgment: namely, on December 3, 1998, unless such time was extended by the Trial Division. It was not until February 12, 1999, over three months after the issue of the judgment sought to be appealed, that the appellant filed a notice of motion for an extension of time. The only evidence which the appellant put before the motions judge, Reed J. was an affidavit saying that he could not afford a solicitor to represent him, and referring to reasons for the delayed filing of the notice of appeal as set out in the notice of motion. The notice of motion only asserted that he had instructed counsel who, it implies, did not file a notice of appeal in a timely manner.
[3] Reed J. dismissed the motion for an extension of time without giving any reasons. I must therefore consider what material she had before her to determine whether it could have provided the basis for her exercise of discretion.
[4] I am satisfied that the learned motions judge was justified in the circumstances in deciding as she did. In particular it is apparent that the appellant did not place before her any evidence which could meet the various criteria for an extension of time. There is no affidavit evidence as to when the appellant formed an intention to appeal, when he instructed counsel, when he learned that counsel had not acted (if that is what he is suggesting), and precisely why it took him over three months to move for an extension of time. Nor was there any affidavit evidence as to the merits of his appeal: he took the view before us that the motions judge should have read the trial evidence and necessarily concluded that he had not had a fair hearing at trial.
[5] In his material filed in this appeal the appellant for the first time asserted that the trial judge exhibited bias during the trial. If he had any evidence to support this allegation, and if he wished to invoke this allegation as demonstrating that his appeal had merits, he should have done it before the motions judge. Suffice it to say that he has not sought to introduce before us any evidence to support such a serious allegation nor has he been able to point to any support for it in the record.
[6] I am thus satisfied that the motions judge had material before her upon which she could exercise her discretion as she did and that she made no error of principle in doing so.
[7] The appeal should therefore be dismissed with costs.
(s) "B.L. Strayer"
J.A.
I agree
Marshall Rothstein
I agree
Brian Malone J.A.
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