Date: 20130515
Docket: 13-A-14
Citation: 2013 FCA 130
Present: EVANS
J.A.
BETWEEN:
NICHOLAS CHAN
Applicant
and
MINISTER RESPONSIBLE FOR
PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
CANADA BORDER SERVICES AGENCY
Respondents
REASONS FOR ORDER
[1]
This
is a motion by Nicholas Chan pursuant to rules 8 and 369 of the Federal
Courts Rules for an extension of time in which to appeal an Order by Justice
de Montigny (Judge) of the Federal Court, dated January 8, 2013. The motion
arises from Mr Chan’s application for judicial review of a decision by the
Respondents regarding a contravention of the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act, S.C. 2000, c. 17.
[2]
In
the Order that Mr Chan now seeks to appeal to this Court after the expiry of
the limitation period, the Judge dismissed Mr Chan’s motion for an extension of
time to appeal an Order of Prothonotary Lafrenière, dated October 24, 2013,
dismissing Mr Chan’s application for judicial review for delay.
[3]
The
Prothonotary was not persuaded that the representations made by Mr Chan in
response to a Notice of Status Review issued on August 1, 2012 justified his
delay in proceeding with the application. The Prothonotary noted, in
particular, the substantial delays that had already occurred and the absence of
any communication from Mr Chan over a period of six months.
[4]
In
his reasons for dismissing Mr Chan’s motion appealing from the Prothonotary’s
Order, the Judge noted that the discretion to grant an extension of time under
rule 8 must be exercised in light of the following criteria identified by this
Court in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846,
dated June 2, 1999 (Hennelly): (1) a continuing intention to pursue the
application; (2) that the application has some merit; (3) that no prejudice to
the respondent arises from the delay; and (4) that a reasonable explanation for
the delay exists.
[5]
The
Court’s application of these criteria should be guided by a consideration of
whether justice will be done between the parties by granting or refusing the
requested extension of time: Canada (Attorney General) v. Pentney,
[2008] 4 F.C.R. 265 (F.C.) at paras. 31 and following.
[6]
The
period for serving and filing a Notice of Appeal from the Judge’s Order expired
on February 8, 2013. The Respondents first learned of Mr Chan’s intention to
appeal 17 days later, on February 25, when he brought the present motion for an
extension of time.
[7]
I
am not persuaded on the basis of the representations made by counsel on behalf
of Mr Chan that the Hennelly criteria are satisfied or, more generally,
that justice will be served by granting the extension of time requested. Two
factors in particular militate against granting the extension.
[8]
First,
in addressing the issue of the merit of the underlying application for judicial
review, Mr Chan states that he raised a serious issue (breach of procedural
fairness) in the Notice of Application for Judicial Review. However, Mr Chan
has provided no subsequent material that would enable an assessment to be made
of whether this application has any merit.
[9]
In
any event, since Mr Chan is seeking an extension of time in which to appeal the
Order of the Judge, the relevant question is whether he has established that
his appeal from that Order has merit. I am not satisfied that it has: Mr Chan’s
written representations are silent on this issue; on an appeal from a
discretionary interlocutory Order, this Court normally applies a deferential
standard of review; and the Judge held that Mr Chan had provided no basis for
finding any merit in his appeal from the Prothonotary’s decision to dismiss the
application for judicial review for delay.
[10]
Second,
both the Prothonotary and the Judge noted that the history of delay in this
matter indicated a lack of an intention by Mr Chan to proceed with his
application. As far as the delay in his filing the present appeal to this Court
is concerned, it is not clear from the evidence that Mr Chan was, as he
alleged, outside Canada for the whole period between the date of the Judge’s
Order, January 8, 2013, and February 8, 2013, when the time for filing a Notice
of Appeal expired. Moreover, there is no satisfactory explanation of the
further 17 days’ delay from February 8 to February 25, when the Respondents
received notice of Mr Chan’s intention to appeal.
[11]
In
these circumstances, I am not persuaded that justice will be served by granting
the extension of time now sought by Mr Chan. Accordingly, the motion will be
dismissed.
“John M. Evans”
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