Date: 20120615
Docket: 12-A-16
Citation: 2012 FCA 185
Present: EVANS
J.A.
BETWEEN:
WILLIAM DONALD HUDGINS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
EVANS J.A.
[1]
This is a
motion under rule 369 of the Federal Courts Rules, SOR/98-106 by William
Donald Hudgins for an extension of time to file a Notice of Application. He
wishes to apply for judicial review of a decision by the Canada Industrial
Relations Board (CIRB), dated March 14, 2012 (2012 CIRB LD 2750).
[2]
The CIRB
dismissed Mr Hudgins’ complaint that his union had breached the duty of fair
representation imposed by section 37 of the Canada Labour Code, R.S.C.
1985, c. L-2 (Code), on the ground that the complaint was filed out of time and
an extension of time was not warranted.
[3]
Mr Hudgins
filed his complaint with the CIRB on January 12, 2012. Subsection 97(2) of the
Code imposes a ninety-day limitation period on complaints of a breach of
section 37. The CIRB found that June 22, 2009 was the latest date at which he
knew or ought to have known of the facts giving rise to his complaint, that is,
more than twenty seven months outside the limitation period.
[4]
The CIRB
has a statutory discretion under paragraph 16(m.1) of the Code to extend the
time limits for complaints under section 37 of the Code. However, in view of
the labour relations considerations underlying Parliament’s intention of
ensuring that complaints are dealt with expeditiously, the CIRB sparingly
exercises its discretion to grant extensions of time. To obtain an extension,
an applicant must demonstrate compelling circumstances. The CIRB concluded that
there were no such circumstances excusing Mr Hudgins’ long delay that would
warrant the grant of an extension.
[5]
Mr Hudgins
was also late in submitting his Notice of Application to this Court. Subsection
18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides that an
application for judicial review must be made no later than 30 days after the
decision or order in question was first communicated by the decision-maker to
the person directly affected. However, a Judge has discretion to extend the
time.
[6]
Although
Mr Hudgins was only a few days late for filing a Notice of Application, he
still needs an extension of time in order to commence an application for
judicial review of the CIRB’s decision. In exercising its discretion to grant
an extension, the Court takes into account, among things, whether the applicant
has an arguable case. If a proceeding is bound to fail, there is no point in
permitting it to continue and thereby waste resources, both public and private.
[7]
In a
Direction dated May 31, 2012, (per Pelletier J.A.), Mr Hudgins was
advised that, in order to obtain an extension of time from the Court he would
have to demonstrate an arguable case that his proposed application for judicial
review would succeed. Although Mr Hudgins has amended his motion in response to
this Direction, his materials do not establish that his proposed application
for judicial review has any prospect of success.
[8]
Mr
Hudgins’ affidavit reiterates his allegations of harassment by his ex-wife and
her friends, but does not explain why he delayed more than two years before
filing a complaint with the CIRB. Most of the pages of the exhibits attached to
his affidavit concern his problematic dental experiences. The CIRB’s reasons
for refusing an extension of time appear careful and thorough. This Court is
very deferential to the CIRB’s exercise of discretion, especially since its
decisions are protected by a strong preclusive clause.
[9]
In view of
the material submitted by Mr Hudgins in his amended notice of motion, the
reasons provided by the CIRB for refusing a two-year extension of time, and the
deferential standard of review applied by this Court to the CIRB’s decisions,
there is no realistic possibility that his proposed application for judicial
review could succeed. Accordingly, granting an extension of time would not
serve the interests of justice.
[10]
For these
reasons, the motion for an extension of time for filing a Notice of Application
will be denied.
“John
M. Evans”
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