Date: 20111114
Docket: A-4-11
Citation: 2011 FCA 309
CORAM: NOËL
J.A.
NADON
J.A.
SHARLOW
J.A.
BETWEEN:
AHMED MAQSOOD
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an
appeal from a decision rendered by Mr. Justice Pinard of the Federal Court (the
“judge”) on December 8, 2010, dismissing the appellant’s motion for an
extension of time to serve and file an application for judicial review of the
decision of an adjudicator appointed by the Public Service Labour Relations
Board (the “Board”).
[2]
The only
issue before us is whether the judge erred in the exercise of his discretion.
For the reasons that follow, I conclude that he did not.
The Facts:
[3]
On April
11, 2007, the appellant was dismissed, while on probation, from his position as
a senior trademarks examiner within the Trade-marks Branch of the Canadian
Intellectual Property Office of Industry Canada (the “employer”).
[4]
His
grievance of the dismissal was referred to an adjudicator and was heard in Ottawa from September 16 to 19,
2009.
[5]
On
December 14, 2009, the adjudicator dismissed the grievance. More particularly, she
concluded that the appellant had been dismissed for an employment-related
reason, i.e. his failure to meet the expected performance standards. In so
concluding, the adjudicator was of the view that the appellant had not met his
burden of showing that the employer had acted in bad faith in rejecting him
while on probation.
[6]
Consequently,
by reason of section 211 of the Public Service Labour Relations Act,
S.C., 2003, c. 22, s. 2 (the “Act”), which excludes the right provided by
section 209 of the Act to refer a grievance to adjudication whenever a
termination of employment occurs during a period of probation, other than as a
result of bad faith on the part the employer, the adjudicator held that she was
without jurisdiction to hear the grievance and so dismissed it.
[7]
On January
26, 2010, the appellant commenced before this Court a judicial review
application of the adjudicator’s decision and on April 21, 2010, Pelletier J.A.
quashed the appellant’s application on the grounds that this Court had no
jurisdiction to hear it.
[8]
On October
21, 2010, leave to appeal Pelletier J.A.’s decision to the Supreme Court of
Canada was refused.
[9]
On
November 9, 2010, the appellant applied to the Federal Court for an order
extending the time for him to serve and file an application for judicial review
of the adjudicator’s decision.
[10]
On
December 8, 2010, his application was dismissed by the judge. In his view, the
appellant’s request for an extension of time was without merit because of its
failure to address the test applicable for the granting of an extension of time
enunciated by this Court in Stanfield v. Her Majesty the Queen, 2005 FCA
107, where we held at paragraph 3 of our Reasons:
[3] Generally, in
determining whether to grant an extension of time, the four factors listed in Grewal
v. Canada (Minister of Employment &
Immigration),
[1985] 2 F.C. 263 (F.C.A.) should be considered. The factors are (1) whether
the party seeking the extension has a continuing intention to pursue the
matter, (2) whether the position taken by the party seeking the extension of
time has some merit, (3) whether the other party is prejudiced by the delay,
and (4) whether there is a reasonable explanation for the delay. The weight to
be given to each of these factors will vary with the circumstances of each
case.
[11]
On January
7, 2011, the applicant filed the appeal which is now before us. In my view, the
appeal cannot succeed.
Analysis:
[12]
Although I
am prepared to accept that the appellant had a continuous intention to pursue
his judicial review application, that there is a reasonable explanation for the
delay other than for a few days between December 14, 2009 and January 28, 2010,
and that no prejudice would result to the respondent if the extension of time
were granted, I have not been persuaded that the judge erred in refusing to
allow the extension of time sought by the appellant.
[13]
The
adjudicator heard the appellant’s grievance over a period of three days. Her
Reasons demonstrate that she carefully reviewed the evidence before her and
then proceeded to consider the arguments submitted by the parties. After a
careful analysis of both the facts and the law, the adjudicator held that there
was no basis whatsoever to conclude that the employer was acting in bad faith
in dismissing the appellant. She was satisfied that the grounds for dismissal
were clearly employment related.
[14]
After carefully
reviewing the record before us and considering the appellant’s arguments on
this appeal, I see no basis upon which his judicial review application might
succeed. Although the appellant asserts in his Memorandum of Fact and Law that
he has “solid evidence to prove his case”, he did not present this evidence to
the judge or to us. There is, in effect, no evidence before us, since the
appellant has neither filed an affidavit in support of his motion nor has he
provided us with the transcript of the evidence adduced before the adjudicator.
All we have are the appellant’s unsupported allegations and statements as to
what he believes to be the evidence before the adjudicator which, he says, the
adjudicator failed to consider.
[15]
The
appellant takes the position, as he did before both the adjudicator and the
judge, that the employer’s decision to terminate him was arbitrary, made in a
discriminatory fashion and in bad faith. In support of his assertions, he
refers to evidence which the adjudicator carefully reviewed and dealt with in
the course of her Reasons. Although the appellant strongly disagrees with the
conclusions reached by the adjudicator, he cannot point to any possible error
on her part. Even assuming that the standard of review applicable to the
adjudicator’s decision is correctness, I cannot detect any error on her part
which might lead a court to find in the appellant’s favour.
[16]
Consequently,
in the light of the relevant test, I have not been persuaded that the judge
made any error which would allow us to intervene. More particularly, I am of the
opinion that the judge’s exercise of discretion, in the circumstances of this
case, does not result from an error of principle or from a misapprehension of
the facts.
Disposition:
[17]
For these
reasons, I would dismiss the appeal with costs.
“M.
Nadon”
“I
agree.
Marc
Noël J.A.”
“I
agree.
K.
Sharlow J.A.”
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