Date:
20090617
Docket:
09-A-23
Citation: 2009 FCA 208
Present: PELLETIER
J.A.
BETWEEN:
STACY BITTON
Applicant
and
HSBC BANK CANADA
Respondent
REASONS FOR ORDER AND
ORDER
PELLETIER
J.A.
[1]
The
facts underlying this motion for an extension of time to file a notice of
appeal go back to 2005. Following his dismissal by HSBC Bank Canada (the Bank),
Mr. Bitton exercised his right to refer the matter of his dismissal to an
adjudicator, who rendered his decision in the Bank’s favour on May 4, 2005. Mr.
Bitton filed an application for judicial review of the adjudicator’s decision,
and his application was allowed by Justice de Montigny of the Federal Court on
the ground that the adjudicator had failed to provide adequate reasons for his
decision. On November 9, 2006, Justice de Montigny referred the matter back to
the adjudicator for him to show that “the disciplinary measure taken by the
employer, namely dismissal, was justifiable”.
[2]
On
September 12, 2007, the adjudicator rendered a second decision that did not
please Mr. Bitton any more than the original one. Mr. Bitton intended
to challenge the second decision, but believed that he could proceed within the
application he had made with regard to the first adjudication decision.
Unfortunately, owing to the fact that it concerned a new decision, he had to
file a second application for judicial review but, since the 30-day time limit
to do so had elapsed, he first had to file a motion for an extension of time.
[3]
Still
intending to comply with the Federal Courts Rules (Rules),
Mr. Bitton filed his motion for an extension of time on October 29, 2007.
It was not until August 28, 2008, that the Registry of the Federal Court
informed him that, by mistake, his motion for an extension of time had not been
submitted to a judge. Mr. Bitton having confirmed his intention to
continue his proceedings, his motion for an extension of time was submitted to
Justice Lemieux, who made his decision on September 24, 2008. Justice Lemieux
dismissed the motion for an extension of time on the ground that
Mr. Bitton had not satisfied him that [translation]
“his application for judicial review would have a reasonable chance of
succeeding on the merits of the application”. Still according to Justice Lemieux,
Mr. Bitton requested in his submissions that the Court reassess the
evidence that was before the adjudicator and that it make findings that the
adjudicator did not see fit to make, which Justice Lemieux rightly said cannot
be done on judicial review. Dissatisfied with that decision, Mr. Bitton in
fact requested that it be reconsidered, but his request was dismissed on
November 17, 2008.
[4]
This
last decision notwithstanding, the steps that Mr. Bitton has taken since
that time concern the September 24, 2008, decision. On January 28, 2009,
Mr. Bitton attempted to file a notice of appeal, but it was dismissed on
February 6, 2009, because it was out of time, and for other procedural
defects. On February 19, 2009, Mr. Bitton filed a new notice of
appeal without having first obtained an extension of time to do so. On
March 18, 2009, Justice Nadon issued a direction in which he stated that
even if the documents filed by Mr. Bitton were treated as a motion for an
extension of time, they did not comply with the Rules because they were not
accompanied by evidence, in affidavit form, of the facts relevant to the
motion. Furthermore, the filing fee set out at Tariff A of the Rules had not
been paid.
[5]
On
April 13, 2009, Mr. Bitton filed a motion for an extension of time,
with an affidavit and the filing fee in support. Once again, there were obvious
problems of compliance with the Rules. There was inadequate proof that the
motion was served on the other party. Mr. Bitton’s “affidavit” was not
sworn, nor were the attached exhibits.
[6]
It
seems to me that the ends of justice are not served by requiring that
Mr. Bitton comply more fully with the Rules when, from reading the
voluminous documentation already in the record, there can be no doubt that his
motion for an extension of time is bound to fail. In his reasons, Justice
Lemieux explained the ground for his dismissal of the motion for an extension
of time filed by Mr. Bitton very clearly: Mr. Bitton had failed to
satisfy him that the application for judicial review had any possibility of
success. The same applies to a motion for an extension of time to file a notice
of appeal. In addition to explaining the reason for lateness, the applicant
must submit one or more arguments suggesting that that his or her appeal is
well founded. Mr. Bitton filed nothing in that respect, which is fatal to
his motion for an extension of time.
[7]
In
light of the fact that the events giving rise to this dispute go back to
2004-2005, it seems to me that the time has come to put an end to this unfortunate
story. Therefore, in the special circumstances of this case, and on the basis
of Rule 55, which allows me to dispense with compliance with the Rules on
my own initiative, I make the following order:
ORDER
a)
The Registry is authorized to accept for filing the motion for an extension
of time dated April 13, 2009;
b) The
applicant is exempted from the obligation to file proof of service of his
motion on the respondent;
c) The respondent is exempted from the
obligation to file a motion record;
d)
The applicant’s motion for an extension of time is dismissed without costs
because the applicant has not satisfied me that his appeal of Justice Lemieux’s
discretionary decision would have any possibility of success.
e) The Registry will send a copy of this
order to both parties.
“J.D.
Denis Pelletier”
Certified true
translation
Sarah Burns
Email this Content