Date:
20090608
Docket: A-6-08
Citation: 2009 FCA 220
CORAM: SHARLOW J.A.
RYER J.A.
TRUDEL J.A.
BETWEEN:
GUILLERMO
KOBEK
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Edmonton,
Alberta, on June 8, 2009.
Judgment delivered from the Bench at Edmonton, Alberta, on June 8, 2009.
REASONS
FOR JUDGMENT OF THE COURT BY: TRUDEL
J.A.
Date:
20090608
Docket:
A-6-08
Citation:
2009 FCA 220
CORAM: SHARLOW
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
GUILLERMO
KOBEK
Appellant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Edmonton, Alberta, on June 8, 2009)
TRUDEL J.A.
[1]
A
designated member of the Pension Appeals Board (PAB) denied Mr. Kobek’s
application for leave to appeal to the Pension Appeals Board (PAB) the decision
of the Review Tribunal that unanimously dismissed his motion to reopen his
claim for a disability pension, which had previously been dismissed by it.
[2]
Wanting to
challenge this decision, but being outside the time limit for doing so, the
appellant made a motion to the Federal Court seeking an extension of time to
apply for judicial review. The Order of August 14, 2007 (07-T-17), rendered by
Martineau J. (the Motion Judge) dismissed the appellant’s motion in the following
terms:
The applicant has not
established to the satisfaction of the Court a continuing intention to pursue
an application for judicial review, that he has an arguable case and that the
reasons for a delay of 11 months are sufficient in the circumstances (appeal
book at page III(1)).
[3]
Unsatisfied
with this Order, the appellant, once again outside the deadline for doing so,
made a motion to the Federal Court for reconsideration pursuant to Rule 397 of
the Federal Courts Rules. The appellant’s grounds for reconsideration
were a direct reply to the Order of August 14, 2008.
[4]
The Motion
Judge dismissed the reconsideration motion reasserting the reasons for which
the appellant’s first motion for an extension of time to apply for judicial
review had been dismissed. Moreover, the Motion Judge added that it was
“apparent that the conditions set out in Rule 397 [had not been] met in this
case” (Order of December 4, 2007, appeal book, page 11(1)). Hence, the within
appeal of the reconsideration Order.
[5]
We see no
error in this Order warranting the intervention of our Court. The drafting of
the impugned Order shows that the Motion Judge considered and weighed the
appropriate factors in deciding whether or not to grant an extension of time
(see Canada (Minister of Human Resources Development) v. Gattellaro,
2005 FC 883, at paragraph 9).
[6]
As for
Rule 397, it allows for reconsideration of an Order on the grounds that, inter
alia, a matter that should have been dealt with has been overlooked or
accidentally omitted. This is intended to permit the correction of inadvertent
mistakes or omissions. It is not intended to permit a challenge to an Order on
the basis that evidence has been disregarded or misunderstood. These matters
are required to be dealt with in an appeal rather than a motion for
reconsideration.
[7]
For these
reasons, this appeal will be dismissed without costs, as the respondent is not
seeking costs.
“Johanne Trudel”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: A-6-08
STYLE OF CAUSE: Guillermo
Kobek v.
Attorney
General of Canada
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: June 8, 2009
REASONS FOR JUDGMENT
OF THE COURT BY: (SHARLOW,
RYER, TRUDEL
JJ.A.)
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
Guillermo Kobek
|
SELF-REPRESENTED
LITIGANT
|
|
Sandra Gruescu
|
FOR THE
RESPONDENT
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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