Date:
20080421
Docket: A-510-07
Citation: 2008 FCA 149
CORAM: NOËL J.A.
NADON J.A.
RYER J.A.
BETWEEN:
LYLE
RONALD CUNNINGHAM
Appellant
and
THE KWIKWETLEM INDIAN BAND
and the CHIEF AND COUNCIL of the
KWIKWETLEM INDIAN BAND
Respondents
Heard at Vancouver,
British Columbia, on April 21,
2008.
Judgment delivered from the Bench at Vancouver, British Columbia, on April 21, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: RYER
J.A.
Date:
20080421
Docket:
A-510-07
Citation:
2008 FCA 149
CORAM: NOËL
J.A.
NADON
J.A.
RYER
J.A.
BETWEEN:
LYLE RONALD
CUNNINGHAM
Appellant
and
THE KWIKWETLEM INDIAN BAND
and the CHIEF AND COUNCIL of the
KWIKWETLEM INDIAN BAND
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on April 21,
2008)
RYER J.A.
[1]
This
is an appeal from an order of Justice Beaudry of the Federal Court (Docket
T-46-2007) dated October 16, 2007, dismissing an application for an order
pursuant to subsection 18.1(2) of the Federal Courts Act, (the Act) to
extend the time within which an application can be made for judicial review of
an alleged decision of a federal board.
[2]
Subsection
18.1(2) of the Act requires an application for judicial review to be made
within 30 days after the time that the decision in question was first
communicated to the affected party. However, that provision allows a judge of
the Federal Court to extend the time within which the application can be made.
[3]
In
the circumstances under consideration, the decision of the respondent to evict
Mr. Cunningham from the premises that he leased from the respondent was taken
on May 14, 2007, and that decision was communicated to Mr. Cunningham by letter
that was hand delivered to him on that date. The application to extend the time
to challenge that decision was made on September 5, 2007.
[4]
The
Federal Court dismissed the application and stated in its order:
No reasonable explanation has been
provided by the Applicant for the delay in serving and filing this application.
[5]
The
decision to grant an extension of time pursuant to subsection 18.1(2) of the
Act is a discretionary decision. Our Court can overturn a discretionary
decision, such as the one that was made by the Federal Court in the matter that
is before us, only if we are satisfied that the Federal Court acted on a wrong
principle or failed to give weight to relevant considerations (See: Sark v.
Abegweit Band Council, [1996] F.C.J. No. 532 (FCA).
[6]
The
appellant argues that the brief reasons of the Federal Court for denying its
application are insufficient. While we agree that the reasons are brief, we are
not persuaded that they are insufficient. The Federal Court stated that an
essential element in the determination of whether to grant the extension of
time, namely, whether there was a reasonable explanation for the delay, was not
established. This statement, when read against the background of the record,
fully conveys the reasoning of the Federal Court for dismissing the
application.
[7]
We
should add that even if we had agreed with the appellant that the reasons of
the Federal Court were insufficient, which would have allowed us to exercise
our own discretion, we would have dismissed the appellant’s application for an
extension of time.
[8]
Accordingly,
the appeal will be dismissed with costs.
"C.
Michael Ryer"
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-510-07
STYLE OF CAUSE: Lyle
Ronald Cunningham v.
The Kwikwetlem Indian Band et al.
PLACE OF
HEARING: Vancouver, British
Columbia
DATE OF
HEARING: April
21, 2008
REASONS FOR
JUDGMENT BY: NOËL J.A.
NADON
J.A.
RYER
J.A.
DELIVERED
FROM THE BENCH BY: RYER J.A.
DATED: April 21, 2008
APPEARANCES:
Ms. Sarah J.
Rauch FOR THE
APPELLANT
Ms. Lesley A.
Giroday FOR THE
RESPONDENTS
SOLICITORS
OF RECORD:
|
UBC First
Nations Law Clinic
Vancouver, B.C.
|
FOR THE
APPELLANT
|
|
Ratcliff &
Company LLP
North
Vancouver, B.C.
|
FOR THE RESPONDENTS
|
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