Canada v. Jennings, 2006 FCA 402

Date: 20061208

Docket: 06-A-49

Citation: 2006 FCA 402

Present:          RYER J.A.

BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

AS REPRESENTED BY THE MINISTER OF FISHERIES AND

OCEANS (The Minister), THE ATTORNEY GENERAL OF

CANADA (The Attorney General)

APPLICANT

and

RICHARD JENNINGS, SYL MacDONALD, DONALD

JOHNSTON, ROBERT JENKINS, SEPTIMUS MacPHEE,

BRIAN MacPHEE AND ERNIE GALLANT, all of whom are

fishermen from Prince Edward Island.

RESPONDENTS

Motion dealt with in writing without appearance of parties

Order delivered at Ottawa, Ontario, on December 8, 2006.

REASONS FOR ORDER BY:                                                                                           RYER J.A.

Date: 20061208

Docket: 06-A-49

Citation: 2006 FCA 402

Present:          RYER J.A.

BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

AS REPRESENTED BY THE MINISTER OF FISHERIES AND

OCEANS (The Minister), THE ATTORNEY GENERAL OF

CANADA (The Attorney General)

APPLICANT

and

RICHARD JENNINGS, SYL MacDONALD, DONALD

JOHNSTON, ROBERT JENKINS, SEPTIMUS MacPHEE,

BRIAN MacPHEE AND ERNIE GALLANT, all of whom are

fishermen from Prince Edward Island.

RESPONDENTS

REASONS FOR ORDER

RYER J.A.

[1]               A motion was placed before me seeking an extension of time for the filing of a Notice of Appeal, pursuant to Rule 8 of the Federal Courts Rules at paragraph 27(2)(a) of the Federal Courts Act.

[2]               Both parties agreed that the test set forth in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (F.C.A.) should govern the outcome of an application for an extension of time such as this one.  In that decision, McDonald J.A. stated:

The proper test is whether the applicant has demonstrated

1.                  a continuing intention to pursue his or her application;

2.                  that the application has some merit;

3.                  that no prejudice to the respondent arises from the delay; and

4.                  that a reasonable explanation for the delay exists.

[3]               Having reviewed the materials that were filed, I am not satisfied that the Applicant has established a reasonable explanation for the delay in the filing of the Notice of Appeal.  Accordingly, the application will be dismissed, with costs.

"C. Michael Ryer"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                                                                          06-A-49

STYLE OF CAUSE:

                                    HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS

REPRESENTED BY THE MINISTER OF FISHERIES AND

OCEANS (The Minister), THE ATTORNEY GENERAL OF

CANADA (The Attorney General)

APPLICANT

and

RICHARD JENNINGS, SYL MacDONALD, DONALD

JOHNSTON, ROBERT JENKINS, SEPTIMUS MacPHEE,

BRIAN MacPHEE AND ERNIE GALLANT, all of whom are

fishermen from Prince Edward Island.

RESPONDENTS

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                             RYER J.A.

DATED:                                                                                 December 8, 2006

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: