Date: 20080717
Docket: A-71-08
Citation: 2008 FCA 242
Present: SHARLOW
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MARY LACEY
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The applicant
wishes to challenge a decision of the Umpire in CUB 69381, which was issued on
November 13, 2007. The application for judicial review was filed on February
20, 2008, pursuant to an order of this Court dated February 13, 2008 granting
an extension of time. The extension was required because the applicant had
misunderstood the rules applicable to determining the limitation period as
determined by the combined operation of sections 18.1(2) and 28(2) of the Federal
Courts Act, R.S.C. 1985, c. F-7. The applicant now moves for an
extension of time for filing the applicant’s record. The respondent has not
responded to the motion.
[2]
An order
granting or refusing an extension of time is discretionary. The applicable
principles are summarized in the leading case, Canada (Attorney General) v. Hennelly (1999), 244 N.R. 299, [1999]
F.C.J. No. 846 (QL) (F.C.A.). The underlying consideration is that justice must
be done between the parties. The factors to be considered are:
(a) whether there has been a
continuing intention to pursue the appeal;
(b) whether the appeal has some
merit;
(c) whether any prejudice arises
from the delay; and
(d) whether there is a reasonable
explanation for the delay.
[3]
In this
case, the applicant has demonstrated a continuing intention to pursue the
appeal, and the delay has been explained. There is no basis for concluding that
the respondent would be prejudiced by the delay.
[4]
The issue
in this case relates solely to the second factor. I am satisfied that the
grounds for the application raise an arguable point. However, I am not
satisfied that the application, as presently constituted, would provide this
Court with any foundation for considering the merits of the application. I
reach that conclusion because the applicant is apparently proposing to argue
this appeal solely on the basis of a record that contains no applicant’s
affidavit.
[5]
In an
application for judicial review, the function of the applicant’s affidavit is
to provide the Court with sworn evidence authenticating the documents upon
which the applicant’s argument depends. The applicant in this case apparently
believes that this function will be served by the certified record transmitted
to the Registry pursuant to Rule 318 of the Federal Courts Rules,
SOR/98-106. However, that belief is not well founded.
[6]
There is
no provision of the Federal Courts Rules that permits the certified
record, as such, to be included in the applicant’s record or the respondent’s
record. Rather, Rule 309(2)(d) requires the applicant’s record to
include “each supporting affidavit and documentary exhibit”, a reference to the
supporting affidavits and documentary exhibits that the applicant is required
by Rule 306 to file. (The corresponding provisions applicable to the respondent
are Rules 310(2)(b) and Rule 307.)
[7]
The
correct way to include the certified record in the applicant’s record is to
append it as an exhibit to an affidavit filed under Rule 306. (Similarly, a
respondent may include the certified record as an exhibit to an affidavit filed
under Rule 307.) Of course, in many cases it will not be necessary to append
the entire record, only the documents upon which the applicant or the respondent,
as the case may be, intends to rely.
[8]
In this
case, the applicant proposes to file an applicant’s record that contains (1)
the notice of application for judicial review, (2) the decision sought to be
reviewed, (3) the “certified copy of the appeal docket” (which I take to mean
the certified record provided by the Office of the Umpire pursuant to Rule
318), (4) the applicant’s memorandum of fact and law, and (5) a list of
authorities.
[9]
As
explained above, the third item is not part of the permitted contents of the applicant’s
record because it is not appended as an exhibit to an affidavit submitted by
the applicant pursuant to Rule 306. Therefore, if the applicant is permitted to
file the application record in its present form, the applicant’s argument at
the hearing of the application would have no factual foundation. For that
reason, it would be unlikely to succeed.
[10]
It is
possible that the panel hearing the application would grant leave to permit the
applicant to refer to the parts of the applicant’s record that were improperly
included. However, it cannot be certain at this stage that leave would be
granted.
[11]
For these
reasons, the applicant’s motion for an extension of time to file the
applicant’s record will be dismissed.
“K.
Sharlow”
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