Date: 20080827
Docket: 08-A-58
Citation: 2008 FCA 249
Present: SEXTON
J.A.
BETWEEN:
DORIS MUCKENHEIM
Applicant
and
EMPLOYMENT INSURANCE
COMMISSION
Respondent
REASONS FOR ORDER
SEXTON J.A.
[1]
The applicant
brings this motion to extend the time to bring an application for judicial
review under section 28(1) of the Federal Courts Act. She seeks review
of two decisions of the Umpire, known as CUB 67888 and CUB 67889.
[2]
The
Umpire’s decisions concern an overpayment of Employment Insurance (EI) premiums
to the applicant. There was no dispute that there was an overpayment; the issue
was the amount of that overpayment. The only issue before the Umpire was the
allocation of the applicant’s earnings. In identical decisions issued April 3,
2007, the Umpire found that there was no reason to interfere with the
allocation made by the Employment Insurance Commission.
[3]
The
applicant applied for reconsideration of the Umpire’s decisions, which was
denied on July 18, 2007 (those decisions are known as CUB 67888A and CUB
67889A).
[4]
Instead of
applying to this court for judicial review, the applicant attempted to resolve
the dispute “informally” through communications between October 2007 and July
2008 with various government agencies, including Service Canada, her M.P., and
the office of the Minister of Human Resources and Social Development.
[5]
The
applicant served her motion record on the respondent on July 25, 2008.
[6]
Section
18.1(2) of the Federal Courts Act states:
|
18.1
(2)
An application for judicial review in respect of a decision or an order of a
federal board, commission or other tribunal shall be made within 30 days
after the time the decision or order was first communicated by the federal
board, commission or other tribunal to the office of the Deputy Attorney
General of Canada or to the party directly affected by it, or within any
further time that a judge of the Federal Court may fix or allow before or
after the end of those 30 days.
|
18.1
(2)
Les demandes de contrôle judiciaire sont à présenter dans les trente jours
qui suivent la première communication, par l'office fédéral, de sa décision
ou de son ordonnance au bureau du sous-procureur général du Canada ou à la
partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour
fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou
accorder.
|
[7]
The
applicant has not stated when she received the Umpire’s initial decisions; the
respondent submits that the Commission received them on April 17, 2007, and
that it is reasonable to assume that the decision would have been communicated
to the applicant on or about the same date. Accordingly, the applicant should
have filed her application for judicial review on or before May 17, 2007.
Regardless of the precise date, it is clear that the applicant is approximately
fourteen months out of time.
[8]
The
decision whether to grant an extension of time is a discretionary one. This
court has set out the principles that should guide the exercise of that
discretion in Canada (Attorney General) v.
Hennelly (1999),
167 F.T.R. 158:
The proper
test is whether the applicant has demonstrated:
a. a continuing
intention to pursue his or her application;
b. the
application has some merit;
c. that no
prejudice to the respondent arises from the delay; and
that a
reasonable explanation for the delay exists.
[9]
Unfortunately,
the applicant has not provided a reasonable explanation for her delay in
bringing her application. Over the course of her attempts to resolve this issue
“informally”, it was unequivocally communicated to her in writing on three
separate occasions—on October 31, 2007, November 19, 2007, and December 20,
2007—that the proper avenue was to seek judicial review of the Umpire’s
decision to this court. She was also advised that she may need to apply for an
extension of time. In correspondence dated February 21, 2008, the applicant
indicated that she was “currently preparing an appeal to the Federal Court of
Appeals [sic]”, demonstrating her awareness that this was the proper course.
Yet she did not initiate this motion until July 25, 2008, some five months
later. I cannot find that this delay was reasonable in the circumstances.
[10]
I am also
not convinced that the applicant has demonstrated the merit of the underlying
application; she has not presented any evidence or submissions to suggest that
the Umpire may have made a reviewable error in his decisions. On the other
hand, the Commission has an interest in relying on the certainty and finality
of the Umpire’s orders (see Canada (Minister of Human Resources
Development) v. Gattellaro,
2005 FC 883).
[11]
Accordingly,
the applicant has not met the test for an extension of time and this motion is
dismissed. Neither party sought costs and none will be awarded.
"J.
Edgar Sexton"
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