Virdi v. Canada (Minister of National Revenue), 2006 FCA 38

Date: 20060130

Docket: A-195-05

Citation: 2006 FCA 38

CORAM:        DESJARDINS J.A.

DÉCARY J.A.

SEXTON J.A.

BETWEEN:

                                                          JASVIR SINGH VIRDI

                                                                                                                                            Appellant

                                                                           and

                                            MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                Heard at Vancouver, British Columbia, on January 30, 2006.

          Judgment delivered from the Bench at Vancouver, British Columbia, on January 30, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                  DÉCARY J.A.

Date: 20060130

Docket: A-195-05

Citation: 2006 FCA 38

CORAM:        DESJARDINS J.A.

DÉCARY J.A.

SEXTON J.A.

BETWEEN:

                                                          JASVIR SINGH VIRDI

                                                                                                                                            Appellant

                                                                           and

                                            MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

           (Delivered from the Bench at Vancouver, British Columbia, on January 30, 2006)

DÉCARY J.A.

[1]                We have not been persuaded that Mr. Justice von Finckenstein made any reviewable error in the exercise of his discretion when he dismissed the appellant's motion for an extension of time (2005 FC 529).

[2]                As the moving party, the appellant bore the burden of establishing the elements necessary for an extension of time. Generally speaking, this must be done by affidavit evidence sworn by the moving party himself that can be subject to cross-examination.

[3]                In the case at bar, the appellant did not see fit to swear his own affidavit. Instead, he asks the Court to find that he had a reasonable explanation for his delay, a continuing intention to seek judicial review and an arguable case solely on the basis of an affidavit sworn by his lawyer's secretary. This failure to provide his own evidence to the Court was, in this case, fatal to his motion.

[4]                This appeal will be dismissed with costs.

(Sgd.) "Robert Décary"

J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               A-195-05

(APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE von FINCKENSTEIN DATED APRIL 19^th 2005

STYLE OF CAUSE:                          Jasvir Singh Virdi v

Minister of National Revenue

PLACE OF HEARING:                                                         Vancouver BC

DATE OF HEARING:                                                           January 30^th 2006

REASONS FOR JUDGMENT OF THE COURT:              Desjardins J.A.

Décary        J.A.

Sexton        J.A.

DELIVERED FROM THE BENCH BY:                             Décary J.A.

APPEARANCES:

SOLICITORS OF RECORD: