Date: 20041001
Docket: A-233-03
Citation: 2004 FCA 326
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
SHELDON BLANK
Appellant
(Respondent in Cross-Appeal)
and
THE MINISTER OF JUSTICE
Respondent
(Appellant in Cross-Appeal)
"Dealt with in writing without appearance of parties."
Reasons for Order and Order delivered at Ottawa, Ontario, on October 1, 2004.
REASONS FOR ORDER AND ORDER: PELLETIER J.A.
[1] The Respondent, the Minister of Justice, seeks an order suspending the effect of the judgment in the cross-appeal during the period limited for filing an application for leave to appeal the decision to the Supreme Court of Canada. The Minister's motion is brought pursuant to Rule 369 which permits motions to be disposed of without an oral hearing. The appellant, Mr. Blank, opposes the motion and requests that the matter be dealt with at an oral hearing because of the impact of the order sought upon his case. As a member of the panel which heard the appeal and cross-appeal, I am familiar with the file and I have had the benefit of hearing from Mr. Blank the ruinous effect of these various proceedings upon him. I am very much aware of the impact of the Minister's motion, and of any application for leave to appeal, upon his ongoing litigation. That said, I do not believe that the issues raised by the motion would benefit from an oral hearing.
[2] The Minister argues that this court has the jurisdiction to grant relief the relief he seeks by virtue of section 65.1 of the Supreme Court Act, which reads as follows:
| 65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.
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65.1 (1) La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la partie qui a signifié et déposé l'avis de la demande d'autorisation d'appel, ordonner, aux conditions jugées appropriées, le sursis d'exécution du jugement objet de la demande.
(2) La juridiction inférieure ou un de ses juges, convaincu que la partie qui demande le sursis a l'intention de demander l'autorisation d'appel et que le délai entraînerait un déni de justice, peut exercer le pouvoir prévu au paragraphe (1) avant la signification et le dépôt de l'avis de demande d'autorisation d'appel.
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[3] The Minister relies upon subsection 65.1(2) since he has not yet filed his application for leave to appeal. The affidavit material discloses that counsel for the Minister is seeking instructions to seek leave to appeal the dismissal of the cross-appeal but because the approval process is multi layered, no decision has yet been made. Strictly speaking, seeking instructions to seek leave to appeal does not satisfy the requirement that the party seeking the stay "intends to apply for leave to appeal." It is not until such instructions are received that it can be said that the party, the Minister, intends to apply for leave to appeal.
[4] The fact that the Minister has not decided to seek leave to appeal is apparent from the relief sought in the motion:
a) an Order suspending the effect of the judgment in the cross-appeal of the Federal Court of Appeal, dated September 8, 2004 until November 8, 2004, or, should the Minister of Justice make an application to the Supreme Court of Canada to seek leave to appeal the decision of September 8, 2004, until the day of judgment of the Supreme Court of Canada on the application for leave to appeal.
(Emphasis added.)
It is clear from this that it cannot be said that, as of the date of the motion, the Minister intends to seek leave to appeal.
[5] As a result, the motion for a stay is premature and must be dismissed, without prejudice to the Minister's right to reapply if and when he decides to seek leave to appeal the dismissal of the cross-appeal.
[6] Mr. Blank is entitled to his costs, which I fix at $350 inclusive of disbursements.
ORDER
IT IS HEREBY ORDERED THAT the motion for an Order suspending the effect of the judgment in the cross-appeal of the Federal Court of Appeal, dated September 8, 2004 until November 8, 2004, or, should the Minister of Justice make an application to the Supreme Court of Canada to seek leave to appeal the decision of September 8, 2004, until the day of judgment of the Supreme Court of Canada on the application for leave to appeal and for such further and other relief that this Honourable Court deems just is dismissed as being premature, with costs to the appellant Sheldon Blank, which are fixed at $350 inclusive of disbursements.
"J.D. Denis Pelletier"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-233-03
STYLE OF CAUSE: Sheldon Blank v. The Minister of Justice
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES:
REASONS FOR ORDER
AND ORDER: PELLETIER J.A.
DATED: OCTOBER 1, 2004
WRITTEN REPRESENTATIONS BY:
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Sheldon Blank
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ON HIS OWN BEHALF
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Christopher Rupar
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Sheldon Blank
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ON HIS OWN BEHALF
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Morris Rosenberg
Deputy Attorney General of Canada
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FOR THE RESPONDENT
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