Date: 20040205
Docket: A-382-03
Citation: 2004 FCA 58
Present: SHARLOW J.A.
BETWEEN:
ARTHUR BERNIER
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario on February 5, 2004.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20040205
Docket: A-382-03
Citation: 2004 FCA 58
Present: SHARLOW J.A.
BETWEEN:
ARTHUR BERNIER
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] The applicant Arthur Bernier seeks judicial review of a decision of the Pension Appeals Board in which the Board, although apparently sympathetic, considered itself unable to grant Mr. Bernier the remedy he sought. Mr. Bernier's essential complaint seems to be that, as a result of a division of unadjusted pensionable earnings obtained by his spouse upon their separation, their aggregate pension income declined by $66.32 per month. It is not difficult to understand why Mr. Bernier considers himself aggrieved.
[2] Procedural difficulties have arisen in this matter, perhaps because Mr. Bernier, who is self-represented, may not understand the Federal Court Rules, 1998. It also appears that Mr. Bernier does not understand that this Court is not the same as the Pension Appeals Board.
[3] The notice of application for judicial review was issued on August 20, 2003. Within 30 days of the issuance of the notice of application for judicial review (that is, by September 19, 2003), Mr. Bernier should have served and filed supporting affidavits and documentary exhibits pursuant to Rule 306. He did not do so.
[4] Despite that failure, the Minister complied with Rule 307 on October 20, 2003 by filing an affidavit relating to its position in this matter. Mr. Bernier was entitled to conduct a cross-examination on that affidavit within 20 days of the date on which it was filed (that is, by November 10, 2003). I assume he did not do so and that he probably does not wish to do so. In any case, he was obliged by Rule 309 to file an "applicant's record" within 20 days of November 10, 2003, which was December 1, 2003. He did not do so.
[5] On December 22, 2003, the Minister filed a notice of motion seeking an order dismissing Mr. Bernier's application for judicial review for failure to comply with Rule 309. In an apparent attempt to respond to that motion, Mr. Bernier corresponded with the Pension Appeals Board, rather than this Court, to seek an extension of time to file his "applicant's record". The Pension Appeals Board received that correspondence on January 2, 2004, and under cover of a letter dated January 6, 2004, forwarded that correspondence to this Court. The correspondence is apparently intended to respond to the Minister's motion to dismiss, and to provide the information required under Rule 309.
[6] It appears that Mr. Bernier also sent a copy of that correspondence to Mr. Glen Sheskay, who is counsel for the Minister in this application. I assume Mr. Sheskay received the correspondence in early January, 2004.
[7] All litigants have an obligation to comply with the Rules, even if they are not represented by a lawyer. However, a failure to comply with the Rules need not be fatal if there is a reasonable and bona fide attempt to cure the failure, especially if the failure can be cured relatively easily and the other party has not suffered any substantial prejudice. I see no evidence that the Minister will suffer any prejudice if Mr. Bernier is now permitted to cure the procedural defects in this matter.
[8] Therefore, I will dismiss the Minister's motion without costs, and set a timetable to be followed by Mr. Bernier to ensure that his matter is ready for hearing in this Court within a reasonable time. I will also ask the Registry to provide Mr. Bernier with a copy of the Federal Court Rules, 1998, if that has not already been done.
[9] A review of the Court file discloses that the Minister is the only respondent named in the notice of application for judicial review. However, Mr. Bernier's spouse, Norma G. Bernier, was a party in the proceedings before the Pension Appeals Board. She may be affected by the outcome of this application: Rule 303(1)(a). For that reason, Ms. Bernier should have been named as a respondent in this application. I will make an order amending the style of cause to add Ms. Bernier as a respondent, and providing instructions to Mr. Bernier for service of the notice of application and other material on Ms. Bernier. She will then have the option of indicating, by filing a notice of appearance, that she wishes to participate in the proceedings in this Court. If she does not wish to participate, she need not file anything.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-382-03
STYLE OF CAUSE: ARTHUR BERNIER v.
MINISTER OF HUMAN RESOURCES DEVELOPMENT
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Sharlow J.A.
DATED: February 5, 2004
WRITTEN REPRESENTATIONS BY:
|
Mr. Arthur Bernier
|
APPLICANT ON HIS OWN BEHALF
|
|
Mr. Glenn Sheskay
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Mr. A.V. Bernier
Minden, ON
|
FOR THE APPLICANT
|
|
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa
|
FOR THE RESPONDENT
|
Email this Content