[1] This is an appeal from a decision of the Federal Court which dismissed an application for an extension of time to file an application for judicial review.

FACTS

[2] In 1998, the appellant was Chief, Coordinator and Briefing, Human Resources Development Canada. Her position was classified at the PM-06 level. In March 1998, she was asked to assume, in addition to her own position, the role of Acting Director, Federal-Provincial and Client Relations beginning in April 1998, when the incumbent in that position was on a secondment to another position. Sometime after agreeing and working in the combined position, she was advised by her superior that it was management's intent to formally combine her two roles once the incumbent resigned, which was expected to occur. The appellant says it was her understanding that a classification review would take place at that time.

[3] The appellant says that at a meeting with the Assistant Deputy Minister, Labour, on February 18, 2000, she was advised that her combined role would be submitted to a classification review which she says she understood to be retroactive to April 1998. However, on May 19, 2000, the appellant says she received formal notification that her "coordinating and briefing" functions would be transferred to the Assistant Deputy Minister's office, effective May 23, 2000.

[4] The appellant says that this notification came as a "betrayal and as a disillusionment" to her and demonstrated that management had no intention of carrying out the classification review as promised, but would deal with the situation by dismantling the responsibilities of the combined role.

[5] The appellant signed a grievance on May 24, 2000, which stated:

Position occupied from April '98 to May 2000 not properly classified.

The corrective action she requested was:

Classification review of the position.

[6] The grievance was presented to management by her union on June 23, 2000.

[7] The grievance proceeded through the steps of the grievance procedure under her collective agreement. On May 6, 2003, the final level decision on her grievance was rendered denying the grievance. The appellant says she received e-mail notification of the decision on May 13, 2003, and a written copy on May 14, 2003.

[8] The final level grievance decision denying the appellant's grievance was based on procedural grounds.

I note that your grievance was presented more than twenty-five (25) days after you were notified of the decision that gave rise to them, more specifically, almost two years after the fact. It is therefore untimely in accordance with Article 18.10 of the Program and Administration Services collective agreement, which states that a grievance must be filed within 25 days of the employee becoming aware of the decision that gave rise to the grievance and as such is denied.

[9] Under subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, an application for judicial review of the May 6, 2003, decision was required to be filed in the Federal Court on or about June 13, 2003. It was not. Instead, the appellant had various communications with her union, in which she indicated her dissatisfaction with the May 6, 2003, decision and that she was interested in some form of remedial action. Apparently, she wished to have the union pursue the matter further. From these communications, it is apparent that the union was not supportive, on July 2, 2003, telling her that her recourse was to retain counsel if she wished, and to obtain independent legal advice as to the course of action she should follow.

[10] The date the appellant retained counsel is not in the record, but, at least by August 19, 2003, counsel had been retained. Thereafter, there was further communication with her union culminating in a letter from the union dated September 2, 2003, advising the appellant that, while it was open to her at her own expense to seek judicial review in the Federal Court, in the opinion of the union, she would not be successful.

[11] On September 3, 2003, almost three months after the time for filing a judicial review application had expired, the appellant filed a Notice of Motion in the Federal Court for an extension of time to file an application for judicial review.

[12] The motion was considered under rule 369 of the Federal Court Rules, 1998 SOR/98-106 as amended, on the written material filed. By order dated October 24, 2003, the motion to extend time was dismissed. The reasons of the motions judge are brief:

UPON considering the criteria set out in Grewal v. Canada (MEI), [1985] 2 F.C. 263 (C.A.), as explained by Council of Canadians v. Canada (Director of Investigation and Research) (1997), 212 N.R. 254 (F.C.A.), and determining that I am not satisfied that the applicant has been diligent and has provided a sufficient reason justifying his [sic] delay to act. The Court also notes that there is some doubt as to the merits of the application itself.

THIS COURT ORDERS that:

1. The motion is dismissed.

ANALYSIS

[13] I have had the benefit of hearing oral argument which was not available to the motions judge. Further, the motions judge cannot be faulted for the brevity of her reasons. On a motion to extend time, extensive reasons are normally not necessary. It will be most infrequent that this Court will interfere with the discretion exercised by a motions judge on an application to extend time.

[14] The decision to allow or refuse an extension of time is discretionary in nature. The test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations. See Reza v. Canada, [1994] 2 S.C.R. 394 at 404.

[15] In Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263, Thurlow C.J. identified considerations that may be relevant in an application to extend time. These considerations include:

1. whether the applicant intended to bring the judicial review within the period allowed for bringing the application and whether that intention was continuous thereafter;

2. the length of the period of the extension;

3. prejudice to the opposing party;

4. the explanation for the delay; and

5. whether there is an arguable case for quashing the order the applicant wishes to challenge on judicial review.

[16] However, these considerations are not rules that fetter the discretionary power of the Court. At pages 277-278 of Grewal, Thurlow C.J. states:

But, in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not fettered.

[17] Therefore, it is open to a motions judge to determine which factors are to be taken into account based on the facts of a particular case. Also see Council of Canadians v. Canada (Director of Investigation and Research) (1997), 212 N.R. 254 (F.C.A.) per Hugessen J.A. (as he then was) at paragraph 2. Once the relevant considerations are selected, sufficient weight must be given to each of them.

[18] In the present case, I am not satisfied that sufficient weight was given to the merits of the appellant's proposed judicial review.

[19] The final level grievance decision appears to be based on the premise that the appellant was grieving a decision taken in April 1998, when she assumed her combined roles. However, according to the material filed on the extension of time application, the appellant's grievance arose because of the decision of management not to submit the appellant's position to classification review. The appellant was notified of that decision on May 19, 2000. Her grievance was presented to management on June 24, 2000, within the time for commencing the grievance under the appellant's collective agreement. It does not appear the appellant was cross-examined on her affidavit, and the respondent has submitted no evidence contradicting what the appellant has said in her affidavit.

[20] It would appear on the basis of the evidence filed on the motion to extend time, that the final level grievance decision may well be in error. If the appellant's evidence on the judicial review is the same as on the motion to extend time and the respondent files no contradictory evidence, the decision giving rise to the judicial review would be the one of which she was notified on May 19, 2000. Her grievance would have been presented within the time prescribed by her collective agreement. The final level grievance decision, which seems to have considered the time she assumed her combined roles as the decision giving rise to the grievance, would then be in error. It is not for this Court to decide the merits of the appellant's proposed judicial review, and the evidence on the judicial review may well be different than on the motion to extend time. However, far from there being doubt about the merits of a proposed judicial review, the evidence before the motions judge would suggest a strong case on the part of the appellant.

[21] I acknowledge that there is an indication in a letter from the union and copied to the appellant that the matter of classification is outside the jurisdiction of an adjudication under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35. It appears that it was for this reason that the union did not recommend referral of the grievance to adjudication. I do not know whether the union is correct in this opinion. Counsel for the appellant in this Court explained that the appellant was not contesting a classification decision but rather the breach of an agreement to submit her position to reclassification. In any event, there is no other information in the record to shed further light on the issue.

[22] If it was this opinion that caused the motions judge to have doubts as to the merits of the appellant's proposed judicial review application, I think that doubt was misplaced. The sole issue on the proposed judicial review is whether the procedural ruling of the final level grievance decision is correct. Before the question of access to arbitration arises, the judicial review would have to determine whether the final level grievance decision should be quashed and the matter remitted for redetermination.

[23] For these reasons, in my respectful opinion, the learned motions judge did not accord sufficient weight to the merits of the proposed judicial review. Of course, the motions judge did not rest her decision to dismiss the appellant's extension application solely on her view of the merits of the proposed judicial review. She also found that the appellant was not diligent and did not provide a sufficient reason to justify her delay to act. It was her consideration of all these factors that caused the motions judge to exercise her discretion to dismiss the application. However, had she given sufficient weight to the merits of the appellant's proposed judicial review, it is not obvious that her decision would have been the same.

[24] In these circumstances, it is open to this Court to remit the matter to the motions judge for redetermination or, alternatively, to exercise its discretion de novo. In view of the fact that the matter has been outstanding for over four years since the grievance procedure was commenced, I am of the opinion that to expedite this process, it is appropriate case for this Court to determine the matter.

[25] The appellant's deficiencies in her explanation for the delay do stand against her. On the other hand, the delay is less than three months. The respondent concedes it will suffer no prejudice if the extension is granted. And, as I have indicated, the evidence suggests that the appellant may have a strong case for judicial review.

[26] For these reasons, I would allow the appeal and allow the motion to extend the time for the appellant to commence her application for judicial review. The application for judicial review should be filed on or before September 30, 2004.

"Marshall Rothstein"

J.A.

"I agree

Marc Nadon J.A."

"I agree

K. Sharlow J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-554-03

(APPEAL FROM A JUDGMENT OR ORDER OF THE FEDERAL COURT DOCKET NO. 03-T-43)

STYLE OF CAUSE: VIRGINIA JAKUTAVICIUS

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: August 31, 2004

REASONS FOR JUDGMENT: ROTHSTEIN J.A.

CONCURRED IN BY: NADON J.A.

SHARLOW J.A.

DATED: September 8, 2004

APPEARANCES:

John R.S. Westdal

FOR THE APPELLANT

Michael Roach

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Sevigny Law Office

Ottawa, Ontario

FOR THE APPELLANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

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Jakutavicius v. Canada (Attorney General), 2004 FCA 289

Citations2004 FCA 289

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2004 FCA 289