Date: 20040402
Docket: A-470-03
Citation: 2004 FCA 141
Before: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
Sylvio Belmonte et al.
Applicants
v.
Longshoremen's Union
CUPE Local 375
and
Maritime Employers Association
Respondents
Written motion heard without appearance by parties.
REASONS FOR ORDER: PELLETIER J.A.
Date: 20040402
Docket: A-470-03
Before: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
Sylvio Belmonte et al.
Applicants
v.
Longshoremen's Union
CUPE Local 375
and
Maritime Employers Association
Respondents
REASONS FOR ORDER
PELLETIER J.A.
[1] The Court has before it a motion for an extension of time to file a notice of application against a decision by the Canada Industrial Relations Board (the Board). The Board dismissed the applicants' complaint that the respondent Longshoremen's Union CUPE Local 375 (the Union) was guilty of unfair practices involving the applicants. The Board dismissed the applicants' complaint on the grounds that it was filed beyond the deadline, and what is more, the applicants had no standing as they were not members of the Union in question.
[2] Following the filing of the notice of application the respondent Union filed a motion to strike, alleging among other arguments that the notice was filed beyond the deadline without leave. The Court suspended review of the matter for a time to enable the applicants to file a motion for an extension of time, if they wished to do so. The motion at bar is the result.
[3] In support of their motion, the applicants filed the affidavit of counsel handling the matter. The latter thus had to depose to an affidavit and present arguments to the Court based on that affidavit, contrary to Rule 82 of the Federal Court Rules, 1998. Counsel defended his affidavit by alleging that his arguments and affidavit did not affect the substance of the case, but it is clear that they were useful only insofar as they dealt with the substance, namely the explanation for the delay in filing the notice of application.
[4] The rule is clear and based on a consistent principle of professional ethics: counsel should not be the subject of the litigation himself. This rule is well known and must be observed for the protection of clients, if not of counsel himself. The Court finds that counsel's affidavit is inadmissible for purposes of the motion for an extension of time.
[6] The tests which a party claiming an extension of time must meet have been set out in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 at paragraph 3:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[6] In the case at bar, the decisive test is showing that the application is a valid one. In their arguments, the applicants relied on the fact that the reasons accompanying the suspension of review of the matter mentioned the fact that two of the arguments submitted in support of the motion to strike dealt with questions of factual and legal complexity. In doing so, the applicants were dealing with an irrelevant point. The question is not whether the motion to strike is valid, but whether the notice of application is valid. This raises questions which do not appear in the motion to strike. In fact, the notice of application raises four grounds, including the absence of procedural fairness and the fact that the Board relied on the report prepared by its officer Mr. Poch. There was nothing in the applicants' arguments dealing with the validity of these allegations, which needless to say had nothing to do with the fact that the Board dismissed the applicants' complaint because the latter were not members of the Union which they accused of unfair practices toward them, and so had no standing in the matter. Accordingly, there is nothing before the Court on which it could conclude prima facie that the notice of application is valid.
[17] For these reasons, the motion for an extension of time will be dismissed. The respondents will be entitled to their costs.
ORDER
The motion for an extension is dismissed. The respondents will be entitled to their costs.
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"J.D. Denis Pelletier"
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J.A.
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Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
DOCKET: A-470-03
STYLE OF CAUSE: Sylvio Belmonte et al.
Applicants
v.
Longshoremen's Union
CUPE Local 375
and
Maritime Employers Association
Respondents
WRITTEN MOTION HEARD WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER: PELLETIER J.A.
DATE OF REASONS: April 2, 2004
WRITTEN SUBMISSIONS BY:
Robert Astell For the applicants
Isabelle Leblanc For the Longshoremen's Union CUPE Local 375
Marie-Hélène Jetté For the Maritime Employers Association
SOLICITORS OF RECORD:
Astell, Leblanc, Downs For the applicants
Montréal, Quebec
Lamoureux, Morin, Lamoureux For the Longshoremen's Union CUPE Local 375
Longueuil, Quebec
Ogilvy, Renault, s.e.n.c. For the Maritime Employers Association
Montréal, Quebec
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