Docket:
A-106-13
Citation: 2014 FCA 134
Present: STRATAS
J.A.
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BETWEEN:
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UHA RESEARCH SOCIETY, JAMES EDWARD AUSTIN, HIDEAWAY II VENTURES
LTD. and ANDREW MILNE on their own behalf and on behalf of all eligible
category G licence holders
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Appellants
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and
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THE ATTORNEY GENERAL OF CANADA, MINISTER OF FISHERIES AND OCEANS and
DON CARTO
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Respondents
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REASONS
FOR ORDER
STRATAS J.A.
[1]
The appellants move for an adjournment of the
appeal, currently scheduled for June 9, 2014 because one of their counsel is
unavailable.
[2]
In these reasons, I determine the appellants’
motion. I also offer more general comments. These general comments are not
really in response to the appellants’ motion. Instead, they are in response to what
appears to be an increasing number of motions to adjourn appeal hearings. Something
needs to be said. Perhaps consideration might be given to a revised Practice
Direction on the point.
[3]
First, some background about how this Court schedules
appeal hearings.
[4]
The primary document in the scheduling of
appeals is the requisition for hearing under Rule 347. The Court’s Judicial
Administrator reviews that information. Based on the information contained in
the requisition for hearing, the Judicial Administrator causes the Court to
issue an order setting the date and location for the appeal hearing.
[5]
Appellants file the requisition for hearing
after the parties have completed all of the preparatory steps for an appeal. The
requisition for hearing, among other things, discloses the parties’
availability for a hearing in the next 90 days.
[6]
This Court manages its caseload well and so it
is often able to schedule the appeal hearing within the 90 day period. But
sometimes the only available dates fall after the 90 day period. The Judicial
Administrator deals with that by communicating with the parties to find an
acceptable date for the appeal hearing.
[7]
On occasion, as the appellant helpfully did
here, available dates are supplied beyond the 90 day period. Whether the dates
are within the 90 day period or beyond, absent further notification from the
parties the Court is entitled to rely on the information it has been given when
issuing an order setting the date and location for the appeal hearing.
[8]
I reiterate and underscore the fact that the end
result is an order of the Court scheduling the appeal hearing. A scheduling
order is no different from any other order of the Court – it is an instrument
of law, on its terms mandatory and effective.
[9]
Among other things, this means that an order,
once made, will stay in place unless there are significant new developments, marked changes in circumstances, or
compelling reasons of fairness: Del Zotto v. Canada (M.N.R.), [1996] 2
C.T.C 22, 195 N.R. 74 at paragraph 12 (F.C.A.); Gould v. Canada, 2009
TCC 107, [2009] 6 C.T.C. 2165 at paragraph 18. When considering whether
to bring a motion to vary a scheduling order – e.g., to adjourn an
appeal hearing – counsel must keep front of mind this legal test and the
significant threshold in it.
[10]
Scheduling orders
of this Court are not trivial matters that can be set aside whenever something
comes up for counsel.
[11]
This Court is
aware of the practicalities of scheduling and the difficulties some counsel
face. On occasion there can be a gap, sometimes a few months, between the
submission of a requisition for hearing and the setting of the date for the
hearing. And the schedules of some counsel, particularly senior counsel, can frequently
and rapidly change. But if a particular counsel’s presence at the hearing is really important,
then it should be equally important to advise the Court (specifically the
Judicial Administrator) of any changes to that person’s schedule before
the scheduling order is issued. Experienced counsel mark in their
schedules the dates they have offered up in a requisition for hearing as “held
for FCA hearing in X” along with a notation that if the date is offered up for
other purposes, the Judicial Administrator immediately be advised that the date
is no longer available.
[12]
In this case, the
appellants supplied the Court with information about the parties’ availability
in their requisition for hearing. Some months passed, with no update of that
information. Based on the information supplied in the requisition for hearing,
the Court ordered June 9, 2014 to be the hearing date.
[13]
In the appellants’
notice of motion to change that hearing date, the appellants simply say that
“not all counsel can be available on the date set for hearing,” the motion is
on consent, and “no prejudice would be suffered if the hearing date is
adjourned.” The affidavit contains no information whatsoever.
[14]
These
unparticularized, boilerplate, unsworn assertions fall way short of the mark.
The vague statement of unavailability is far from sufficient to vary a
scheduling order of this Court. The motion may be on consent, but that is also
insufficient: the Court has a strong interest in the timing of its hearings.
And there is prejudice: at this late date, the time allocated for hearing on
June 9, 2014 will likely go unused, resulting in waste of the Court’s
resources. Also this Court travels: adjournments often alter transportation,
accommodation and physical hearing arrangements made long in advance, sometimes
with cost to the public purse.
[15]
In this case, it
turns out that one or more of the appellants’ counsel are unavailable because
of a hearing in the Federal Court. Left unexplained is the lack of any update
to this Court.
[16]
Yes, mistakes can
happen and counsels’ schedules can be complex, dynamic and fluid. But all steps
must be taken to minimize the risk of mistakes. And if a mistake happens, full
adequate explanations must be given.
[17]
This Court, an
appellate court, is by no means bound to give way to other courts. However, in
this case I exercise my discretion, in the interests of comity, to accommodate
the scheduling of the hearing in the Federal Court. Therefore, the appeal
hearing on June 9, 2014 shall be adjourned.
[18]
Having written
these reasons – reasons written in response to a spate of recent incidents of
lack of regard for scheduling orders of this Court – I may well be less
accommodating in a future case.
[19]
On the issue of
rescheduling the appeal hearing, I note that the appellants have advised the
Court of the parties’ unavailability from September-December, 2014. The
Judicial Administrator has received no further update. This means that on every
other date during that period, all counsel are available. Absent any further
advice from the parties, the Court should now proceed to reschedule the appeal
on the basis of the information provided.
[20]
A motion
has been brought to quash the appeal for mootness. I direct that this motion be
heard at the same time as the appeal.
"David Stratas"
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