Docket: A-42-15
Citation:
2016 FCA 91
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CORAM:
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RYER J.A.
NEAR J.A.
BOIVIN J.A.
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BETWEEN:
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RUBY-ANN
RUFFOLO
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Appellant
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and
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FRASER VALLEY
INSTITUTION FOR WOMEN
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British
Columbia, on March 16, 2016).
NEAR J.A.
[1]
This is an appeal from an order of Justice James
O'Reilly of the Federal Court (the "Judge"), dated November 4, 2014
in Docket 14-T-28, dismissing a motion brought by Ms. Ruby-Ann Ruffolo seeking
a second extension of time to file an application for judicial review of a
decision of the Acting Senior Deputy Commissioner of Correctional Service
Canada, dated January 17, 2014 (the "Grievance Decision"), which
denied a grievance that Ms. Ruffolo filed pursuant to the Corrections and
Conditional Release Act, S.C. 1992, c. 20 and the Corrections and
Conditional Release Regulations, S.O.R./92-620.
[2]
Ms. Ruffolo missed the March 21, 2014 deadline
for filing an application for judicial review of the Grievance Decision. She
brought an initial motion for an extension of time to file that application and
also for an order appointing counsel to represent her and for a waiver of
registry filing fees. By order dated May 22, 2014, the Judge granted the
extension of time, allowing Ms. Ruffolo until June 23, 2014 to file her
application. He denied her requests for the appointment of counsel and for a waiver
of filing fees.
[3]
In granting the May 22, 2014 extension order,
the Judge determined that Ms. Ruffolo's application had merit, that she had a
continuing intention to pursue the application, that she had a reasonable
explanation for the delay and that the respondent would not be prejudiced by
the delay.
[4]
Ms. Ruffolo attempted to file the application
for judicial review prior to the June 23, 2014 deadline but was
unsuccessful because her notice of application did not comply with the Federal
Courts Rules, S.O.R./98-106 and the registry refused to accept it for
filing. An application for reconsideration of the Judge's denial of Ms.
Ruffolo's request for a waiver of filing fees was also rejected by the registry
because it was presented to the registry after the expiry of the time period
prescribed in Rule 397 of the Federal Courts Rules.
[5]
On August 19, 2014, Ms. Ruffolo brought a second
motion for another order extending the time further to file her judicial review
application, and for an order extending the time to file her reconsideration
motion and an order reconsidering her request for a waiver of filing fees.
[6]
The Judge rejected the application for another
extension of time. He observed that the justification had been "scant" for Ms. Ruffolo's motion that gave rise
to the May 22, 2014 order and that he was unpersuaded that Ms. Ruffolo had
provided a satisfactory explanation for her failure to meet the June 23, 2014
deadline, as well as her delay in bringing the motion so long after the June
23, 2014 deadline had expired. As a result, he denied Ms. Ruffolo's request for
a second extension of time and went on to conclude that this denial made it
unnecessary for him to consider the additional relief that Ms. Ruffolo had
requested.
[7]
In appellate review of a discretionary decision
on the part of a Federal Court Judge to decline a request for an extension of
time to file an application for judicial review, the reviewing Court must show
considerable deference to the decision under review.
[8]
In the present circumstances, Ms. Ruffolo is
essentially asking this Court to reweigh the evidence that was presented to the
Judge. This is not our function. In exercising his discretion to decline the
motion, the Judge found that Ms. Ruffolo had offered no satisfactory
explanation for her failure to file the notice of application within the time
stipulated by his prior order. Whether or not we would have reached the same
conclusion is not the issue. Rather, the issue is whether or not his conclusion
was open to him based upon the record before him. In our view, it was.
[9]
Ms. Ruffolo has attempted to provide additional
evidence and explanations for the delay in filing her application for judicial
review of the Grievance Decision in her materials filed on this appeal. The
introduction of new evidence on appeal is impermissible in the absence of an
order from the Court, which was not requested by Ms. Ruffolo prior to the
hearing. Without such an order, this Court is restricted to a consideration of
the record that was before the Judge and, as noted above, we are of the view
that the record before him was sufficient to justify his conclusion that Ms.
Ruffolo had failed to provide a reasonable explanation for the delay in filing
her application.
[10]
For these reasons, we are not persuaded that the
Judge made any reviewable error in denying Ms. Ruffolo's motion for a second
extension of time to file her judicial review application. Similarly, we are of
the view that the Judge correctly declined to consider the additional relief
that Ms. Ruffolo had requested. Accordingly, the appeal will be dismissed with all
inclusive costs in the amount of $50.00.
"D.G. Near"
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