Docket: 17-T-20
Citation:
2017 FC 674
Montréal, Quebec, July 11, 2017
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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BRUCE ARCHIBALD
and GÉRARD
ÉTIENNE
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Applicants
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
[1]
This is my third decision in relation to an
effort by the applicants to obtain an extension of the deadline for commencing
an application for judicial review. The applicants’ effort began with a motion
in writing filed on March 10, 2017. After receiving the respondent’s motion
record on March 29, 2017, the applicants filed a second motion on April 6,
2017, seeking leave to file a supplementary affidavit and an extension of the
deadline for filing reply submissions.
[2]
The applicants’ second motion was not opposed by
the respondent and I granted it on May 16, 2017, in a first decision in this
matter. The applicants were given until May 23, 2017 to serve and file their
supplementary affidavit and reply submissions. However, for reasons that were
unexplained at the time, this deadline was not respected. On June 2, 2017, and
without the applicants’ supplementary affidavit and reply submissions, I
rendered a second decision (2017 FC 544, or the June 2, 2017 decision), this
one on the initial motion to extend the deadline to commence a judicial review
application. I denied that motion; I was not satisfied that the applicants had
established either (i) a reasonable explanation for their delay in commencing a
judicial review application, or (ii) that the application had some potential
merit.
[3]
In this third motion, the applicants seek to
have the June 2, 2017 decision set aside pursuant to Rule 399(1)(b) of the Federal
Courts Rules, SOR/98-106 [Rules] on the basis that it was made “in the absence of a party who failed to appear by accident
or mistake”. In order to be successful in this motion, the applicants
must also disclose a prima facie case why the June 2, 2017 decision
should not have been made.
[4]
To address the first requirement (that the June
2, 2017 decision was made in the absence of the applicants who failed to appear
by accident or mistake), the applicants note that their counsel was aware of
the deadline to serve and file the supplementary affidavit and reply
submissions, and finalized these documents within the permitted time. The
applicants explain that the deadline was missed because their counsel’s
assistant failed, through inadvertence, to serve and file the documents by the
deadline despite counsel’s instructions, and counsel did not notice this
failure until after the Court’s June 2, 2017 decision.
[5]
To address the second requirement of Rule
399(1)(b) (a prima facie case why the June 2, 2017 decision should not
have been made), the applicants point to additional evidence and submissions
addressing the issues of (i) reasonable explanation for delay in commencing the
application, and (ii) some potential merit in the application.
I.
Analysis
A.
Whether the June 2, 2017 decision was made in
the absence of the applicants who failed to appear by accident or mistake
[6]
The respondent argues that this requirement is
not satisfied because the applicants did appear in the sense that their
initial motion record was received and duly considered. The respondent also
notes that the applicants’ failure to file their reply submissions in time to
be considered was not due to any error as to the deadline, but rather the
failure to take any steps to ensure that they had been filed.
[7]
Though the respondent cites several decisions of
this Court in which Rule 399 was held not to apply where the moving party had
commenced an application for leave and for judicial review but failed to
perfect it (Bergman v Canada (Citizenship and Immigration), 2006 FC 1082
[Bergman]; Olivier v Canada (Citizenship and Immigration), 2006
FC 1384; Boubarak v Canada (Citizenship and Immigration), 2003 FC 1239 [Boubarak]),
I have not been shown any decision which directly addresses the question of
whether an inadvertent failure to file reply submissions constitutes a failure
to appear where submissions in chief were previously filed. As it turns out, it
is not necessary for me to decide this question in the present case.
[8]
With regard to the question of whether a failure
to appear can be by accident or mistake when it results from a mistaken belief
that the filing was actually done, the respondent cites Ali v Canada
(Citizenship and Immigration), 2013 FC 335 [Ali], which refused to
apply Rule 399. In my view, this decision is distinguishable from the present
case in that the Court in Ali cited several concerns other than simple
confusion over the filing of documents.
[9]
In the present circumstances, the excuse of the failure
of the applicants’ counsel to ensure that the supplementary affidavit and reply
submissions had been filed would be easier to accept if it were not for the
following issues.
[10]
Firstly, the evidence of steps taken by the
applicants’ counsel is thin. The applicants have produced an e-mail from their
counsel to counsel’s assistant attaching the reply submissions in draft form
and indicating the deadline for filing. However, there is no evidence of explicit
instructions to file the supplementary affidavit and reply submissions.
Moreover, subsequent exchanges of correspondence between counsel and assistant,
which are referred to by the applicants, have not been produced. The absence of
follow-up by counsel is even more difficult to understand because they knew
that the signature of a solicitor would be required before the reply
submissions could be filed (see Rule 66(3)). Not having signed the reply
submissions, counsel should have understood that they had not been filed.
[11]
Secondly, the missed deadline for the filing of
the supplementary affidavit and reply submissions is not an isolated incident,
but rather part of a pattern. At each stage of this proposed proceeding, the
applicants have failed to respect the applicable deadline. This matter began
with a motion to extend the deadline to commence judicial review. The
applicants’ second motion (to file a supplementary affidavit in reply) was
filed after the deadline for filing reply submissions had passed. And now, the
applicants seek relief from a third missed deadline.
[12]
In my view, the failure of the applicants to
respect the deadline for filing the supplementary affidavit and reply
submissions is not the result of an excusable accident or mistake, but another
manifestation of a general lack of diligence by the applicants in this matter.
I note also that it is only in the narrowest of circumstances that the Rules
permit an Order setting aside an earlier dismissal of a proceeding: Bergman
at para 7; Boubarak; Fernandez v Canada (Citizenship and Immigration),
2001 FCT 909. For these reasons, I conclude that the applicants do not meet the
requirements of Rule 399, and the applicants’ motion should be dismissed.
B.
Whether the applicants have disclosed a prima facie case
why the June 2, 2017 decision should not have been made
[13]
Even if I were inclined to conclude that the first
requirement of Rule 399 was met in the present case, I would still dismiss the
applicants’ motion because I am not satisfied that the new evidence and
arguments in the applicants’ supplementary affidavit and reply submissions are
sufficient to make a prima facie case that my June 2, 2017 decision
should not have been made.
[14]
In the paragraphs below, I consider how the applicants’
new evidence and arguments might have affected my conclusions that they had
failed to establish either (i) a reasonable explanation for the delay in
commencing the application, or (ii) potential merit in the application.
(1)
Reasonable explanation for delay in commencing
the application
[15]
In their initial motion record, the applicants
argued that they had concerns about flaws in the report by the Public Security
Integrity Commissioner (which is the subject of the proposed judicial review)
but they elected not to pursue judicial review because they understood, based
on discussions with representatives of their employer (Canadian Food Inspection
Agency or CFIA), that their names would not be publicly associated with it.
[16]
My June 2, 2017 decision acknowledged that the
applicants may have had a good faith belief that their names would not be
publicly associated with the Commissioner’s report. However, having heard the
respondent’s arguments on the initial motion, I concluded that such a belief
was not reasonable as an explanation for the delay. In the decision, I noted
that the applicants had relied on representations from CFIA staff as to what
the Commissioner would do, even though the Commissioner acts independently of
CFIA and is governed by a statute that permits the naming of individuals.
[17]
The applicants’ reply submissions address the
genuineness of their belief, but are light as to its reasonableness. Mr.
Étienne’s supplementary affidavit indicates that, even on February 1, 2017,
when he was advised that his name was mentioned in the Commissioner’s report
and that the report would be made public, he understood that the mention was
tangential and that no findings or recommendations were made against him. This
is another in a line of unnecessary misunderstandings by the applicants.
[18]
As with the issue of the reason for the failure
to file the supplementary affidavit and reply submissions on time, I am struck
here by the applicants’ lack of diligence. In 2016 they had seen a draft of the
Commissioner’s report which proposed to make findings of gross mismanagement
against them. They made comments thereon, and profess to have been very
concerned about being identified in a negative way in the report. Then they
received letters dated January 10, 2017 from the Commissioner confirming that
his report contained these findings of gross mismanagement and indicating that such
findings would be tabled in Parliament. The letters also identified a
representative of the Commissioner to contact should the applicants have any
questions or concerns about the process. Despite the applicants’ professed
concerns, there is no evidence that they contacted the Commissioner’s
representative. Surprisingly, despite the professed importance of this matter
to the applicants, they relied heavily on discussions with CFIA staff as to
what the Commissioner would do. I disagree with the applicants’ assertion (at
paragraph 16 of their written representations) that Mr. Étienne (one of the
applicants) “was required to rely on the
representations provided by CFIA regarding the contents of the report.”
[19]
I remain of the view that any belief the
applicants had that their names would not be publicly associated with the
Commissioner’s report in more than a tangential way was unreasonable, and not a
reasonable explanation for their delay in commencing judicial review. In my
view, such a belief appears to have been no more than wishful thinking.
(2)
Potential merit in the application
[20]
In my June 2, 2017 decision, I concluded that
the applicants had not shown that their application had some potential merit
since their submissions did “not go beyond mere
assertions to provide details of their proposed arguments in sufficient detail
to allow me to conclude that they have some merit.”
[21]
The applicants’ submissions remain unparticularized
in their reply submissions. As in their submissions in chief, they cite some
arguments that they intend to make, but do not provide adequate particulars.
For example, they have not even submitted the impugned report and identified
the portions thereof that they assert contain reviewable errors. Neither have
they identified any of the witnesses they assert should have been interviewed
before issuance of the Commissioner’s report.
[22]
As in my June 2, 2017 decision, I have not been
given arguments in sufficient detail to permit me to conclude that they have
some potential merit.
II.
Conclusion
[23]
I am not convinced that the applicants’ new
submissions are sufficient to show a prima facie case that my June 2,
2017 decision should not have been made.
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