Docket: 17-T-20
Citation:
2017 FC 544
Ottawa, Ontario, June 2, 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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JUDGMENT AND REASONS
[1]
This decision concerns a motion in writing under
Rule 369 of the Federal Courts Rules, SOR/98-106 [the Rules],
seeking an extension of the deadline for commencing an application for judicial
review of a January 10, 2017 decision by the Public Security Integrity Commissioner
(the Commissioner) finding that allegations of gross mismanagement against the
applicants were founded.
I.
Facts
[2]
The applicants are Bruce Archibald, former
President of the Canadian Food Inspection Agency (CFIA), and Gérard Étienne,
then Vice President of Human Resources of CFIA.
[3]
The applicants were advised in March 2016 of the
Commissioner’s intention to investigate the allegations against them. In August
2016 the applicants received a preliminary investigation report from the
Commissioner finding that the applicants had committed gross mismanagement. The
applicants responded to the preliminary investigation report and provided names
of witnesses who should be interviewed.
[4]
The applicants claim that, when they received
the Commissioner’s January 10, 2017 decision confirming the finding of gross
mismanagement, they received assurances from the current CFIA President, as
well as its Executive Director, Values, Integrity and Conflict Resolution, that
the matter would be dealt with internally and that the Commissioner’s report on
the matter would not contain their names. However, when the Commissioner’s
report was tabled before Parliament in February 2017 it did identify the
applicants. They were also identified in a related press release.
[5]
The applicants’ claim that they initially
decided not to seek judicial review of the Commissioner’s decision based on the
understanding that their names would not be publicly associated with it. They
argue that, once they learned that their understanding was incorrect, they
acted diligently to bring the present motion.
[6]
For its part, the respondent disputes some
aspects of the applicants’ description of their discussions with
representatives of the CFIA. The respondent also argues that any belief the
applicants may have had that their identities would not be made known to the
public was unreasonable.
II.
Preliminary Issue
[7]
The applicants’ motion record was filed on March
10, 2017. The respondent’s motion record was duly filed on March 29, 2017. Rule
369 of the Rules provides that the moving party in a motion in writing
may serve and file written representations in reply within four days after
receiving the respondent’s record. The Rules do not provide for the
filing of any supplementary affidavit by the moving party at the reply stage.
In this case, the applicants brought a second motion, this one for an order (i)
permitting them to file a supplementary affidavit, and (ii) extending the
deadline for filing the reply representations. With no opposition to this
second motion by the respondent, I allowed the requested permission and
deadline extension. The applicants were therefore entitled to file the proposed
supplementary affidavit and their reply representations within seven days
thereafter.
[8]
For reasons that are not clear to me, the
applicants failed to file either the supplementary affidavit or the reply
representations within the revised period allowed. Accordingly, the applicants’
original motion for an extension of the deadline to commence a judicial review
application will be considered on the basis of the parties’ respective motion
records.
III.
Analysis
[9]
The test applicable to a request for a deadline
extension was provided by the Federal Court of Appeal in Canada (Attorney
General) v Larkman, 2012 FCA 204 at paras 61-62 [Larkman]. The
following questions are relevant:
- Did the moving
party have a continuing intention to pursue the application?
- Is there some
potential merit to the application?
- Has the opposing
party been prejudiced from the delay?
- Does the moving party have a reasonable explanation for the
delay?
[10]
It is not necessary that all four questions be
answered in favour of the moving party. The overriding consideration is whether
the interests of justice are served.
[11]
The respondent argues that three of these
questions work against the applicants. Specifically, the respondent argues that
the applicants’ have failed to show any of the following: (i) a reasonable
explanation for the delay, (ii) a continuing intention to pursue the
application, or (iii) some potential merit to the application. I address each
of these issues in the paragraphs below.
A.
Does the moving party have a reasonable
explanation for the delay?
[12]
The applicants argue that they always had
concerns about the fairness of the Commissioner’s finding of gross mismanagement,
but they decided not to pursue judicial review on the strength of the
assurances they received from CFIA representatives that their identities would
not be made public in association with the Commissioner’s report. The
applicants also argue that they took action diligently once they learned that
their identities had indeed been made public.
[13]
The respondent argues that any reliance by the
applicants on discussions with CFIA staff was unreasonable and insufficient to
excuse their delay in seeking judicial review. Firstly, the respondent argues
that the applicants knew or should have known that their names would be made
public in association with the Commissioner’s finding of gross mismanagement.
Each of the CFIA representatives whose assurances are cited by the applicants
submitted affidavits clarifying their discussions with the applicants and
establishing that they did not amount to clear assurances of the kind alleged
by the applicants. One of the affidavits also indicates that the applicant Mr.
Étienne was told on February 1, 2017, that the Commissioner’s report would be
tabled in Parliament and that he was named in the report. Also, the respondent
argues that a minimum of diligence by the applicants would have revealed to
them that the Commissioner publishes his findings and has named individuals in
the past.
[14]
A second basis for the respondent’s argument
that the applicants have not excused their delay in seeking judicial review is
that they rely on representations by CFIA staff who obviously do not bind the
Commissioner whose decision is in issue. The statute by which the Commissioner
is governed provides that findings of wrongdoing are submitted to Parliament
and that names of individuals may be disclosed. The respondent argues that any
reliance by the applicants on their discussions with CFIA representatives was
unreasonable.
[15]
I agree with the respondent that the applicants
have failed to establish a reasonable excuse for their delay in seeking
judicial review. Though it is possible that the applicants initially had a good
faith belief that their names would not be made public in association with the
Commissioner’s report, it was not reasonable for them to form that belief, even
if it was in good faith, based on their discussions with CFIA representatives.
[16]
This factor favours dismissing the applicants’
motion.
B.
Did the moving party have a continuing intention
to pursue the application?
[17]
The respondent notes that, by the applicants’
own admission, they made a deliberate decision not to pursue judicial review, and
they cannot therefore show the required continuing intention.
[18]
The applicants cite the fact that the decision
not to pursue judicial review was based on their already-mentioned good faith
belief that their names would not be publicly associated with the Commissioner’s
report.
[19]
Despite my conclusion above that the applicants’
belief was unreasonable, I accept that it may indeed have been in good faith. I
have some sympathy for a potential applicant who, in deciding not to commence
legal proceedings, has relied on certain information that turned out later to
be incorrect. I would have that sympathy even if that reliance was not
reasonable. Whereas the question as to whether the applicants had a reasonable
explanation for their delay in commencing legal proceedings requires an objective
assessment of the facts, the present question as to whether the applicants had
a continuing intention to pursue legal proceedings requires a subjective
assessment of the facts.
[20]
I am satisfied that the applicants’ intention to
pursue their application may well have been continuing. This factor slightly
favours granting the applicants’ motion.
C.
Is there some potential merit to the
application?
[21]
The entirety of the applicants’ submission
concerning potential merit is found in a single paragraph in their written
representations. They assert that their application has merit, and they
identify certain arguments that they intend to make. However, the applicants do
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. This is
clearly insufficient.
[22]
This factor must operate against the applicants.
D.
Interests of justice
[23]
As indicated above, the overriding consideration
in a motion to extend a deadline is whether the interests of justice are
served. As stated by the FCA in Larkman at para 86, “the Federal Court and this Court have underscored the
importance of the thirty day deadline in subsection 18.1(2) of the Federal
Courts Act” and “[m]any authorities suggest
that unexplained periods of delay, even short ones, can justify the refusal of
an extension of time”. The FCA continued at para 87 of Larkman:
The need for finality and certainty
underlies the thirty day deadline. When the thirty day deadline expires and no
judicial review has been launched against a decision or order, parties ought to
be able to proceed on the basis that the decision or order will stand. Finality
and certainty must form part of our assessment of the interests of justice.
[24]
The respondent acknowledges that the delay in
commencing legal proceedings in this matter does not cause it prejudice. This
favours granting the applicants’ motion, as does the applicants’ apparent
continuing intention to pursue legal proceedings.
[25]
On the other hand, the failure of the applicants
to establish either a reasonable explanation for the delay in commencing legal
proceedings or some potential merit therein favours dismissing the motion.
[26]
Even though the delay was short, I am concerned
about the applicants’ weak commitment to their case as demonstrated by the
unreasonable delay and the absence of detail on their position on the merits. I
conclude that the applicants have failed to establish that the interests of
justice will be served by granting the requested deadline extension.
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