John
A.
Hargrave
P.:
-
These
reasons
arise
out
of
an
application
heard
April
15,
1996,
during
which
I
allowed
the
Plaintiff’s
application
that
a
court
reporter
transcribe
the
hearing
of
the
balance
of
this
motion
(and
of
a
motion
in
another
of
the
Plaintiffs
actions),
but
denied
the
balance
of
the
relief
requested.
I
indicated
in
the
Order
that
reasons
would
follow
in
due
course.
The
Plaintiff’s
original
motion,
dated
February
16,
1996,
set
for
April
1,
1996,
came
on
for
hearing
that
day.
In
that
the
Plaintiff,
acting
for
himself,
had
filed
inadequate
affidavit
material
and
seemed
not
to
understand
what
was
required
of
him,
particularly
as
to
the
portion
of
his
motion
dealing
with
a
request
for
an
extension
of
time
within
which
to
appeal
my
Order
of
January
26,
1996,
I
explained
to
Mr.
Nelson
that
I
was
adjourning
the
motion
for
two
weeks
so
that
he
might
file
further
material
including
material
to
explain
the
need
for
a
court
reporter
and,
so
far
as
the
extension
of
time
within
which
to
appeal
the
Order
was
concerned,
so
that
he
might
satisfy
me
as
to
various
points.
I
explained
those
points
to
him
which,
from
my
notes,
were
as
follows:
1.
Must
convince
me
of
the
merits
of
your
case:
that
it
is
a
fairly
arguable
substantive
case
or
that
an
injustice
would
occur
if
an
extension
of
time
for
appeal
is
not
granted;
2.
Must
explain
to
me
why
the
appeal
was
not
filed
within
the
two-week
limit
which
ran
out
February
9,
1996.
Must
account
for
all
of
the
delay
and
explain
what
circumstances
prevented
you
from
appealing
in
a
timely
manner.
You
must
show
good
reason.
3.
Must
convince
me
that
at
all
times
you
had
a
bona
fide
intention
to
appeal;
4.
Must
deal
with
the
amount
of
time
that
has
gone
by
between
the
end
of
the
appeal
period
and
the
filing
of
this
motion;
and
5.
Must
deal
with
any
prejudice
to
the
Defendant.
Motion
for
a
Court
Reporter
This
motion
came
on
for
hearing
in
two
parts
on
April
15,
1996.
During
the
first
portion
Mr.
Nelson,
on
very
scanty
affidavit
material,
sought
to
have
the
proceedings
in
two
motions
which
were
set
to
follow,
one
in
this
action
and
one
in
an
intended
action,
96-T-5,
transcribed
by
a
court
reporter.
I
would
not
usually
require
a
court
reporter
for
two
such
fairly
straightforward
motions.
Nor
could
I
justify
that
the
expense
of
a
court
reporter
be
paid
by
the
Court
and
ultimately
by
the
taxpayer.
During
the
course
of
the
hearing
I
pointed
out
to
Mr.
Nelson
that
a
court
reporter
was
not
an
essential
on
a
motion.
I
referred
to
the
decision
of
the
Saskatchewan
Court
of
Appeal
in
Oke
v.
Speller,
[1921]
1
W.W.R.
1117,
[1922]
59
D.L.R.
678
at
page
1119
(W.W.R.),
to
the
effect
that
if
reporters
are
not
supplied,
then
the
work
must
be
done
without
them,
as
has
been
done
for
many
years
by
judges.
Counsel
for
the
Crown
made
submissions
that
I
would
have
accepted
to
deny
the
motion
for
a
reporter.
However,
in
his
affidavit
material,
Mr.
Nelson
set
out
that
he
believed
that
the
Court
was
prejudiced
against
him.
On
that
basis
I
adjourned
briefly
to
allow
the
court
reporter,
who
had
previously
been
asked
by
the
Court
Registry
to
attend
on
stand-by,
to
organize
her
equipment
in
order
to
transcribe
the
balance
of
the
proceedings
in
this
motion
and
all
of
the
motion
in
proceeding
96-T-5.1
said
to
Mr.
Nelson
that
the
only
reason
we
had
a
court
reporter
is
that
he
had
sought
it
for
his
two
motions.
I
confirmed
that
it
was
on
the
terms
that
Mr.
Nelson
pay
for
the
stand-by
costs
of
the
reporter,
for
otherwise
we
would
not
have
had
a
reporter,
and
that
either
of
the
parties
would
be
free
to
order
transcripts
at
the
usual
rate.
Balance
of
Relief
Sought
The
second
portion
of
the
motion
did
not
carry
on
from
the
adjourned
April
1,
1996,
motion,
but
began
anew.
I
did
not
require
that
counsel
for
the
Defendant
speak
to
the
first
three
items
of
the
Defendant’s
motion,
which
by
the
time
of
this
hearing
had
become
an
amended
motion
filed
April
9,
1996.
I
rejected
the
first
item
of
the
motion,
a
request
for
an
order
for
the
examination
for
discovery
of
a
Mr.
Goodwin
at
2
p.m.
on
May
8,
1996,
on
the
basis
that
Mr.
Nelson
said
that
he
was
not
corresponding
with
counsel
for
the
Defendant
and
had
not
even
gone
so
far
as
to
take
out
an
appointment
for
that
discovery.
The
Federal
Court
Rules
provide
a
means
for
setting
examinations
for
discovery.
The
party
may
not
bypass
those
rules
in
the
normal
course
of
events.
I
rejected
the
request
for
an
order
that
the
Defendant
produce
1984
through
1996
documents
which
the
Plaintiff
had
requested
under
Access
for
Information
proceedings,
for
the
Crown
has
already
produced
and
filed
a
fairly
substantial
affidavit
of
documents.
Mr.
Nelson
said
that
he
had
glanced
at
it,
but
did
not
know
its
contents.
Again,
a
party
may
not
have
a
blanket
order
as
to
documents
without
first
exploring
the
documents
that
have
been
produced
and
pointing
to
gaps
in
the
affidavit
of
documents.
I
rejected
the
request
for
an
order
as
to
a
settlement
conference,
for
it
not
only
seemed
premature,
but
also,
Mr.
Nelson
had
not
made
such
a
request
in
the
usual
course
of
events,
to
the
Court
Registry.
This
was
a
point
that
I
had
made
during
the
April
1
hearing
of
the
motion
which
was
subsequently
adjourned.
To
the
date
of
the
hearing
on
April
15,
Mr.
Nelson
had
made
no
request
for
a
settlement
conference
to
the
Registry.
Turning
now
to
the
application
for
the
extension
of
time
within
which
to
appeal
my
Order
of
January
26,
1996,
Mr.
Nelson,
had
he
intended
to
appeal,
should
have
done
so
by
February
9,
1996.
Instead,
he
allowed
the
two-week
time
period,
within
which
he
was
entitled
to
appeal,
to
run
out.
As
I
noted
earlier,
he
filed
a
motion
seeking
various
relief,
including
an
extension
of
time
within
which
to
appeal,
on
February
16,
1996,
and,
after
I
had
pointed
out
to
him,
on
April
1,
deficiencies
in
his
material,
he
filed
an
amended
Notice
of
Motion
April
9,
1996.
As
I
say,
on
April
1,
1996,1
explained
to
Mr.
Nelson
five
points
which
he
should
consider
when
he
filed
supplemental
material:
those
are
the
five
points
set
out
earlier
in
these
reasons.
Mr.
Nelson’s
affidavit
of
April
9,
1996,
he
says
he
claims
an
“Extension
of
time
to
appeal
Jan.
26/96
John
A.
Hargrave
order”
and
says
that
he
believes
that
the
Court
is
prejudiced
against
him
in
that
he
was
not
allowed
to
bring
in
a
court
reporter
when
this
motion
first
came
on
for
hearing
on
April
1,
1996.
Mr.
Nelson
suffered
no
prejudice
during
the
proceedings
on
April
1,
1996,
for
those
proceedings
were
adjourned
and
the
motions
heard
in
their
entirety
on
April
15,
1996.
I
will
deal
later
with
the
topic
of
bias.
There
is
nothing
in
Mr.
Nelson’s
affidavit
dealing
with
the
merits
of
the
case,
or
to
account
for
the
delay,
or
to
show
that
Mr.
Nelson
had
a
bona
fide
intention
to
appeal.
That
the
delay
was
fairly
minimal
and
that
Mr.
Nelson
is,
in
his
view,
doing
the
best
that
he
can,
is
not
an
answer.
Mr.
Nelson
seemed
to
feel
that
justice
required
an
extension
of
time,
but
gave
no
grounds
for
that
assertion.
Mr.
Justice
Teitelbaum
dealt
with
an
appeal
that
had
been
filed
three
or
four
days
beyond
time
in
LeBel
v.
R.
(sub
nom.
LeBel
v.
The
Queen),
[1987]
2
C.T.C.
86,
(sub
nom.
LeBel
v.
R.
(No.
2))
87
D.T.C.
5327
(F.C.T.D.)
at
page
88.
He
said
that
a
litigant
ought
not
to
lose
an
appeal
right
on
a
technicality,
but
that
a
failure
to
file
within
time
is
not
a
technicality:
[17]
I
am
in
full
agreement
with
counsel
for
plaintiff
when
he
states
that
a
litigant
should
not
lose
his
right
to
appeal
on
a
technicality
as
this
does
not
further
the
ends
of
justice.
[18]
I
am
also
of
the
belief
that
the
failure
to
file
a
notice
of
appeal
within
the
delays
is
not
a
question
of
“technicality”
but
is
a
matter
of
procedural
law
and
thus,
special
circumstances
must
be
shown
to
exist
in
order
to
obtain
an
extension
of
time
to
file
a
notice
of
appeal.
Mr.
Justice
Teitelbaum
went
on
to
say
that
even
though
the
defendant
suffered
no
prejudice
by
reason
of
a
delay
of
three
or
four
days,
that
was
not
a
reason
to
grant
an
extension.
He
pointed
out
that,
there
is
no
doubt
that
one
of
the
prime
considerations
in
the
Court
using
its
discretion
is
the
issue
that
“justice
be
done”
but
the
“justice”
must
be
for
all
of
the
parties
to
the
proceedings.
In
this
instance
Mr.
Nelson
has
given
me
no
grounds
on
which
I
might
exercise
discretion
in
his
favour.
To
allow
a
time
extension,
on
virtually
no
material,
would
be
an
injustice
to
the
Defendant.
Thus
the
request
for
a
time
extension
was
denied.
I
denied
Mr.
Nelson
an
order
that
some
other
prothonotary
hear
his
motions,
as
it
is
for
the
Associate
Chief
Justice
to
assign
matters
to
the
prothonotaries
and
to
the
judges
and
not
for
a
litigant
to
require
that
a
matter
be
heard
by
someone
else,
in
the
absence
of
a
particular
reason.
In
this
instance,
the
very
thin
affidavit
material
alleged
this
Court’s
prejudice
against
the
Plaintiff
as
a
result
of
the
denial
of
a
court
reporter
for
that
portion
of
the
April
1,
1996,
motion
which
took
place
before
the
motion
was
adjourned.
I
take
Mr.
Nelson’s
allegation
that
the
Court
is
prejudiced
against
him
to
be
an
allegation
of
bias
on
the
part
of
the
Court.
Bias
is
“an
inclination
to
decide
an
issue
influenced
by
any
consideration
other
than
its
merits”:
The
Oxford
Companion
to
Law,
D.M.
Walker,
Clarendon
Press,
1980
and
see
also
R.
v.
Justices
of
East
Kerrier,
[1952]
2
Q.B:
719,
(sub
nom.
R.
v.
East
Kerrier
Justices)
[1952]
2
All
E.R.
144
(C.A.)
and
Franklin
v.
Minister
of
Town
and
Country
Planning,
[1948]
A.C.
87,
[1947]
2
All
E.R.
289
(H.L.).
Where
bias
is
alleged
it
is
not
generally
necessary
to
establish
the
presence
of
actual
bias.
However,
the
mere
fact
that
a
party
has
lost
a
motion
or
has
had
a
motion
adjourned
by
the
Court
is
not
an
indication
that
the
Court
is
either
being
less
than
even-handed
or
is
showing
that
it
is
not
indifferent
as
between
the
parties.
Mr.
Nelson
succeeded
on
one
point
only,
that
of
the
court
reporter.
In
view
of
his
lack
of
success
in
other
portions
of
his
motion,
some
of
which
were
completely
unnecessary
requests,
together
with
the
fact
that
some
of
his
presentation
and
material
were
unnecessarily
abusive
toward
counsel
for
the
Defendant,
I
awarded
costs
against
Mr.
Nelson
in
any
event.
In
awarding
costs
at
the
conclusion
of
the
hearing
I
initially
erred
in
the
direction
of
the
award,
which
I
then
corrected,
as
the
transcript
will
show.
In
the
normal
course
of
events
I
would
have
awarded
costs
at
least
under
Column
III
of
Tariff
“B”
to
the
Federal
Court
Rules,
however,
I
felt
that
Mr.
Nelson’s
finances
should
be
taken
into
consideration
and
thus
the
award
of
costs
is
under
Column
II.
Motion
allowed
in
part.
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