Docket: 23-A-9
Citation: 2023 FCA 192
PRESENT: LOCKE J.A.
BETWEEN: |
STEPHANE BENARD |
Appellant |
and |
PAUL LARAMÉE and ROSE PRATTE |
Respondents |
REASONS FOR ORDER
LOCKE J.A.
[1] This decision involves a motion brought by Stéphane Bénard seeking an extension of time to appeal a decision of the Federal Court rendered on December 1, 2022 (2022 FC 1653). Under paragraph 27(2)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7, he had to file his notice of appeal within 30 days, i.e., by December 31, 2022.
[2] For the reasons that follow, I would dismiss the motion.
[3] One of the problems with this motion is that Mr. Bénard initially limited himself to a notice of motion to support it. He did not provide any evidence (in the form of an affidavit) or written representations. His notice of motion indicates that he attempted to file his notice of appeal on December 21, 2022 (within the prescribed time limit) and that he learned only on January 12, 2023 (after the deadline had passed) that the notice of appeal had not been accepted because he had failed to pay the $50 filing fee. Mr. Bénard argued that the situation was [translation] “beyond his control, which explains his tardiness”
. However, Mr. Bénard did not discuss the factors for obtaining an extension of time and did not explain how his situation satisfied these factors. Therefore, the proposed respondents (Paul Laramée and Rose Pratte) had few arguments from Mr. Bénard when they prepared their written representations contesting the motion.
[4] Another problem with this motion is that the proposed respondents’ written representations do not address the notice of appeal that Mr. Bénard attempted to file on December 21, 2022, and focus on an earlier version that Mr. Bénard attempted to file on December 9, 2022. That earlier version is much less detailed. The proposed respondents’ arguments are primarily that the notice of appeal is vague and does not include any of the details needed to find that the appeal has potential merit. Therefore, much of the respondents’ proposed arguments do not apply to the notice of appeal at issue.
[5] That said, the proposed respondents clearly described the factors for obtaining an extension of time. They cited this Court’s decision in Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145 at paras. 29 - 30:
[29] The following factors bear upon the question [of] whether this Court should grant the extension of time:
(1) a continuing intention to pursue the appeal;
(2) potential merit to the appeal;
(3) the absence of prejudice to any party to the appeal; and
(4) a reasonable explanation for the delay.
See Grewal v. Canada (Minister of Employment & Immigration), [1985] 2 F.C. 263 (C.A.); Canada (Attorney General) v. Larkman, 2012 FCA 204 at paragraph 62. The importance of each factor depends upon the particular circumstances of the case.
[30] Further, not all of these four factors have to be resolved in the appellant’s favour. For example, “a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay: Grewal, supra at page 282. In certain cases, particularly in unusual cases, other questions may be relevant. The overriding consideration is that the interests of justice be served. See generally Grewal, at pages 278-279.
[6] The proposed respondents acknowledge that Mr. Bénard had a continuing intention to pursue the appeal. Also, they do not dispute that the absence of prejudice factor is satisfied. However, the proposed respondents are challenging the factors of potential merit and reasonable explanation for the delay.
[7] A third problem with this motion involves the documents that Mr. Bénard submitted to the Court in reply to the written representations of the proposed respondents. In particular, Mr. Bénard included an affidavit containing more than 200 paragraphs. This affidavit should have been included in the motion record that Mr. Bénard initially filed. This would have allowed the proposed respondents to cross-examine him on the statements in the affidavit and/or respond to them. Subrule 369.2(3) of the Federal Courts Rules, SOR/98‑106, which provides for written representations in reply, does not allow fresh evidence to be included at this stage. When the Court Registry brought this issue to Mr. Bénard’s attention, he requested that his reply documents be sent to the Court for a direction.
[8] In my opinion, it would be unfair to allow Mr. Bénard to rely on fresh evidence filed in reply. However, the affidavit may be treated as a set of unsworn representations and statements. On this basis, Mr. Bénard’s written representations in reply, including his affidavit, should be filed.
[9] I also note that the documents filed by Mr. Bénard in reply to the written representations of the proposed respondents appear to involve several other motions. I note that this decision deals only with the motion initially brought by Mr. Bénard, i.e., the one seeking an extension of time to file the notice of appeal. In addition, Mr. Bénard’s written representations far exceed the purpose of a reply. They were to be limited to responding to the arguments of the proposed respondents and were not to introduce new arguments.
[10] I now begin my analysis of the issues relevant to this motion, which are:
- Is there potential merit to the proposed appeal?
- Is there a reasonable explanation for the delay in filing the notice of appeal?
- Would the interests of justice be served by granting an extension of time to file the notice of appeal?
[11] Although I am focusing on the more detailed version of the notice of appeal that Mr. Bénard attempted to file on December 21, 2022, I am of the view that it does not raise any issues that have “potential merit”
. The notice of appeal raises several issues related to procedural fairness before the Federal Court, as well as the competence of Mr. Bénard’s former counsel and the challenges Mr. Bénard faces as a self‑represented party. However, I do not see any issues with sufficient merit that could justify this Court setting aside the decision of the Federal Court.
[12] Furthermore, I am not convinced that there is a reasonable explanation for the delay in filing the notice of appeal. I accept that Mr. Bénard made efforts to file the notice of appeal within the prescribed time limit. He had several discussions with the Court Registry demonstrating this. However, I do not accept Mr. Bénard’s allegation that he [translation] “telephoned several times between December 21 the filing of the notice of appeal [
sic] and January 2023 without having received a return call with information or instructions on how he could pay”
the filing fee. I do not see any evidence in this regard. In fact, this allegation seems to be contradicted by the email exchanges between Mr. Bénard and the Registry between December 9, 2022, and January 12, 2023 (which are reproduced in Exhibit P-3 at 104 - 113 of the [translation] “written representations in reply to the respondents’ motion record”
). These exchanges indicate that the Registry had informed Mr. Bénard on December 21 that he still had to pay the filing fee. Later that same day, Mr. Bénard confirmed that he had received this notification. On December 22, 2022, Mr. Bénard indicated that he was unable to pay the filing fee because he had forgotten his credit card at home, but that he would make the payment the next day. There is no indication in the evidence that he did not know how to make the payment. There was no further communication between Mr. Bénard and the Registry before January 12, 2023. I find that the documents provided by Mr. Bénard do not contain a reasonable explanation for the delay in paying the filing fee.
[13] I now turn to the interests of justice. Mr. Bénard satisfies the factors of a continuing intention to pursue the appeal and the absence of prejudice. However, the proposed appeal has no merit, and Mr. Bénard has not provided a reasonable explanation for the delay. By far the most important factor is that the proposed appeal has no merit. To allow an appeal devoid of any merit to proceed before this Court would be an unnecessary waste of its limited resources and would not serve the interests of justice.
[14] I would dismiss the motion for an extension of time to file the notice of appeal.
“George R. Locke”
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