Date: 20060201
Docket: T-623-05
Citation: 2006 FC 110
Montréal, Quebec, February 1, 2006
PRESENT:
MR. RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
SERGE
SMITH
Applicant
and
NATIONAL
DEFENCE
Respondent
Motion by the applicant for an
extension of time to serve and file the applicant’s record.
REASONS FOR ORDER AND ORDER
RICHARD
MORNEAU, PROTHONOTARY
[1]
On April
7, 2005, the applicant filed a notice of application for judicial review under
subsection 18.1(2) of the Federal Courts Act seeking to set aside the decision
ending his Class B reserve service and issuing a written warning against him.
[2]
Right from
the first crucial steps in preparing his case, the applicant had difficulties
with the application of the relevant rules. In fact, on December 7, 2005, the applicant
had obtained a second extension of time to file his affidavit under section 306
of the Federal Courts Rules (the Rules).
[3]
In
granting this second extension on December 7, 2005, the Court also ruled on the
notice of status review issued to the applicant in this case, considering the
delays incurred in preparing his application for judicial review for hearing.
[4]
On
December 7, 2005, in spite of the notice of status review, the Court once again
showed considerable latitude toward the applicant and allowed the application
for judicial review brought by the applicant to continue.
[5]
However,
in rendering its order, the Court had this to say:
[translation]
As
far as the status review is concerned, the Court acknowledges the soundness of
the respondent’s position, to the effect that the applicant, notwithstanding
the events surrounding the filing of his affidavit, has failed to serve and
file his applicant’s record in accordance with section 309 of the Rules
and that his submissions in answer to the notice of status review do not give
any explanation for the delay in completing this essential step, other than
demonstrating that counsel for the applicant seems to fundamentally
misunderstand the Rules of procedure of this Court and to have no idea what
steps he must complete to properly conduct this case. Such ignorance is not
recognized in law as an excuse for delays. Moreover, it seems that it is
because of this same ignorance that the applicant was unable to suggest a
reasonable plan or timetable for advancing his case. In the circumstances, the
Court would be warranted in dismissing the application for judicial review
because of the delays incurred. However, . . . .
[6]
After
having allowed the proceeding to continue, the Court added the following
comments:
[translation]
The
leave granted by the Court to allow this proceeding to continue is not an
acceptance of any justification whatsoever of the delay, nor does it sanction
this delay. Quite the contrary, this Court will allow the proceeding to
continue only on condition that the applicant present a motion for an extension
of time to serve and file the applicant’s record, at which time he must meet
the tests specified by case law to obtain this extension, that is to say, he
must demonstrate that he has a continuing intention to pursue the application, that the
application has merit, that no prejudice arises as a result of the delay and
that a reasonable explanation for the entire delay exists. If the
motion for an extension of time is dismissed, the application for judicial
review will also fail and be automatically dismissed.
[7]
However,
in spite of this serious warning in this Court's order rendered on
December 7, 2005, the motion record filed on January 9, 2006 by the
applicant to obtain an extension of time to file the applicant’s record is more
than deficient.
[8]
In fact,
even if we exclude from our analysis the fact that this record does not have a
section containing written submissions and that the motion filed only contains
an affidavit from counsel, it is impossible to do otherwise than to agree with
the respondent’s following arguments at paragraphs 17 to 22 of the written
submissions filed to counter the applicant’s motion for an extension of time:
[translation]
17. The applicant did not make any submission in
his motion about the first three criteria stated by case law and mentioned by
Prothonotary Tabib in this order [dated December 7, 2005];
18. He gave no reasonable explanation to try to
justify the delays incurred since the notice of application was filed on April
7, 2005;
19. In fact, the applicant considered it
sufficient to give the following three explanations to try to justify the delay
incurred:
- The applicant thought that the extension order granted had extended the
time limit by 180 days;
- The applicant did not know that certain documents had not been returned
in compliance with the order issued in July 2005;
- Finally, the applicant had learned that judicial review was done on the
basis of the record.
20. This Court’s case law is to the effect that
only grounds beyond the control of counsel or the applicant may constitute a
reasonable explanation warranting an extension of time:
When an application for an extension of time comes before me, I look for
some reason for the delay which is beyond the control of counsel or the
applicant, for example, illness or some other unexpected or unanticipated
event. (Armonikos Corp. Ltd. v. Saskatchewan Wheat Pool (2002), 220 F.T.R. 115).
21. In addition, the applicant has accumulated
delays since April 7, 2005 without any consequences and already had to make two
other motions for extension time in this case;
22. It seems from the preceding that the
applicant does not have much interest in ensuring this proceeding is properly
conducted and in respecting the rules governing it.
[9]
Accordingly,
the applicant’s motion for an extension of time to serve and file the
applicant’s record is dismissed. In addition, in accordance with the order
rendered by this Court on December 7, 2005, considering the dismissal of the
applicant’s motion, his application for judicial review is also dismissed, with
costs in the amount of $75 for the respondent.
“Richard Morneau”
Certified true translation
Michael Palles
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