Date: 20060214
Docket: T-2014-04
Citation: 2006
FC 199
Halifax, Nova
Scotia, February 14, 2006
PRESENT: The Honourable W. Andrew Mackay
BETWEEN:
T.C.
RESTAURANTS LTD.
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The two
motions dealt with in these reasons and Order were heard together. Both actions
are appeals from different decisions by Madam Prothonotary Tabib whereby
1)
she
denied, by Order dated July 6, 2005, the applicant’s motions to extend time to
serve and file its application record in a judicial review proceeding and to
permit cross examination on affidavits, and for leave to file an additional
affidavit in support of the applicant; and
2)
she
denied, by Order dated August 19, 2005, the applicant’s request to allow its
application for judicial review to proceed after service of notice of status
review was issued, and she ordered that the application for judicial review be
dismissed for delay.
The Background
[2]
On October
14, 2004 a Director General of Parks Canada refused an application by the
applicant for a variance from applicable regulations concerning parking
requirements for building developments in Jasper, Alberta where the applicant
corporation operated a business. On November 19, 2004 the applicant filed a
notice of motion for judicial review of that decision, but subsequently the
applicant failed to file its application record in timely fashion as required
by the Court’s Rules (i.e. Rules 306, 308, 309).
[3]
A
supplementary affidavit on behalf of the applicant, to the effect that the
principal of the applicant corporation had been out of the country and had only
recently returned, was tendered to the Court, on April 12, 2005, but filing was
refused since it was out of time and leave for late filing had not been sought
or granted. On May 20, 2005 the applicant sought to file its motion record and
an application for an extension of time, a motion approved for filing, as of
May 20, 2005, by a judge of the Court on May 25, 2005.
[4]
Meanwhile,
on May 20, 2005, the Court had issued a notice of status review in relation to
the original notice of application for judicial review, the record for which
had not been filed in accord with the Rules. The applicant responded to the
notice of status review requesting that the matter proceed, as it professed it
had always intended.
[5]
On July 6,
2005, Prothonotary Tabib, considering the May 20, 2005 application to extend
time to serve and file the application record, dismissed that application and
denied leave to file the supplementary affidavit.
[6]
On August
19, 2005, Prothonotary Tabib refused the applicant’s request in relation to
status review and dismissed the application for judicial review because of
delay in moving the proceedings forward.
[7]
Those two
decisions are subjects of separate appeals dealt with in this statement of
Reasons for Order and Order.
The Law
[8]
The
standard of review of discretionary orders of a Prothonotary is that the Court
will intervene only when it concludes that the decision is clearly wrong in the
sense that it is based on a wrong principle or upon a misapprehension of the
facts, or the decision errs in dealing with a question vital to the final issue
of the case. (Canada v. Aqua Gem Investments Ltd., [1993] 2 F.C. 425, [1993]
F.C.J. No. 103 (C.A.)(QL)).
[9]
In this
case, with respect to both decisions of the Prothonotary the applicant urges
that each deals with a question vital to the final issue of the case in that
both decisions effectively preclude the application for judicial review from
proceeding. In that event the Court is urged to consider the issued raised on a
de novo basis.
[10]
The test
for assessing an application for an extension of time to file a judicial review
application is whether the applicant demonstrates
1.
a
continuing intention to pursue the application;
2.
that the
application has some merit;
3.
that no
prejudice to the respondent arises from delay; and
4.
that a
reasonable explanation exists for the delay
(see Canada (Attorney General) v.
Hennelly,
[1999] F.C.J. No. 846 (C.A.)(QL)).
[11]
In
relation to the decision concerning status review, the applicant is required to
address two issues:
1.
whether
there is justification for failure to move the case forward; and
2.
what
measures it is proposed to take to advance the case.
(see Netupsky v. Canada,
2004 FCA 239, [2004] F.C.J. No. 1073 (C.A.)(QL)).
Analysis
[12]
Accepting
that the decisions of the Prothonotary here in question can be said to deal
with issues vital to final disposition of the case and that this Court
considers de novo the matters raised before the Prothonotary, in doing
so I reach the same decisions as she did.
[13]
In regard
to the first decision, refusing an extension of time to file the application
record and to cross examine on an affidavit, and leave to file an additional
affidavit, the applicant urges that even if the principals of the corporation
were out of the country and the application record was delayed they did intend
from the beginning to pursue the matter, that the application has merit
particularly in that their application for a variance in parking requirements
had been recommended by a local committee, and that no prejudice would be
caused to the respondent’s interests. The test requires that there be a
reasonable explanation for the delay, here of more that 60 days after the
requirement for filing the application record under the Rules. The fact that
the principals of the applicant corporation were out of the country for a time,
or that information was sought by a request for access to information, do not,
in the circumstances of this case constitute a reasonable explanation for the
delay.
[14]
Since I
reach the same result as the Prothonotary did with respect to the motion for an
extension of time, the appeal from her decision dated July 6, 2005 will be
dismissed.
[15]
In regard
to the second decision of Prothonotary Tabib, rejecting the applicant’s request
for an extension of time and that it be permitted to proceed with its
application for judicial review, the applicant acknowledges the delay and
failure to observe the Court’s Rules with respect to timely filing.
Nevertheless, it is urged that the applicant had consistently intended to
proceed with the matter and that “any blunders, or defects of form or
inadvertence” should not be permitted to impede the disposition of the case.
[16]
In my
opinion, no reasonable explanation or justification for failure to move the
case forward is here offered by the applicant. Thus, I reach the same result as
the Prothonotary did with respect to the request on status review, i.e. to deny
the request and to dismiss the application for judicial review. The application
for an extension of time, and to appeal from the decision of August 19, 2005 is
thus dismissed.
ORDER
THIS COURT ORDERS that
The applications by the applicant corporation
(1)
to appeal
the decision of the Prothonotary dated July 6, 2005, and
(2)
for an
extension of time and to appeal the decision of the Prothonotary dated August
19, 2005,
are both dismissed.
“W.
Andrew MacKay”
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