Date:
20060602
Docket:
06-T-32
Citation:
2006 FC 681
Ottawa, Ontario, June 2, 2006
Present: Mr. Justice Blais
BETWEEN:
STÉPHANE
NÉRON
Applicant
and
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
FOR
THE MINISTER OF DEFENCE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion for an extension
of time in which to file an application for judicial review of a decision,
dated June 25, 2003, by the Chief of Defence Staff General R.R. Henault,
denying the relief sought by the applicant in relation to two grievances.
RELEVANT FACTS
[2] In fact, the litigation between the
applicant and the Department of National Defence has been ongoing for a number
of years. The applicant studied on a grant at the Royal Military College of
Canada and was granted a voluntary release from the Canadian Forces. As the
applicant was released from the Canadian Forces upon his request, without
carrying out his mandatory service, the armed forces claimed more than $40,000
from him in 1999.
[3] After a number of exchanges between
the parties, it appears that General Henault sent the applicant, on June 25,
2003, an unfavourable reply to the request for relief made by the applicant
relating to the claimed $40,994.68.
[4] In his decision, the Chief of
Defence Staff conducted a full review of the case, explained the reasons for
his refusal to grant relief to the applicant and informed him, at the very end
of his letter, that he was denying the requested relief and ordering that the
money accumulated in the applicant’s pension fund be applied against his debt
and that the matter be sent to the Claims and Civil Litigation Section for
collection purposes.
[5] It appears that the applicant
continued his correspondence with the Canadian Forces authorities but did not
seek judicial review of the decision contained in General Henault’s letter.
[6] It was not until April 2005 that an
action was filed against the applicant, claiming from him the sum of $39,515
because he had not performed his mandatory service, contrary to what he had
undertaken to do under the Regular Officer Training Plan.
[7] There followed a number of
proceedings and interlocutory decisions, which culminated in a decision by Mr.
Justice Paul Rouleau, dated January 6, 2006. In this decision, Rouleau J.
explained that the internal remedies exercised by the applicant [translation] “should have given rise to a judicial review proceeding
and not to an action for damages, which is the basis of the counterclaim that
was dismissed by the prothonotary” (Her Majesty the Queen in Right of
Canada v. Stéphane Néron, docket no. T-617-05, order dated January 6, 2006,
at p.3, paragraph 3).
[8] The applicant therefore decided to
file an application for judicial review of General Henault’s decision.
[9] Since the applicant applied to the
Court outside the thirty (30) day period, he has had to file a request for an
extension of time in order to obtain leave to file his application for judicial
review, which is the subject of this motion.
ISSUE
[10] Does the applicant meet the criteria
for an extension of the period provided for by section 18.1 of the Federal
Courts Act for filing an application for judicial review?
ANALYSIS
[11] Both parties seem to agree that
General Henault’s letter, dated June 25, 2003, constitutes a decision by the
Department of National Defence on Mr. Néron’s request to be relieved of the
duty to pay the sums owing to the Department of National Defence.
[12] The applicant candidly argues that
he did not file an application for judicial review of that decision, sent by
letter dated June 25, 2003, because he was unaware that he had that possibility
and he says he only learned of this means of having that decision overturned
when he received the decision of Rouleau J. dated January 6, 2006, when the
Federal Court dismissed his counterclaim in docket T-617-05.
[13] It is also surprising to find that
the applicant, having learned on January 6, 2006 that it was possible to apply
for judicial review of the decision of June 25, 2003, more than three years
earlier, nevertheless waited almost four months before filing an application
for leave to have an extension of time in which to file his application.
[14] The applicant clearly explained to
the Court that, following the decision of General Henault in June 2003, he had
nevertheless repeated his desire that the Department of National Defence simply
wipe out his debt and that at that point he was prepared to set aside his own
claims.
[15] When the Department of National
Defence, as provided in General Henault’s letter, decided to follow through on
its intention to claim the sums owing to the Department, the applicant chose
not to apply for judicial review of this decision of General Henault, but
instead to file a counterclaim connected with the Department’s requisition for
payment.
[16] It was not until January 2006, when
he learned through the decision of Rouleau J., that his counterclaim was
dismissed and that he should have filed an application for judicial review of
General Henault’s decision, that he decided to pursue his remedy and in fact he
took almost four months to ultimately file this motion for an extension of
time.
[17] The respondent in this motion has
aptly defined the issue this Court must address.
[18] To obtain an extension of time, the
applicant must meet a number of factors and tests that have been laid down in
the case law over the years. The courts have clearly established the four
factors that must be reviewed in establishing that an extension of time is
justified. The applicant must have had an ongoing intention to pursue his
claim, the action or application must disclose an arguable case, the respondent
must not be prejudiced as a result of the delay and there must be a reasonable
explanation for the delay. See, in this regard, Grewal v. Canada (Minister
of Employment and Immigration), [1985] 2 F.C. 263; Baska v. Neis,
[2002] F.C.J. No. 832. Chief Justice Thurlow explains in Grewal, at page
277:
There remains, however, the questions
whether there is any satisfactory reason, any proper justification, for not
bringing the application within the 10-day period and whether justice requires
that the extension be granted.
Among the matters to be taken into account
in resolving the first of these questions is whether the applicant intended
within the 10-day period to bring the application and had that intention
continuously thereafter. Any abandonment of that intention, any laxity or
failure of the applicant to pursue it as diligently as could reasonably be
expected of him could but militate strongly against his case for an extension.
The length of the period for which an extension is required and whether any and
what prejudice to an opposing party will result from an extension being granted
are also relevant.
[19] An analysis of the case law also
reveals that a party who wishes to obtain an extension of time must be able to
justify the delay as a whole. From the evidence on file, it appears that the
applicant consistently maintained his categorical refusal to pay the sums being
claimed from him. The way in which he proceeded varied, depending on the
attitude of the Department of National Defence. He clearly told the court that
he would have readily abandoned his proceeding or his claims for damages if the
Department had itself decided not to claim from him the $40,000 outstanding.
However, since the Department of National Defence commenced a proceeding, he
decided to file a counterclaim based essentially on a challenge to the facts
attested to in General Henault’s letter of June 25, 2003.
[20] More recently, in Grenier v.
Canada, 2005 FCA 348, [2005] F.C.J. No. 1778, dated October 25, 2005, the
Court of Appeal has restated the importance of the principle of finality of
decisions and the legal stability that this entails. See, to this effect,
paragraphs 27-30:
To allow a proceeding under section 17,
whether in the Federal Court or in the provincial courts, in order to have
decisions of federal agencies declared invalid, is also to allow an
infringement of the principle of finality of decisions and the legal security
that this entails.
I need not expound at length on the
importance of the principles of res judicata and the finality of
decisions. Similarly, I need not say much about the abundant case law that
recognizes and promotes these principles. I will confine myself to saying that
these principles exist in the public interest and that Parliament’s intention
to protect that interest is illustrated by the short time limit allowed for
challenging an administrative decision.
Parliament has provided, in subsection
18.1(2), that the time for filing an application for judicial review is 30 days
from the time the impugned decision of the federal agency was communicated to
the applicant (subject to any extension of the periods allowed by the Court).
Concerning this time limit, this Court writes in Berhad, supra,
at paragraph 60:
In my view, the
most important reason why a shipowner who is aggrieved by the result of a ship
safety inspection ought to exhaust the statutory remedies before asserting a
tort claim is the public interest in the finality of inspection decisions. The
importance of that public interest is reflected in the relatively short time
limits for the commencement of challenges to administrative decisions - within
30 days from the date on which the decision is communicated, or such further
time as the Court may allow on a motion for an extension of time. That time
limit is not whimsical. It exists in the public interest, in order to bring
finality to administrative decisions so as to ensure their effective
implementation without delay and to provide security to those who comply with
the decision or enforce compliance with it, often at considerable expense. In
this case, the decision of the Chairman was not challenged until, a year and a
half after it was made, the respondents filed their claim for damages.
In the present case, I note that the claim
for damages was brought about three years to the day after the impugned
decision was rendered. Apart from the fact that the respondent, without
explanation or justification, overlooks the time limit provided in subsection
18.1(3), the proceeding he used creates inappropriate and detrimental legal
uncertainty as to the finality of the decision and its execution.
[21] Quite clearly, the public interest
requires that if an administrative decision, no matter what it is, can be
challenged, the periods in which this can be done must remain short in order to
allow legal certainty and preclude the possibility that an administrative
decision previously considered valid could, after several months or even years,
be invalidated because one of the parties affected by the decision decided to
attack it several years later.
[22] It is understandable that the
applicant, representing himself, has had to deal with a dispute with the
military authorities over several years. However, he could have requested
advice at the time when there was clearly a firm decision by General Henault
denying his repeated requests that he not pay the $40,000 being claimed from
him.
[23] It would have been extremely useful
to the applicant to seek advice, even if it meant paying some money for
judicious legal advice which, at the time, could have steered him toward the
appropriate recourse.
[24] In this case, this is how I see the
facts: he decided not to challenge General Henault’s decision at the time, in
June 2003, and instead continued on a course of exchanges that ultimately
proved fruitless, knowing perfectly well that the Department clearly intended
to engage in civil proceedings to claim the sum in question, i.e.
$40,000.
[25] The applicant could not say he was
surprised in the summer of 2005, when he was served with an action claiming
that amount.
[26] As the respondent’s counsel
suggested, it is reasonable to think that, if the Department of National
Defence, through Her Majesty the Queen in right of Canada, had not sued in
docket T‑617-05, and had it not been for the Federal Court decision
of January 6, 2006 in that case, this matter would probably still be in a
stalemate and the applicant would not yet have applied for judicial review of
the decision.
[27] The applicant thought, at that
point, that he might, by way of a counterclaim, have the action of the
Department of National Defence dismissed and set-off the sums he owed against
the sums which, he said, the Department of National Defence owed to him for
damages sustained in previous years.
[28] After several months of litigation,
the Federal Court ultimately delivered a decision overturning a decision on an
appeal of a decision of the prothonotary dismissing the applicant’s allegations
in his counterclaim and informing him that he should have applied for judicial
review. Even then the applicant waited or failed to commence his proceeding for
almost four months before altering his strategy: presently, he is flatly asking
this Court to set aside General Henault’s decision.
[29] The case law to which I referred
earlier is clear in this regard. The applicant is bound to exhaust all of his
administrative remedies before he can bring an action on a monetary claim. In
this case, the road taken was more tortuous, but it has effectively
demonstrated to the Court that the ongoing intention of the applicant was not
to pursue his claim in order to have the decision of General Henault set aside,
but rather to ensure that the claim against him for $40,000 be avoided, one way
or the other.
[30] As to the grounds cited in support
of the challenge of the decision of June 2003, the applicant makes a number of
accusations: a threat against him; harassment and intimidation during his
training; deterioration of his health; mental, family and psychological stress;
and significant losses in salary. It is obvious that, at the stage of a motion
for extension of time, it is hard to make a realistic assessment as to whether
the applicant has a case and if his claim discloses one. However, there must
be, on the face of the record, some indications that his claim discloses a
tenable case.
[31] It seems to me that, in the
circumstances, the application does not, on its face, disclose a tenable case,
since the applicant conceded to the Court that he would have readily called off
his efforts to have General Henault’s decision set aside if the Department of
National Defence had abandoned its claim for $40,000.
[32] Moreover, it is clear that the
respondent has suffered some significant harm because of the delay, and
continues to do so. While the applicant cites the delay as having caused him
some harm, his admission that the abandonment of the $40,000 claim would have led
to his immediate abandonment of the administrative challenge is unambiguous
proof that the balance of convenience weighs heavily in favour of the
respondent, whose $40,000 claim has not yet been decided by a court — several
years after taking steps to obtain repayment by the applicant of the sums it
believes are owing to it.
[33] If this Court were to authorize, at
this stage, an extension of time to allow a challenge to General Henault’s
decision, which dates back to June 25, 2003, this would clearly result in
significant prejudice to the respondent, which would have no choice but to
suspend its claim once again pending a decision by another court on the
judicial review of General Henault’s decision, three years after that decision
was made and several more years after the occurrence of facts on which that
decision is based. Obviously, given the passage of time, that would make it
much harder for either side to offer its evidence before the Court.
[34] As to the final factor, whether
there was a reasonable explanation for the delay, the grounds submitted by the
applicant are simply ignorance of the law during the period extending from June
2003 to January 2006, and the difficulty in preparing his record in accordance
with the Federal Courts Rules during the period from January 2006 to
April 2006.
[35] My analysis of the evidence offered
by both sides, the affidavits filed, and the case law leads me to find that the
applicant has failed to discharge the onus on him to justify an extension of
time in the circumstances.
[36] Although it might have been
instructive if a fully independent court could have judicially reviewed the
decisions made by the Chief of Staff of the armed forces, General Henault,
dated June 25, 2003, the applicant cannot undertake this proceeding to quash a
decision that was made almost three years ago.
[27] The applicant is still a party to an
action that was brought against him, in which he has submitted a defence, but
it is now too late to seek judicial review of the decision made on
June 25, 2003.
[38] Accordingly, the motion for
extension of time cannot be allowed.
ORDER
THE COURT ORDERS AND DECLARES
THAT:
The motion for extension of time
be dismissed with costs.
“Pierre Blais”
Certified true translation
François Brunet, LLB, BCL
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