Moussa v. Canada (Public Service Commission), 2006 FC 919

Date: 20060725

Docket: T-1209-02

Citation: 2006 FC 919

Vancouver, British Columbia, July 25, 2006

PRESENT:      The Honourable Mr. Justice Campbell

BETWEEN:

FRANCOIS ALAIN MOUSSA

Applicant

and

THE PUBLIC SERVICE COMMISSION

Respondent

and

THE IMMIGRATION AND REFUGEE BOARD

Respondent

REASONS FOR ORDER AND ORDER

[1]                With respect to the present appeal of Prothonotary Tabib's decision of May 9, 2006, it is agreed that the hearing should be conducted de novo because the determinations in question are vital to the Applicant's Application.

[2]                The issue for determination is whether the Applicant should be granted an extension of time to file his Application Record (the Record) with respect to his challenge to the findings and decision of a Public Service Commission investigation on a complaint of sexual harassment.

[3]                The conduct complained of by the Applicant occurred in 2001, and, as an unrepresented litigant, the Applicant filed the present Application on July 29, 2002. Except for a one-month period in the fall of 2002, the Applicant fostered the present Application without the assistance of counsel until October 2005 when the Applicant's present Counsel was retained. It is noteworthy that between July 28, 2004 and September 19, 2005, a stay of proceedings was granted due to the Applicant's poor health.

[4]                It is agreed that in order to succeed on the present motion, the Applicant must demonstrate: a continuing intention to pursue the Application; the Application has some merit; a reasonable explanation for why the delay in filing the Application record exists; and that no prejudice arises from the delay in filing the Record.

[5]                In my opinion, the point in time at which the Applicant must demonstrate the existence of the conditions mentioned is at the time the decision on the motion is being made, in the present case being May 9, 2006.

[6]                On the evidence of the course of conduct of this Application, there is no doubt that the Applicant has exhibited a continuing intention to pursue the Application since the date of its filing. While, as an unrepresented litigant, the Applicant's conduct in conforming to the Rules has been variable, in my opinion, nevertheless, he has always possessed an intention to pursue the Application. The fact of the present motion being made is substantial proof of this intention. I accept that the delay in filing the Record is fundamentally connected to the fact that, until recently, the Applicant has been unrepresented by counsel. This condition has been rectified.

[7]                On the present motion before me, Counsel for the Applicant has produced the Record to be served and filed if the motion is granted. On the face of it, the Applicant's Application does have merit. Counsel for the Respondent has objected to the Record being considered on the present motion since, it is argued, the present decision should be made only on the evidence before the Prothonotary. I do not agree that considering the Record has the effect of expanding on the evidence before the Prothonotary.

[8]                I accept Counsel for the Applicant's argument that the Record brings clarity to the due process and legal issues raised by the evidence filed since the Application was commenced. In my opinion, it is only fair and just to take this clarification into consideration in the present appeal even though it was not available to the Prothonotary at the time of the making of the decision under appeal.

[9]                While the decision being challenged was made some time ago, there is no evidence that any prejudice will be suffered by the Respondent in the present Application by having the judicial review proceed.

ORDER

Accordingly, I grant the Applicant's motion for an extension of time to file the Application Record, and order that it be served and filed within 30 days of this Order.

"Douglas R. Campbell"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1209-02

STYLE OF CAUSE:                           FRANCOIS ALAIN MOUSSA v. THE PUBLIC SERVICE COMMISSION et al.

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       July 24, 2006

REASONS FOR ORDER AND ORDER:                         CAMPBELL J.

DATED:                                                                                  July 25, 2006

APPEARANCES:

SOLICITORS OF RECORD: