Date: 20061027
Docket: 06-T-20
Citation: 2006
FC 1300
Ottawa, Ontario, October 27, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
WASHAGAMIS FIRST NATION
OF KEEWATIN, ONTARIO
Applicant(s)
and
JEREMY LEDOUX, ARVEL CHERRY,
GRACE CHARTRAND, ESTER BUNN,
CHERYL BIRD, JOAN LEDOUX,
STARLA LEDOUX, ROSALIE PETWANIKEB
and FABIAN VAUGH
Respondent(s)
REASONS FOR ORDER AND ORDER
[1]
This is a
motion brought by Washagamis First Nation (Washagamis) seeking an order under
Rule 8(1) of the Federal Courts Rules extending the time for bringing an
application for judicial review from a Canada Labour Code, R.S.C. 1985,
c. L-2 adjudication decision.
Background
[2]
On June 6,
2003, Washagamis terminated the employment of the nine Respondents in this
proceeding. In the result, the Respondents filed complaints under the Canada
Labour Code alleging unjust dismissal.
[3]
In
accordance with its practice, HRDC appointed an Inspector to investigate the
Respondents’ complaints and to attempt to facilitate settlement of their
claims. The Record indicates that the HRDC Inspector and legal counsel for the
Respondents had considerable difficulty in obtaining a meaningful dialogue with
legal counsel retained by Washagamis, namely Douglas Keshen.
[4]
In May
2004, Mr. Keshen advised that he was in discussion with the Chief and Council
and Third Party Manager of Washagamis with a view to obtaining settlement
authority. Nothing further came of Mr. Keshen’s representation and the
Respondents requested that their complaints be adjudicated.
[5]
In August,
2004, Jack M. Chapman, Q.C. was appointed as Adjudicator and a conference call
was scheduled for September 7, 2004 to discuss preliminary issues. That call
was postponed because Washagamis had retained new legal counsel, namely Orvel Currie
from Winnipeg. By agreement of the
parties, the conference call was then rescheduled for September 20, 2004 and
the hearing dates for the adjudication were fixed for November 8 to 10, 2004.
[6]
In early
October, 2004, Mr. Currie requested an adjournment of the hearing dates to
allow him to obtain more information from his client. Legal counsel for the
Respondents, Johanna Dusolt, initially declined that request but later
acquiesced when she was advised about the possibility that the claims were
covered by insurance. Mr. Chapman confirmed the adjournment without day in an
email sent to counsel for both parties on November 4, 2004. That email also
advised that, as discussed with counsel, he would hold open dates for the
adjudication in February and March, 2005.
[7]
In early
November, 2004, Ms. Dusolt wrote to Mr. Currie seeking confirmation of his
availability to proceed with the adjudication on the dates proposed by Mr.
Chapman. Mr. Currie failed to respond to that inquiry and Ms. Dusolt wrote to
him again on December 7, 2004. When Ms. Dusolt heard nothing from Mr. Currie,
she wrote to Mr. Chapman to fix dates for the adjudication.
[8]
Mr.
Chapman wrote to both counsel on January 31, 2005 expressing his concern about
the scheduling delays created by Mr. Currie’s apparent inability to obtain
instructions. His letter stated, in part:
I cannot wait much longer to set dates
for the hearing of the above matters. I appreciate that the Insurer has not
yet issued any instructions to Counsel. However this matter has gone on long
enough. Accordingly I am only prepared to wait until Friday, February 11th.
On Monday February 14th, I intend to communicate with any of the
parties on record to date, and will then set dates for the hearings. Thank you
for your co-operation.
Once again, Mr. Currie failed to respond prompting Mr.
Chapman to write again to counsel on February 14, 2005. That letter stated:
On January 31st, I advised
that I planned to set the hearing dates on February 14th. I did not
hear from anyone and earlier today I called all of the parties, including the
First Nation. I also left a message for Mr. Currie.
This matter has been outstanding since
August of 2004 and, as previously advised, I am now setting the date. The
Hearing will take place on March 2nd, 2005 commencing at 9 a.m. It
is anticipated that the Hearin[g] will take place at 975 Alloy Drive in Thunder Bay. If there is any change you will be
advised.
[9]
One day
before the commencement of the adjudication, Mr. Currie wrote to Ms. Dusolt to
advise that he was no longer acting for Washagamis and that all further
communication should be directed to the Chief and Council. Mr. Currie’s letter
offered no explanation for his last-minute withdrawal but, in an affidavit
deposed by Marie Morrison on behalf of Washagamis, the following additional
details are provided:
2. Over the course of
the two years of working with the First Nation, in addition to my other
responsibilities, I was instructed to oversee and make recommendations to Chief
and Council of the First Nation regarding the Adjudication Process of the
respondents.
3. One of my duties
was to communicate with legal counsel acting on behalf of the First Nation. I
spoke directly on several occasions, with Orvel Currie, the first lawyer retained
by the First Nation to act on behalf of the First Nation at the hearing, and
then with Dean Kropp, a lawyer subsequently retained by the First Nation to act
on behalf of the First Nation.
4. Mr. Currie was the
first lawyer retained by the First Nation to represent their interests against
the respondents in the Labour Canada adjudication that was eventually
adjudicated by Mr. Jack Chapman in Kenora, Ontario on March 2, 2005.
5. I called Mr. Currie
on or about a week before the hearing to confirm his attendance at the
hearing. Mr. Currie informed me at that time, that he may not be able to
personally attend but that he would have another lawyer from his firm present
to act on behalf of the First Nation at the hearing. I called Mr. Currie’s
office a few days before the adjudication to confirm Mr. Currie or another
lawyer from his firm would be at the hearing. Mr. Currie was not available so
I left messages asking him to return my call and confirm who was attending the
hearing from his office. On or about March 1, 2005, the day prior to the
scheduled hearing date, Mr. Currie contacted me by phone and advised me that he
would not be able to make it to the hearing, nor would another lawyer from his
firm be available to act on behalf of the First Nation at the hearing. Mr.
Currie further confirmed that he would not be present at the hearing in the
email attached hereto as Exhibit “A”. To the best of my knowledge, at no time
did Mr. Currie provide a reason as to why he or another lawyer from his firm could
not attend the hearing.
[10]
Mr.
Currie’s email to Ms. Morrison offered the following “explanation” for his
conduct:
Simply attend advise of your position and
we can only appeal accordingly.
Insurance company had the matter. There
was a change in Band management. Counsel was not and could not be retained
until we knew what insurance company was doing.
[11]
Ms.
Morrison deposes that, on March 1, 2005, she contacted Mr. Chapman to request
an adjournment which was refused. She then appeared before Mr. Chapman when
the adjudication was convened on March 2, 2005 and again unsuccessfully sought
an adjournment. Although Mr. Chapman encouraged Ms. Morrison to remain at the
hearing to participate on behalf of Washagamis, she declined to do so and
departed.
[12]
Shortly
after the adjudication hearing was concluded, Washagamis retained new counsel,
namely Dean Kropp of Winnipeg. Mr. Kropp wrote to Mr.
Chapman on March 10, 2005 requesting that the hearing be reopened to allow
Washagamis to call evidence. Mr. Chapman declined that request in a letter
dated March 14, 2005.
[13]
A second
request to reopen was then made by Mr. Kropp but it, too, was refused by Mr.
Chapman on April 5, 2005.
[14]
On July 5,
2005, Mr. Chapman made his award in favour of all nine Respondents. He found
that they had all been wrongfully dismissed and he assessed their respective
damages on the basis of one month of salary for each year of employment. The
global award of damages and costs in favour of the Respondents came to almost
$210,000.00.
[15]
Mr.
Chapman’s decision contains the following rationale for his rulings on
Washagamis’ motions to adjourn and to reopen the hearing:
After my appointment as Adjudicator, I
contacted the parties on several occasions. It is important that the facts
relating to the hearing dates be recorded. Initially Mr. D. Keshen, Barrister,
of Kenora, Ontario represented the
Complainants. Within days of my appointment as Adjudicator I was advised that
Mr. O. Currie, Barrister, of Winnipeg, would now be acting for the
Employer. I accordingly attempted to schedule a conference call with counsel
but had great difficulty in having Mr. Currie, or his office, confirm that he
would be available for any specific date. Nevertheless a conference call was
initially scheduled for September 7th, 2004 but was rescheduled for
September 20th, 2004. At that time the hearings were scheduled, by
agreement, for November 8th, 9th and 10th,
2004 in Kenora. On October 5th, 2004 counsel for the Employer
advised that the Employer was going to allege that it had Just Cause for the
terminations and requested an adjournment so that it could investigate and
obtain the necessary information and documentation. The Employer was unable to
estimate how long it might require to obtain that information and to prepare
the case. Counsel for the Complainants was asked but refused to consent to the
adjournment and it was denied. The Employer then issued subpoenas to
witnesses.
Counsel for the Employer then ascertained
that the Employer had insurance coverage but was unable to confirm that the
insurer, who by then had assumed conduct of the matter on behalf of the
Employer, would retain him. Counsel for the Complainants advised that she
confirmed that an insurer was involved and accordingly consented to an adjournment
on condition that the matter proceed to hearing no later than February of
2005.
From November, 2004 until approximately
the latter part of January, 2005 the Adjudicator made numerous attempts to
ascertain from Mr. Currie, or his office, if he was acting on behalf of the
insurer. That confirmation and, in fact, any other information was not
received. On January 30th, 2005 the Adjudicator wrote to the
parties and advised that if he did not receive any information prior to
February 11th, a conference call would be held on Monday, February
14th, 2005 at which time hearing dates would be set. No response
was received either from counsel for the Employer or from any of his associates
and they apparently chose not to be available for the conference call which
took place on February 14th. In fact, the Employer was also advised
of the conference call but no one from the First Nation made themselves
available for that call. Counsel for the Complainants took part in the call
and the hearing date was set to take place on March 2nd, 2005 in Thunder Bay, Ontario. However as most of
the Complainants lived in close proximity to Kenora, Ontario, the hearing was re-scheduled to take
place there. Notice was sent to all parties advising of the date, time and place
of the hearings.
On February 24th, 2005 the
associate counsel for the Employer advised that they had been retained by the
insurer and requested an adjournment due to other commitments and to obtain
further information. As well, there were numerous telephone conferences
between the Adjudicator and that associate. An adjournment of some two months
was requested. Counsel for the Complainants strenuously objected to any
further adjournment. The adjournment was denied. On March 1st,
2005 Mr. Currie wrote to counsel for the Complainants and advised that he was
no longer acting for the Employer. A copy of that letter was received by the
Adjudicator on March 2, 2005 at the hearing.
Approximately two days before the hearing
Ms. Morrison, on behalf of the Employer contacted the Adjudicator and requested
an adjournment of an unspecified length and could not give any idea as to who
the First Nation would retain to act as counsel for the Employer, when such
person might be appointed or when they might be available. Her request for
such an adjournment was denied. However the Adjudicator strongly recommended
that she or someone on behalf of the Employer appear at the hearing.
When the hearing convened all of the
Complainants were present along with their counsel, Ms. Dusolt who had
travelled to the hearing from Thunder
Bay. Ms.
Morrison and a member of the Band Council were present. She advised that she
would only make a statement and would then leave. She was urged to remain and
the Adjudicator made a lengthy statement as to what had transpired. It was
repeatedly explained to her that the proceedings did not have the same
formality as in a Court of law. However, she was adamant, made her statement basically
alleging that the lack of counsel was not the fault of the Employer, and then
left. She was again specifically told that if the evidence of the Complainants
were unchallenged, it would most probably be accepted. She again stated that
she would not take part in the proceedings and left. The hearing then
proceeded.
Subsequent to the hearing, another firm
in Winnipeg was retained to act on behalf
of the Employer and on March 10th, 2005 that firm requested that the
hearings be re-opened. The request was denied.
It had been pointed out to each counsel
for the Employer, and to Ms. Morrison that close to two years had elapsed since
the terminations and that many of the Complainants were without funds,
employment or resources. There did not appear to be any sympathy for the
circumstances of the Complainants either on the part of Counsel or the
Employer. Of course no determination of any kind had been made at that time as
to whether any of the Complainants would be successful.
It should be noted that all of the
Complainants attended at the hearing and it may well have been difficult for
many of them to be required to attend at a later date, especially when that
date was unknown.
[16]
According
to Ms. Morrison’s affidavit, the Chief and Council for Washagamis instructed
Mr. Kropp to “appeal” Mr. Chapman’s award. Those instructions were provided on
or about July 15, 2005.
[17]
By letter
dated July 21, 2005 counsel for Washagamis advised Ms. Dusolt that an appeal
from Mr. Chapman’s award was a possibility and that he was seeking
“instructions” from the Band. Some efforts to achieve settlements of the
claims were then pursued by the parties but those proved to be unsuccessful.
[18]
It was not
until January 2006, that Mr. Kropp prepared a draft Notice of Application for
Judicial Review. He then advised Washagamis that, because the application was
out-of-time, a motion to extend time would be required.
[19]
It took
until March 2, 2006 for Mr. Kropp to file the Notice of Motion seeking an
extension of time to bring an application for judicial review. When that
motion was argued before me at Winnipeg on September 11, 2006, Mr.
Kropp had been replaced by Mr. Greg Rickford and it bears repeating that Mr.
Rickford has not been responsible for the delays in moving this matter
forward.
[20]
It is also
noteworthy that even as late as March 1, 2006 Washagamis had not yet identified
or compiled all of the documents upon which it intended to base its defence
case. In an affidavit by Alfred Thiessen sworn on March 1, 2006 on behalf of
Washagamis, he states:
I am advised by the Applicant, and do
verily believe, that it is in the possession of further materials which
contradicts the length of service being claim by the majority of the
Respondents which we would intend to lead at a further hearing should one be
granted. The Applicant has and continues to collect materials which are
contained in numerous boxes packed in a storage basement.
Issue
1. Is
this an appropriate case under Rule 8 to extend time to allow Washagamis to
commence an application for judicial review from the decision of Adjudicator
Chapman?
Analysis
[21]
It is now
almost 3 ½ years since Washagamis terminated the employment contracts of the
nine Respondents and almost 1 ½ years since the Respondents obtained their
respective Canada Labour Code awards. Washagamis does not now contend
that it had just cause for these terminations; however, it wants an opportunity
to re-adjudicate the issue of quantum by contesting the length of service of
some of the Respondents. Washagamis says that Adjudicator Chapman wrongly
deprived it of the right to be heard by refusing its adjournment request and by
later denying it the right to reopen the case to allow additional evidence to
be called.
[22]
By the
time Washagamis brought this motion to extend time it was already over six
months late. Its reason for the delay is essentially to attribute
responsibility to its legal counsel, Mr. Kropp, but, in the affidavit of Ms.
Morrison, it is deposed that Washagamis is “unaware as to why Mr. Kropp had not
complied with the limitation period requirement”. The affidavit sworn by Mr.
Kropp’s articling student, Mr. Thiessen, acknowledges that Washagamis received
Adjudicator Chapman’s decision on July 15, 2005 and, at least by July 25, 2005,
Mr. Kropp had been given instructions to “appeal”. Nothing seems to have been
done to further that intention beyond occasional references to an appeal in
settlement correspondence exchanged over the next four months.
[23]
The
considerations that are typically applied to the exercise of the discretion to
extend time under Rule 8 have been frequently discussed. In 687764 Alberta
Ltd. v. Canada, [1999] F.C.J. No. 545, 166
F.T.R. 87, Justice Karon Sharlow held as follows:
14 There are no hard and fast rules
that will determine in any particular case whether leave will be granted to
extend a time limit for the commencement of a legal proceeding. The purpose of
the time limit is to give effect to the principle that there must be an end to
litigation. On the other hand, giving the court the discretion to extend the
time limit recognizes that an extension of time may be necessary to do justice
between the parties. These competing considerations must be borne in mind in
considering whether to grant the extension.[See Note 2 below]
Note 2: Grewal v. Minister of Employment and
Immigration, [1985] 2 F.C. 263 (F.C.A.); Consumers' Ass'n (Can.) v.
Ontario Hydro [No. 2], [1974] 1 F.C. 460 (F.C.A.).
15 The cases set out the factors to
be taken into account. The most important of these is that the applicant must
demonstrate an arguable case for the remedy sought or, as is said in some
cases, a reasonable chance of success. In addition, the delay should be
explained or justified, and there should be evidence that the applicant
exercised reasonable diligence in asserting its rights. Usually this consists
of evidence of a bona fide intention, in existence within the statutory time
limits, to seek redress for the impugned decision, and evidence of the steps
taken to pursue the matter. Any prejudice to the respondent or third parties must
be taken into account.
[24]
More
recently in Jakutavicius v. Canada (Attorney General), [2004] F.C.J. No. 1488, 2004 FCA 289,
Justice Marshall Rothstein confirmed the relevant considerations for extending
time as noted above by Justice Sharlow. He went on to state that this list of considerations
was not exhaustive and should not be applied mechanically. He also confirmed
that the weight to be applied to the factors may vary from case to case.
[25]
In order
to apply Rule 8, I will now consider the several factors which bear on the
exercise of that discretion.
Continuing Intention to Proceed
[26]
The
evidence suggests that Washagamis had instructed its counsel to “appeal” the
Adjudicator’s decision within the time allowed. That intention is reflected in
some of the subsequent communications between counsel but moreso as leverage to
pursue a settlement objective than as an unqualified statement of actual
intention. The significance of this is also diminished somewhat by the failure
of Washagamis’ counsel to do anything in furtherance of his client’s apparent
instructions for over six months. This is not a situation of inadvertence or
simple mistake but rather a situation where counsel either deliberately ignored
or was indifferent to the filing requirement for a considerable period of time.
Length of Extension Requested
[27]
The delay
in this case is a long one and well beyond the norm. Most of the cases where
relief is granted involve delays of days or a few weeks, but not months.
Prejudice to the Opposing Party
[28]
There is a
clear and obvious prejudice to the nine Respondents if an extension is
granted. Washagamis does not contend that it had cause for dismissal of any of
the Respondents and, in the materials filed, it apparently only takes issue
with the length of service attributed to three of the Respondents. In other
words, Washagamis concedes that it owes all of the Respondents some amount and
probably owes several of the Respondents the entire amounts awarded. Nevertheless,
the Respondents have received nothing from Washagamis in even partial
settlement of their respective awards. Despite its obligations, Washagamis has
required the Respondents to attempt to collect their awards by resorting to the
difficulty and expense of execution. Washagamis is, therefore, asking for
discretionary relief in the face of its own flagrant indifference to its legal
obligations and in circumstances where it, or its counsel, or both, clearly
obstructed the timely disposition of the Canada Labour Code
adjudication.
[29]
The Respondents
have waited 3 ½ years for their compensation and, if a judicial review was now
to proceed, an additional delay of up to a year could well be the result.
Washagamis could have minimized the effect of this factor had it made partial
payments to the Respondents and/or paid any disputed amounts into Court.
Instead, it has maintained a strategy of continuing resistance to all of the
Respondents despite evidence of substantial hardship to many of them.
Explanation for Delay
[30]
The
explanation by Washagamis for the delay is to shift responsibility to its legal
counsel. Even at that, it only says that it instructed counsel and is ‘unaware
as to why Mr. Kropp had not complied with the limitation period requirement”.
Mr. Thiessen’s affidavit says nothing about the failure to file beyond noting
the stated intention to appeal and by referring the conduct of intervening
settlement discussions. The latter consideration is, of course, no excuse for
failing to initiate the application as required by the Rules.
[31]
The
Federal Court authorities are not entirely uniform in their treatment of the
issue of solicitor negligence as an explanation for a failure to meet a filing
deadline. Some of the authorities treat the client and its counsel as one and
do not excuse the client for the negligence or failings of its counsel: see Chin
v. Canada, [1993] F.C.J. No. 1033, 69 F.T.R. 77 at para. 10 and Cove v.
Canada, [2001] F.C.J. No. 482; 2001 FCT 266 at para. 10. Other authorities
have been somewhat more open to excusing a litigant for the failings of its
counsel: see Mathon v. Canada, [1988] F.C.J. No. 707, 28 F.T.R. 217; Panta
v. Canada, [1993] F.C.J. No. 898, 66
F.T.R. 73 and Bogdanov v. Canada, [1992] F.C.J. No. 1190.
[32]
The
arguable conflict among the Federal Court authorities was nicely summarized by
Prothonotary Hargrave in Muhammed v. Canada, [2003] F.C.J. No. 1080,
2003 FC 828, where he observed at paras. 20 and 21:
20 Chin and Mathon are
difficult to reconcile. In Chin the focus is on the concept that client and
counsel are one and the same, thus the client is dragged under by the weight of
the incompetent counsel. In Mathon, the case of the missed filing date,
the focus, by way of Supreme Court of Canada authority, is on the concept that
a client "who has acted with care should not be required to bear the
consequences of such an error or negligence" (page 229). This is all the
more the situation where the client lost a right as a result.
21 In choosing between the two
approaches it is fitting to turn to Grewal (supra) which requires me to
balance the factors bearing on a time extension with the overall view of doing
justice between the parties. I will follow the line of cases culminating in Mathon,
for the present instance presents the clear and specific case referred to by
Mr. Justice Rothstein, as he then was, in Drummond (supra). Taking all
of the circumstances into consideration, including the continuing intention to
pursue the application; the merit of the application; the lack of any prejudice
accruing to the Respondent by reason of delay; the explanation for the delay
and particularly that it was former counsel who, by abandoning the Applicants
after allowing time to run, deprived the Applicants of their right; and that to
terminate this judicial review proceeding on the basis of the procedural
negligence and/or incompetence of former counsel would constitute a windfall to
the Crown, a time extension is appropriate. Costs shall be in the cause.
[33]
I am inclined
to the view that where a litigant establishes that it clearly instructed its
counsel to proceed on a timely basis and that the failure to do so was solely
the result of an error by counsel, the litigant should not be constructively
held to have been a party to the error. Such an approach is also consistent
with that adopted by other courts in dealing with solicitor error and missed
limitation periods: see Woudstra v. Piston, [2004] O.J. No. 594, [2004]
O.T.C. 160 (S.C.J.); Dreifelds v. Burton (1998), 38 O.R. (3d) 393,
[1998] O.J. No. 946 (C.A.) and Tait v. CNR (1984), 11 D.L.R. (4th)
460, 64 N.S.R. (2d) 187, [1984] N.S.J. No. 398 (S.C.).
[34]
Nevertheless,
the problem of solicitor error in this case is not quite so apparent because
the evidence to support the argument is weak. It is not obvious from the
affidavits filed on behalf of Washagamis that it was completely uninformed
about its counsel’s apparent failure to follow its instructions. Where the
delay is lengthy and the litigant has been actively engaged in the conduct of a
case and the furtherance of a litigation strategy such as that adopted here,
the case for shifting complete responsibility to counsel for a filing error is
weakened. A litigant cannot be wholly excused where it chooses to sit idly on
the sidelines and fails to hold its counsel accountable.
[35]
The
circumstances of this case are similar to those in Nunez v. Canada,
[2000] F.C.J. No. 555, 189 F.T.R. 147, where the affidavit evidence to support
an allegation of solicitor negligence
was found to be deficient. There Justice Pelletier declined
to grant relief for the following reasons:
16
The
failure of a solicitor to take the proper steps on behalf of the client was
found to be special reasons in Panta v. Canada [1993] F.C.J. No. 898 but in that case,
the solicitor filed an affidavit admitting her role in the delay.
Conspicuously, that is not the case here.
…
19 I am not prepared to accept an
allegation of serious professional misconduct against a member of the bar and
an officer of this court without having the member's explanation for the
conduct in question or evidence that the matter has been referred to the
governing body for investigation. In this case, there was ample opportunity to
do one or the other but neither was done. The failure to do so is inconsistent
with the gravity of the allegations made. This is not a question of being
solicitous of lawyers' interests at the expense of their clients. It is a
question of recognizing that allegations of professional negligence are easily
made and, if accepted, generally result in the relief sought being granted. The
proof offered in support of such an allegation should be commensurate with the
serious nature of the consequences for all concerned.
[36]
This issue
of the sufficiency of evidence was also considered in Jules v. Canada,
[2001] F.C.J. No. 1027; 2001 FCT 697, where Justice Yvon Pinard found the
allegation of solicitor negligence to be insufficient because it was too
“general” in nature (see para. 4).
[37]
It is not
enough for a litigant to allege that its counsel was negligent and then to
claim that it knows nothing more. A litigant in such a situation must make the
necessary inquiries of its counsel to find out exactly why the filing deadline
was missed and to offer clear and convincing evidence to substantiate its own
lack of responsibility. Usually that is accomplished by providing an
affidavit sworn by counsel admitting to the error and confirming that the
client was blameless. If that evidence is not put forward, it is often because
counsel has a different version of what took place. The affidavits filed here
on behalf of Washagamis are not sufficient to establish that it bears no
responsibility for the filing error. In fact, the affidavits are insufficient
to establish why the filing deadline was missed at all.
Has Washagamis Established an Arguable
Case for Quashing the Adjudication Decision?
[38]
In this
case, Washagamis wants to challenge the procedural rulings made by Adjudicator
Chapman by which its requests for an adjournment and for a reopening of its
case were refused. It says that it has an arguable case and refers to Penelakut
Indian Band v. Charlie, [1994] F.C.J. No. 95, 73 F.T.R. 150 and Clerk v.
CPR, [2001] F.C.J. No. 710; 2001 FCT 449, as authorities for the right to
be heard in the context of motions to adjourn or to reopen a hearing.
[39]
The facts
which grounded the rulings in Penelakut Indian Band and Clerk,
above, were far removed from those which support Adjudicator Chapman’s
procedural decisions. From Washagamis’ admittedly unjustified terminations of
the Respondents’ employment to the repeated obstructionist conduct Washagamis
and its counsel, Adjudicator Chapman had a plausible basis for denying
Washagamis’ last minute requests for further delay.
[40]
While I am
prepared to find that Washagamis has an arguable case, its proposed challenge
to Adjudicator Chapman’s procedural ruling is not without considerable doubt.
When one adds to this consideration that Washagamis has, at best, only a
partial defence to the claims of several of the Respondents, the significance
of this factor is further diminished.
Conclusion
[41]
After
considering the test for relief under Rule 8, I am not prepared to grant an
extension to Washagamis to commence its proposed application for judicial
review. If it has been prejudiced by the failings of its legal counsel, it has
other available recourse.
[42]
The motion
is, therefore, dismissed with costs payable to the Respondents in the amount of
$3,500.00 inclusive of disbursements.
ORDER
THIS COURT ORDERS that the motion for an extension to
file an application herein for judicial review is dismissed with costs payable
to the Respondents in the amount of $3,500.00 inclusive of disbursements.
“ R.
L. Barnes ”
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