Williams v. Canada (Attorney General), 2003 FC 1526

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2003 FC 1526

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Date: 20031230

Docket: 03-T-50

Citation: 2003 FC 1526

Ottawa, Ontario, this 30^th day of December, 2003

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

MARCUS WILLIAMS

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1] This is a motion by the applicant filed October 14, 2003, for an order extending the time to file a notice of application for judicial review.

Facts

[2] On March 27, 2003, the applicant requested that the Public Service Commission of Canada (the "Commission") initiate an investigation under section 7.1 of the Public Service Employment Act (the " P.S.E.A.") into his allegations of "staffing irregularities" with Human Resources Development Canada ("H.R.D.C.").

[3] The applicant's request was denied by letter dated June 23, 2003. The letter of denial indicated that the request was untimely, that the Commission would not investigate when alternative recourses under the P.S.E.A. are available and that the applicant's request did not meet the criteria required to investigate pursuant to section 7.1 of the P.S.E.A.

[4] The applicant sent an e-mail to the Commission on August 5, 2003, requesting reconsideration of the June 23 decision. By letter dated August 13, 2003, the Commission declined the request and confirmed the original decision of June 23, 2003.

[5] The applicant's notice of motion requests an extension of time to file an application for judicial review of the August 13 letter, calling it a decision. The applicant's supplementary record, however, states that the decision to be reviewed is the June 23 decision of the Commission.

[6] The Federal Court of Appeal in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (FCA) on line QL, has established the following four criteria which must be satisfied before an extension of time is granted:

(1) a demonstrated intention formed within the time limit to pursue the application;

(2) a reasonable explanation for the delay;

(3) no prejudice to the respondent arises as a result of the delay; and

(4) there is some merit to the application.

The onus is on the applicant to establish all four elements in order for an extension of time to be granted.

Issue

[7] Should the motion for an extension time be granted?

Intention to proceed with the application

[8] A period of approximately four months (111 days) passed before there was any indication from the applicant that he intended to pursue an application for judicial review. Although the August 5, 2003, request for reconsideration demonstrates an intention on the part of the applicant to pursue the matter, it does not operate as a vehicle to extend time. Further, the e-mail requesting reconsideration does not establish that the applicant intended to pursue an application for judicial review. In any event, it was sent two weeks past the deadline to file a judicial review of the Commission's decision. The applicant has adduced no evidence that he had formed an intention to proceed with a judicial review application of the June 23, 2003, decision of the Commission within the time lines provided.

Explanation for delay

[9] Even if I were satisfied that the applicant had formed an intention to proceed with the application for judicial review within the time limit for doing so, and I am not, the applicant has failed to provide a reasonable explanation for the delay.

[10] The applicant has offered no specific evidence or argument supporting his assertion that he had a justifiable reason for delay. He argues essentially that the delay was due to his union officers not providing him with proper information respecting time lines and process to enable him to pursue the judicial review application.

[11] The applicant's evidence is that he relied on his union officers to guide him through the often complex rules and procedures and attests that these officers were fully aware of his "earnest desire to continue to pursue any and all avenues open to [him]". A listing of exchanges with his union, annexed to his affidavit, is offered as evidence justifying the delay. However, the chronology of exchanges, entitled "Dates of Discussions with Union", only lists entries up to February 24, 2003, the date he withdrew his "appeal of PM-05". There is simply no evidence before me dealing with the relevant time period, that is to say from June 23, 2003, the date of the impugned decision to the date the within motion was filed.

[12] I am substantially in agreement with the respondent's argument that the applicant's affidavit evidence does not address the relevant time period and his stated reliance on the union officers does not excuse his obligations to make all reasonable attempts to inform himself of the process and to file on time. We are dealing with a four month delay which cannot be considered a mere administrative slip or minor non-compliance with the rules. The reasons provided by the applicant are insufficient to explain the delay and do not justify granting an extension of time. Further, the delay cannot be said to have been beyond the control of the applicant.

Merits of the application

[13] Moreover, I am not persuaded that the applicant has a reasonable chance at success in the judicial review application. In my view, he has not established an arguable case. Section 7.1 of the P.S.E.A. provides that: "The Commission may conduct investigations and audits on any matters within its jurisdiction." The Commission will only exercise its discretionary power to investigate if all of the four conditions set out in its policy governing investigations pursuant to section 7.1 of the P.S.E.A. are met. One of these four conditions provides that there be "... no other recourse available for the matter raised, either under the P.S.E.A., a collective agreement, or any other Act, such as the Public Service Staff Relations Act [and] the Canadian Human Rights Act."

[14] The applicant does not dispute the fact that he filed a complaint in this matter under the Canadian Human Rights Act and that the Canadian Human Rights Commission is currently investigating the applicant's allegation. Consequently, there is clearly at least one alternative recourse available to address his complaint, proceedings under the Canadian Human Rights Act. Since the applicant has accessed one of the available recourses, his case does not meet all of the four conditions under the policy and, therefore, does not qualify for investigation under section 7.1 of the P.S.E.A.

Conclusion

[15] I conclude that the test for granting an extension of time has not been met in the case at bar. The applicant has not established a continued intention to seek judicial review, has not provided a reasonable explanation for the delay, and has failed to satisfy me of the merit of the judicial review application. For the above reasons, the motion will be dismissed.

ORDER

THIS COURT ORDERS that:

1. The motion for an extension of time to file a judicial review application of the June 23, 2003, decision of the Public Service Commission of Canada is dismissed.

"Edmond P. Blanchard"

Judge

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET: 03-T-50

STYLE OF CAUSE: Marcus Williams v. The Attorney General of Canada

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: December 17, 2003

REASONS FOR ORDER BY: BLANCHARD, J.

DATED: December 30, 2003

APPEARANCES BY:

Marcus Williams For the applicant

For the respondent

SOLICITORS OF RECORD: