Date: 20031007
Docket: 03-T-22
Citation: 2003 FC 1165
Ottawa, Ontario, October 7, 2003
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
CAISSE POPULAIRE DESJARDINS MANIWAKI
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Caisse populaire Desjardins Maniwaki (hereinafter "the applicant") filed on May 2, 2003, to extend the thirty-day deadline mentioned in subsection 18.1(2) of the Federal Court Act for filing an application for judicial review from a decision by Industry Canada, Small Business Loans Administration (hereinafter "the Department") on February 7, 2002, namely an application for an extension of the fifteen-month deadline. The Department was represented by the Attorney General of Canada (hereinafter "the respondent").
[2] The applicant received an initial decision from the Minister dated March 7, 2001, denying the application on account of the applicant's delay in filing its claims.
[3] On October 5, 2001, the applicant, through its counsel, sent a letter (intended as an "appeal") seeking administrative review of the March 7, 2001 decision, including as attachments affidavits certifying that the claims had been sent within the specified deadlines, and expedition documents from the Canada Post Corporation for three of the four claims.
[4] On February 7, 2002, the Department rejected, by letter with reasons, counsel for the applicant's arguments which were received on February 11, 2002. One of the reasons given was that the Department simply had not received these four claims within the specified deadlines and that the Canada Post Corporation documents could be associated with other claims sent by Maniwaki area Caisses Populaires and not that of the applicant.
[5] The sequence of events is explained in part by two affidavits filed by Christine Carle, the applicant's general manager. Essentially, she stated that:
[TRANSLATION]
- Pursuant to the departmental decision of March 7, 2001, "she sought explanations of the various actions taken by her lawyer and as a result confused the concepts of administrative review, judicial review and appeal";
- following the second decision on February 7, 2002, she contacted her lawyer on February 26, 2002, to "ask for explanations about the reasons for the decision and to ask if something else could be done", and as her lawyer used the word "appeal" in commenting on the decision, she had the impression that the appeal had already been filed and this was why her lawyer was not instructed to file an appeal;
- the general manager explained that between February 7 and early August 2002 she and her lawyer left seven or eight telephone messages "here and there" but were unable to discuss the substance of the matter;
- in early August 2002, in a telephone conversation with her lawyer, she "clearly understood that an application for judicial review was possible, thereby ending the confusion that had existed for [herself]", and on August 27, 2002, obtained the approval of the applicant's board of directors to seek judicial review of the decision of February 7, 2002;
- at an unspecified date the general manager, in a telephone conversation with her lawyer, asked for an estimate of the fees, which she obtained orally, followed by written confirmation;
- once again there was confusion because the general manager thought she had given her lawyer instructions, whereas the latter on receipt of the letter confirming the fees was waiting for his client's representative to give him instructions;
- at some unspecified time the confusion was cleared up and the motion was then drawn up on April 30, 2003, and filed with the Court on May 5, 2003 . . .
[6] The parties appeared before the undersigned on June 9, 2003, and counsel for the applicant sought leave to file a more detailed affidavit than the one already filed. Leave was granted and two supplementary affidavits filed: one signed by the applicant's general manager and the other signed by her counsel. The respondent's counsel formally objected to the filing of the affidavit by applicant's counsel and the latter withdrew it at the start of the hearing on September 29, 2003.
POINT AT ISSUE
[7] Does the applicant, in its desire to file its application for judicial review, meet the requirements for deadline extension pursuant to subsection 18.1(2) of the Federal Court Act?
LAW
[8] Any application for judicial review must be filed within thirty days after the time the decision was communicated by the federal board, commission or other tribunal (see s. 18.1(2) of the Federal Court Act). To obtain an extension of this deadline, a party must meet certain requirements as explained in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263. The requirements are the following:
- A continuing intention to pursue his or her application;
- That the application has some merit;
- That no prejudice to the respondent arises from the delay; and
- That a reasonable explanation for the delay exists.
[9] Before undertaking analysis of questions involving the merits of the case and prejudice, Thurlow C.J. said in Grewal, supra, that it is first important to analyze "the intention to pursue the application" and take into account the explanation of the delay:
There remains, however, to determine whether there is any valid justification for not bringing the application within the 10-day period (now 30 days) 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 (now 30 days) to bring the application and maintained 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 only mitigate considerably against his chances for an extension.
(See Grewal, supra, at 277, Berkeley v. Canada (Minister of Citizenship and Immigration), [2001] FCT 35, para. 2, and Council of Canadians v. Canada (Director of Investigation and Research, Competition Act), [1997] F.C.J. No. 408, at paras. 3 and 4)
SUBMISSIONS
[10] The applicant argued that it met each of the requirements in Grewal. It always intended to challenge the Department's decision, from the time the first March 7, 2001 decision, was communicated, as indicated by the application for administrative review. The telephone conversation with the lawyer on February 26, 2002, following the decision resulting from the review, and the subsequent actions support that intention. On the second requirement, the existence of a case with merit, the applicant indicated only that the respondent's memorandum did not deal with this, and at the hearing referred the Court to the decision of February 7, 2002. On the third requirement, dealing with prejudice, the applicant maintained that the respondent would not suffer any prejudice. On the last requirement, of "a reasonable explanation for the delay", the applicant argued that:
1. they contacted the lawyer 19 days after receiving the February 7, 2002 decision;
2. the word "appeal" at the top of the letter led the general manager to conclude that the appeal was statute-barred;
3. as indicated by her calls to the lawyer, she always intended to have the board of directors' August 27, 2002 decision, corrected; and
4. later, the fact that this action was not brought sooner was the result of a misunderstanding.
[11] In rebuttal, the respondent considered that the applicant had, first, not shown the reasonable diligence that would justify considering the other three Grewal requirements. On the requirement for a reasonable explanation of delay, the respondent argued that there was no diligence shown by the explanations of the delay between August 27, 2002, the date the applicant's Board of Directors decided to initiate proceedings, and May 5, 2003, the date the application was filed with the Registry. Further, he submitted that the applicant's general manager's affidavits contradicted each other when in paragraph 5 of the April 30, 2003 affidavit, she said that several months later (after the February 7, 2002 decision) she requested a legal opinion from counsel; whereas in paragraph 10 of the June 20, 2003 affidavit, she mentioned contacting her counsel on February 26, 2002, to obtain explanations of the February 7, 2002 decision. The respondent added that the general manager's behaviour between February 26 and late August 2002 did not demonstrate any diligence on her part. Except for a telephone conversation in August 2002, the most that she did was try to contact her lawyer once a month without success. In reply to the applicant's argument that she was misled by the word "appeal", the respondent argued that in her affidavits this error was not dealt with in any way and the use of the word "appeal" by her counsel occurred in the telephone conversations (see paragraph 12 of the June 20, 2003 affidavit). Regarding the applicant's argument that she was not familiar with the actions that could be brought in the Federal Court, the respondent pointed out that according to earlier Court decisions this is not an argument. Additionally, the respondent indicated that she did not have to consider whether there was a reasonable explanation as the applicant had not acted with diligence. In conclusion, the respondent argued that by allowing an extension of time she would suffer prejudice because fifteen months had elapsed since the decision was communicated and the employee responsible for the four files no longer worked for the Department, as she had retired.
ANALYSIS
[12] Adopting the two-part approach suggested in Grewal, I must consider whether there was a reasonable explanation for the delay, and then whether the applicant has a reasonable opportunity to succeed. As Dubé J. put it in Berkeley, (supra, paragraph 2), it is essential for these two requirements to be met.
The Federal Court Trial Division has consistently interpreted the factors set out in Grewal as creating a two part test that must be satisfied in order for an extension of time to be granted: First, there must be a reasonable justification for the delay throughout the whole period of the delay and, second, the Applicant must have a reasonable chance of success in his case. The Applicant must satisfy both tests.
[13] Based on the evidence, I do not see the general manager's actions as indicating a clear intent to submit the February 7, 2002 decision, to judicial review. Her lack of understanding of the appropriate remedies is not an argument which the Court can accept. If the general manager concluded on February 26, 2002, that there were no appropriate remedies, how was it that she tried to contact her lawyer six or seven times to discuss possible action? The affidavits do not provide any information about this and do not indicate the necessary intent. Further, the period of inaction and lack of interest between the end of February and early August 2002 cannot, according to the analysis in Grewal, support the argument that there was an intent.
[14] What concerns me in this case is the lack of diligence in putting forward the objection. Even if there was in fact an intent, I have to say that it should have been demonstrated by taking some form of action. The general manager told the Court that she discussed Federal Court remedies with her lawyer before the February 7, 2002 decision and afterwards, on February 26, 2002. Despite this twofold consultation, the general manager still did not understand that there was the possibility of judicial review, not an appeal, in Federal Court. After the second consultation on February 26, 2002, the general manager and her counsel, having tried seven or eight times to get together, were still unable to discuss the matter until early August 2002, six months after the February 7, 2002 decision. It was in this conversation that the general manager [TRANSLATION] " . . . clearly understood that an application for judicial review was possible, thereby ending the confusion" between administrative review and the application for judicial review. I find it hard to understand how the general manager and her counsel were unable to communicate before early August 2002. Additionally, I note that the confusion continued thereafter. The Board of Directors authorized an action in the Federal Court on August 27, 2002. At an unspecified date, there was apparently a conversation between the general manager and the lawyer in which an estimate of costs was communicated and a written confirmation of the estimate was sent. The general manager considered that the instructions had been given but the lawyer was still waiting for confirmation of the instructions after sending the estimate. At some point, the confusion was cleared up and the motion was prepared in late April 2003, then filed in the Federal Court Registry on May 5, 2003. This latter confusion created a new eight-month delay. Except for the reference to a telephone conversation, the record is completely silent as to any explanation for the delay.
[15] Such actions do not indicate the applicant's diligence in seeking remedy. On the contrary, if the intent really existed (and the evidence did not show that it did), there was at the very least [TRANSLATION] "abandonment", "discontinuance" or failure to prosecute with diligence.
[16] In the thirty days following the February 7, 2002 decision, the applicant's representative was confused about her remedies. Once the confusion was cleared up in August 2002, she became confused again because, according to her version of the facts, the instructions were given whereas, according to her lawyer, he was waiting for instructions. About eight months elapsed before the confusion was cleared up and the proceeding initiated. The explanation given by the applicant about justification for the delay is not acceptable.
[17] Since the first requirement has not been met, I do not have to consider whether the case has any merit. However, it is worth mentioning that the applicant had the burden of establishing merit and has not met it. At the hearing, counsel for the applicant referred the Court to the February 7, 2002 decision. That is not a way of discharging the burden. It must be done by memorandum, including arguments with supporting precedents. The applicant's memoranda did not deal with it.
CONCLUSION
[18] For the reasons mentioned above, I conclude that the motion for an extension of the fifteen-month delay to enable an application for judicial review to be filed from the Department's decision on February 7, 2002 is dismissed, and the costs will be paid by the applicant.
ORDER
THE COURT ORDERS THAT:
The motion for an extension of time is dismissed, with costs against the applicant.
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"Simon Noël"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: 03-T-22
STYLE OF CAUSE: Caisse Populaire Desjardins Maniwaki and Attorney General of Canada
PLACE OF HEARING: Montréal
DATE OF HEARING: September 29, 2003
REASONS: Simon Noël J.
DATE OF REASONS: October 7, 2003
APPEARANCES:
Martin Castonguay FOR THE APPLICANT
Antoine Lippé FOR THE RESPONDENT
Dominique Guimond FOR THE RESPONDENT
SOLICITORS OF RECORD:
Martin Castonguay FOR THE APPLICANT
Antoine Lippé FOR THE RESPONDENT
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