Date: 20040913
Docket: T-819-04
Citation: 2004 FC 1239
BETWEEN:
DIANE MAGAS and RICHARD CONDO
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion by the applicant Magas pursuant to rules 8 and 55 of the Federal Court Rules, 1998 (the Rules) for an extension of the period for service and filing of the Applicant's Record under Rule 309.
Facts
[2] On April 26, 2004, the applicant Magas and her husband, Richard Condo, commenced an application for judicial review of the decision of the third level of the Correctional Service of Canada denying their request to participate in the private family program ("PFV") at Drummond Institution, which decision was rendered on April 22, 2004.
[3] However, Mr. Condo was transferred from Drummond Institution to Bath Institution on April 23, 2004. Upon his arrival at Bath he applied to participate in the PFV program.
[4] In her affidavit, the applicant Magas states:
A positive decision from Bath on the PFV application would have rendered the within application moot. Mr. Condo and I therefore decided to wait for the decision at Bath prior to proceeding further with this matter in the hope of obtaining a positive decision and therefore avoiding the court process in the within matter.
[5] However, on June 28, 2004, Mr. Condo received the assessment for decision regarding the PFV application which indicated that the PFV was being denied. On that date, the applicant Magas requested from the respondent his affidavit on the merits. The respondent indicated then that he would not be filing any such affidavit. It is to be noted that in any case, the respondent's deadline to do so had expired on June 9, 2004.
[6] Consequently, it is assumed that the applicant record for which an extension of time is hereby requested was due on or around July 19, 2004.
[7] Said record was served on August 16, 2004, therefore close to a month later.
[8] The applicant Magas summarized as follows, at paragraphs 17 and 18 of her affidavit in support of the motion at bar, the reasons underlying the delay incurred from the end of June 2004 to produce her record on the merit of the applicant's judicial review application:
17. Believing that the courtesy of consenting to an extension of time would not be withheld from me by Me Lafrenière; knowing that the parties would not suffer any prejudice from such a delay and being extremely busy on other matters that needed my immediate attention, I did not complete the Applicant's Record in due time.
18. I completed the factum for the within application on or about August 15, 2004 and the Applicant's Record was served on the Respndent on August 16, 2004.
The Law
[9] Mr. Justice Strayer of the Federal Court of Appeal, sitting as a judge ex officio of the Trial Division of the Federal Court on reconsideration of an earlier order, noted in Beilin et al. v. Minister of Employment and Immigration (1994), 88 F.T.R. 132 at 134, that in order to succeed on an application for an extension of time:
(...) [A]n applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case (see e.g. Grewal v. M.E.I., [1985] 2 F.C. 263, 63 N.R. 106 (F.C.A.)).
[10] In Chin v. Canada (Minister of Employment and Immigration) 1993, 22 Imm. L.R. (2d) 136, Madame Justice Reed made the following observations, at 138-39:
I think I should set out my approach to motions for extensions of time. I start with the premise that the time limits set out in the rules are meant to be complied with. If they are too short then requests should be made to have the rules amended so that the time limits are lengthened. I do not grant requests for extensions of time merely because it is the first time that counsel has asked or because the workload which counsel has assumed is too great. I think such decisions are unfair to those counsel who refuse clients because their work-load is too heavy to allow them to meet required deadlines or who "pull out all the stops" to meet the deadlines, at great inconvenience to themselves. As I have indicated I take the view that the time limits set out in the rules are meant to be complied with and they are meant to apply to everyone equally. If an automatic extension was meant to be available merely because counsel seeks one, then the rules should provide for such an automatic extension, for everyone, when such is sought.
On what grounds then do I grant an extension of time. I have already indicated that, in general, I am not receptive to requests which are based solely on the workload counsel has undertaken. When an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event.
There was no such unanticipated cause for the delay in the present case. At the time the leave application was filed, it was known that the time limit for the filing of the application was 30 days, counsel knew her client lived in Campbell River and that she would be attending the Bar Convention towards the end of August. The scheduling was under her personal control. Thus, it was hard for me to justify, in such circumstances, the granting of an extension of time.
Analysis
[11] I am of the view that the applicant Magas has not evidenced an acceptable justification for not having complied with the deadline within which to produce her record.
[12] Before June 28, 2004, she seems to have relied on the expectation of a positive answer from the respondent in order to advance her file.This risky attitude is not an acceptable justification.
[13] As for the period from June 28, 2004 onwards, the reasons put forth cannot be retained.
[14] As for her expectation that the respondent would consent to an extension of time, I believe that the applicant Magas should have secured such understanding in writing as early as possible in order to rely on that assumption.
[15] As for her being extremely busy on other matters, the workload of an applicant is no excuse as stated in Chin, supra. Moreover, such an excessive workload allegedly experienced by the applicant necessarily develops progressively. It must be assumed that this difficulty is foreseeable and thus controllable.
[16] In addition, on July 6, 2004, the applicant in this case has renewed before this Court her request for an expedite hearing of the merits in this case.
[17] As raised by the respondent, it does not sit well for someone to ask this Court for an expediting hearing date and, while waiting for the decision of the Court, not be able to comply with the prescribed deadline regarding the production of the applicant's record under rule 309.
[18] As the first element of the test laid down by Justice Strayer in Beilin, supra, paragraph [9], has not been met by the applicant, there is no need for me to evaluate the second element of that test, to wit, whether the applicant has shown that she possesses an arguable case.
[19] Finally, for greater certainty, I would like to add that had I applied here the principles laid down by the Court in Apv Canada Inc. v. Canada (Minister of National Revenue) (2001), 208 F.T.R. 81, at 88, I would also have denied the motion under study.
[20] Consequently, the motion at bar is dismissed, with costs.
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Richard Morneau
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Prothonotary
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Montréal, Quebec
September 13, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET NO.:
STYLE OF CAUSE:
T-819-04
DIANE MAGAS and RICHARD CONDO
Applicants
AND
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 30, 2004
REASONS FOR ORDER: RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS: September 13, 2004
APPEARANCES:
| DIANE MAGAS
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FOR THE APPLICANTS
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| ÉRIC LAFRENIÈRE
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FOR THE RESPONDENT
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| DIANE MAGAS
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FOR THE APPLICANTS
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| MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
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FOR THE RESPONDENT
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