[1] At issue in this proceeding is whether a Canada Food Inspection Agency Establishment Inspection Report, as to a meat packing plant (the "Report") may be subject to disclosure under the Access to Information Act (the "Act"). The Applicant opposes the release of the Report because, as I understand it, the request is for reports for federally-regulated slaughter houses which "... detailed violations or deviations from the Specified Risk Material ("SRM")... Policy, ...". The Applicant's position is that the Report does not deal with violations or deviations from the Specified Risk Material Policy.

[2] Given that this proceeding is subject to a confidentiality order and that there is both a public and a private file at the registry, I have considered whether these reasons fall within the scope of the confidential order: they do not. I would also add that Mr Justice Pelletier, as he then was, considered the area of confidentiality orders and reasons in Sierra Club of Canada v. Canada (Minister of Finance), [2000] 2 F.C. 423 (F.C.T.D.) at 425. He dealt with a matter which was heard in camera and in which the confidentiality order did not specifically address the question of the release of reasons. He wrote:

Confidentiality orders are designed to protect the confidential information of the parties. If the reasons contain no confidential information, there is no reason in principle why they cannot or should not be released.

This is consistent with the view of Mr Justice Rothstein, as he then was, in Sulco Industries Ltd. v. Jim Scharf Holdings Ltd. (1997), 69 C.P.R. (3d) 71 and 73 (F.C.T.D.), where he pointed out the courts do not operate in secret and that while there might be exceptions involving confidential information the courts should take a restrained approach in that regard. These Reasons may therefore be placed in the public file.

[3] At issue on this motion is whether there ought to be a time extension within which to cross-examine Mr Mark Bielby, a regional veterinary officer, who sets out in a brief affidavit the duties of a regional veterinary officer, including the preparation of Establishment Inspection Reports and what must be noted and the deficiencies which must be corrected.

[4] In this instance the time period for cross-examination of Mr Bielby ran out because counsel for the Applicant, who wrote to his client recommend that the cross-examination take place, did not realize that his letter requesting instructions had been "lost in dictation" until that cross-examination had expired.

CONSIDERATION

[5] Counsel both referred to the test for a time extension set out in Canada v. Hennelly (1999), 244 N.R. 399 (F.C.A.). Both referred to Grewal v. Canada (MEI) [1985] 2 F.C. 263 (F.C.A.), the overall objective in Grewal being, in all of the circumstances, whether doing justice between the parties calls for the grant of the time extension. I have also kept in mind what Madam Justice Appeal Sharlow pointed out in Bernier v. Minister of Human Resources Development, 2004 FCA 58, a 5 February 2004 decision, at paragraph 7, that " ... a failure to comply with the Rules need not be fatal if there is a reasonable and bona fide attempt to cure the failure, especially if the failure can be cured relatively easily and the other party has not suffered any substantial prejudice.".

[6] The test to be applied, from Hennelly (supra), is that the Applicant for extension must demonstrate:

1. a continuing intention to pursue his or her application;

2. that the application has some merit;

3. that no prejudice to the respondent arises from the delay; and

4. that a reasonable explanation for the delay exists.

(Page 400)

[7] As mandated by Grewal (supra), I should balance the elements in the four Hennelly categories with the idea that a weak position under one branch of the test may be carried by a strong position under another branch of the test with a view to achieving justice between the parties. While counsel for the Crown emphasizes that there is not a reasonable explanation for the delay, it is appropriate to consider all of the elements in order to go through the balancing exercise required by Grewal.

[8] Dealing first with a continuing intention to pursue the application, the factors there are substantial, notwithstanding an absence of clear dates as to when events happened. We know that counsel for the Applicant received the Respondent's affidavits 17 May 2004 and that one of his associates confirmed an intention to cross-examine by means of a voice mail message to Crown counsel on 14 June 2004. In between those dates I accept that counsel for the Applicant did dictate a letter to his client recommending cross-examination but that the letter became lost in dictation without counsel realizing it. Indeed counsel did not become aware of that letter had been lost until time for cross-examination under Rule 308, had run. That does not indicate any lapse in intention to pursue the application and would have run the time through until about 7 June 2004. That there was a gap of about one week between the realisation of the problem, getting fresh instructions from the client and communicating with Department of Justice, to then be advised that a motion would be required, is of no importance. The present sealed motion record was filed with the Court on 30 June 2004, again in a timely manner. As I say, there is substantial evidence of a continuing intention to pursue the application.

[9] As to the merit of the application, the evidence might be considered weak, for counsel has merely advised that there is merit to the application, just as there is merit to the requested cross-examination. However to be fair, to go further, one would have to judge the case itself, for at issue is whether a decision was made without jurisdiction, beyond jurisdiction, contrary to the procedure required by the Act and whether the document which the Respondent proposes to disclose actually falls into the description of documents requested. There are no allegations of injustice. I accept that there are no time sensitive elements which might inflict prejudice or injustice. This leads to the question whether there is a reasonable explanation for the delay.

[10] Counsel for the Respondent points out that the affidavit in support of the motion is on information and belief, sworn by a legal assistant. Affidavits on information and belief are allowed, on motion, pursuant to section 81(1) of the Federal Court Rules, 1998. In smaller firms this is almost a necessary concession, for a solicitor may not both depose to an affidavit and present written or oral argument on that affidavit, where the affidavit goes to the substance of the matter in issue. Moreover, the deponent of the present affidavit is a legal assistant: I would give a person with that status considerable deference as to understanding affidavits, including the necessity for veracity.

[11] The Respondent does make the point that there is an absence of dates as to when events occurred, between receiving the affidavit upon which Applicant now wishes to cross-examine and the receipt of instructions to cross-examine. It may be, as suggested by counsel for the Respondent, that counsel for the Applicant was not familiar with Federal Court time lines, but I am not certain as to the relevancy of that observation. As set out earlier in these Reasons I am satisfied that matters moved along at a reasonable pace.

[12] Counsel for the Respondents turns to case law on the inadvertence of counsel as an excuse, referring to a decision of Madam Justice Reed in Chin v. Canada (MEI) (1993), 69 F.T.R. 77 (F.C.T.D.) in which the Court rejected, as a reason for a delay, pressure of work. Madam Justice Reed looked for some reason for the delay beyond the control of counsel, an "unexpected or unanticipated event" (see pages 79 - 80). Counsel goes on to submit that the lost of a letter, in dictation, is not an unexpected or an unanticipated event, although I would suggest it can be a surprise or even a disaster. Counsel for the Respondents then points out that the Applicant has produced only three cases in which inadvertence of counsel has been held a reasonable excuse, noting that all three are decisions of prothonotaries.

[13] Prothonotaries, who essentially make a living assisting counsel with and deciding procedural matters for their clients, perhaps assume everyone else has a reasonable grasp of procedural law and tend to look at some basic aspects of procedural law as self-evident or trite.

[14] The law has advanced from the concept that client and counsel are one entity, counsel bringing the client down with counsel any time counsel makes a substantial error. As pointed out by Mr Justice Pigeon in [1979] 1 S.C.R. 511">Bowen v. City of Montreal, [1979] 1 S.C.R. 511 at 519, a party ought not be deprived of rights on account of an error of counsel if the error could be rectified without injustice. In [1979] 1 S.C.R. 511">Bowen counsel had erred and realizing the error, at the conclusion of trial, sought to amend the claim. This was denied by the trial judge and by the Court of Appeal. Mr Justice Pigeon, in commenting upon the amendment provisions in the Supreme Court Act, felt it would be contrary to fundamental principle that is at the root of section 50 of the Supreme Court Act to deny a party his relief by reason of an error by counsel and said:

This principle is that a party must not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such error without injustice to the opposing party.

(Page 519)

In the present instance, as I have pointed out, there is neither injustice nor prejudice in delayed cross-examination.

[15] Similarly, Mr Justice of Appeal Décary, in Merck & Co. v. Apotex Inc. (2003), 315 N.R. 175 (F.C.A.) at 193, referred to a passage from Lubrizol Corp. et al. v. Imperial Oil Ltd. et al., [1996] 3 F.C. 40 (F.C.A.) at 62:

"It is a long-standing principle that the object of courts is to decide the rights of the parties in litigation and not to punish for mistakes made in the conduct of a case unless the circumstances are exceptional. That principle was expressed in the following way by [1979] 1 S.C.R. 511">Bowen L.J. in Cropper v. Smith [(1884), 26 Ch. D. 700 (C.A.), at p. 710]:

"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy [...]"

(Merck & Co. v. Apotex Inc. at 193)

In this passage from Lubrizol Corp. Mr Justice of Appeal Décary has added the emphasis. Considering the Supreme Court and Federal Court of Appeal case law and applying it in the context of the present relatively insignificant error of counsel in losing a letter and thus missing, by a fairly narrow margin, a time limit in the Rules, points to a reason for the delay which is at least a reasonable and substantial reason.

CONCLUSION

[16] Even if one accepts that the evidence going to the merit of the case is weaker than the other three elements required by Hennelly, the balance is in favour of granting a time extension, for as the Supreme Court points out in [1979] 1 S.C.R. 511">Bowen (supra) a party ought not lose a right on account of an error of counsel and as the Court of Appeal points out in Merck & Co. v. Apotex Inc., the objective of the courts is to decide rights, not to punish for mistakes during the conduct of litigation, unless the circumstances are exceptional. In this instance the error is something which, inadvertently and without being noticed, could happen to any counsel.

[17] Concluding on the same note that Madam Justice Sharlow used in Bernier (supra), the breach here is not fatal to cross-examination on the affidavit of Mr Bielby, for there has been a reasonable and bona fide move to cure the failure, one that is relatively easy to resolve and is without any prejudice.

[18] Taking into account that summer holidays may interfere with cross-examination, time for cross-examination is extended until close of business on 10 September 2004. Time within which to serve and file the Applicant's record, both the public record and the confidential record, is extended until 30 days from the completion of cross-examination.

[19] Costs to the Applicant forthwith.

(Sgd.) "John A. Hargrave"

Prothonotary

Vancouver, British Columbia

10 August 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET: T-199-04

STYLE OF CAUSE: XL Foods Inc. v. Canadian Food Inspection Agency et al.

REASONS FOR ORDER BY: Hargrave P.

DATED: 10 August 2004

WRITTEN REPRESENTATIONS BY:

Brian Kaliel FOR APPLICANT

Tracy J King FOR RESPONDENTS

SOLICITORS ON THE RECORD:

Corbett Simth Bresee LLP FOR APPLICANT

Barristers & Solicitors

Edmonton, Alberta

Morris A Rosenberg FOR RESPONDENTS

Deputy Attorney General of Canada

Department of Justice

Edmonton, Alberta

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XL Foods Inc. v. Canada (Food Inspection Agency), 2004 FC 1098

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2004 FC 1098