Pezzente v. Rogers Communications Inc., 2004 FC 813

Date: 20040607

Docket: T-597-04

Citation: 2004 FC 813

BETWEEN:

                                                   MARIA ASSUNTA PEZZENTE

                                                                                                                                            Applicant

                                                                           and

                                             ROGERS COMMUNICATIONS INC.

                                                    SHAW CABLESYSTEMS G.P.

                                                             and MEL TUGADE

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

HARGRAVE P.

[1]                The Applicant, who acts for herself, properly served the Notice of Application for judicial review in this matter on Shaw Cablesystems G.P. ("Shaw") on 2 April 2004: see the affidavit of service of 15 April 2004 and the written submission filed on behalf of Shaw on 13 May 2004.

[2]                Shaw now applies in writing for an extension of time within which to file a Notice of Appearance. Shaw's motion contains no grounds for the extension. The motion record contains no supporting affidavit. The exceedingly brief written submissions, paraphrased, acknowledge that the Notice of Application was served on the 2^nd of April 2004 and then go on to set out that the law firm on which the application was served then sought instructions, there being some delay in obtaining those instructions, further complicated because one of the lawyers involved was out of the country and that "Further delays were caused by clerical errors in the production and filing of the Motion Record and Notice of Motion requesting an extension to file the Appearance.".

[3]                Nothing in the material of Shaw in any way deals with the requirements for an extension of time, such as those set out in Canada v. Hennelly (1999) 244 N.R. 399 (F.C.A.) at page 400. Nothing in the material touches upon a continuing intention to oppose the application. Nothing establishes any merit on the part of Shaw in opposing the application for judicial review. There is in all probability no real prejudice, for the time for filing the Notice of Appearance ran out on 12 April, with the present motion being filed 13 May. However there is no properly offered explanation for the delay itself.

[4]                In response Mr. Pezzente makes a number of cogent points. First, she questions the statement in the written argument of Shaw's counsel as to the delay in obtaining instructions and observes that " ... once you are aware and advised of a document, if there was a delay in instructions or miscommunication between Heenan Blaikey and the Respondents, that is no one else's concern ...".

[5]                Ms. Pezzente goes on to state, referring to the filing time requirement for a Notice of Appearance, the 10-day deadline:

... is the Courts Rules and should be taken seriously and upheld. The Respondents had plenty of time to file a Notice of Appearance. This is obviously not a priority and not taken seriously by the Respondents.

[Paragraph 5 of the affidavit of Ms. Pezzente filed 17 May 2004]

and

There are no reasons why the Respondents should not also follow and abide by the rules and deadlines. There is no legitimate reason for the delay, just simply bad excuses, and I feel that these unremitting delays should not occur and is responsible [sic] of the Respondents.    

                                                                                                                  [Ibid. paragraph 6]

[6]                Ms. Pezzente then submits that the fact that a lawyer for Shaw was out of the country for four days should not make a difference "... because he should have made sure that someone was taking care of important mail and should be able to be contacted for further instructions." (Ibid paragraph 8). Ms. Pezzente then makes a very direct point: "There is also no proof of this". This observation is quite correct.

[7]                There follows the submission that:

There are reasons why the Court issues deadlines and they should be respected and followed by everyone involved in the process. Respondents do not have any respect or consideration for time, Court rules and regulations, and for everyone else involved. I have to follow the deadlines and abide by the rules like everyone else, and the Respondents should respect the law and Courts deadlines just like everyone else. I am in opposition of the support of the motion of Shaw Cablesystems G.P. for an order to extend the time that it has to file its Notice of Appearance and to concurrently direct the Court Registry Office to not accept such Notice.

                                                                                                                [Ibid, paragraph 11]

This is a solid and on-point submission in the plain language of a lay person. Madam Justice Reed expressed a parallel view in Chin v. MEI (1993) 69 F.T.R. 77 at 79-80:

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.

Key here is that the Rules apply to all who participate in litigation and that time extensions are not automatic.

[8]                Rule 305, which requires a party opposing a judicial review application to file an appearance, is a pivotal rule which should be taken seriously. Mr. Justice of Appeal Stone had this to say in Society of Composers, Authors and Music Publishers v. Canadian Association of Internet Providers (2001) 267 N.R. 82 at 86:

As I see it, Rule 305 was intended to play a pivotal role in the overall scheme and operation of the Part 5 rules. That Rule requires a named respondent to signify by way of a notice of appearance an intention "to oppose an application". This step allows the parties and the Court to know at an early stage which of the named respondents will truly oppose the section 28 application. The service and filing of the notice of appearance ensure that any respondent truly opposed to the application will be served with all further documents in the proceeding and so enable effective participation. As I have already stated, if no notice of appearance is filed, Rule 145(a) disentitles a named respondent from being served with any further documents in the section 28 proceeding.

This passage indicates not only the importance of filing a Notice of Appearance, but also, by implication, of making a proper application for an extension of time within which to file an overdue Notice of Appearance.

[9]                Counsel for Shaw seems not to have taken the preparation of the motion material for an extension of time seriously. In a companion motion, for an extension of time sought on behalf of Rogers Communications Inc., another counsel has taken a proper, reasoned and supported approach, obtaining a very different result.

[10]            On the material presented it would be manifestly improper and unjust to grant an extension of time to Shaw for filing a Notice of Appearance. The motion is denied.

[11]            In that Ms. Pezzente acts for herself, it would not be usual to award her costs. Indeed, while she does a competent job of opposing the application, she does not specifically seek costs. I have, however, considered whether I ought to award a sum in lieu of costs on the basis of an abuse of process by Shaw. I am not certain that the oversights, in Shaw's material, go that far: rather, from the material, counsel seems to take for granted that an extension of time will automatically issue and that is merely a wrong view of the law and procedure bearing on time extensions.

(Sgd.) "John A. Hargrave"

     Prothonotary

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-597-04

STYLE OF CAUSE:                                       Maria Assunta Pezzente v. Rogers                    Communications Inc. Et al.

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                  Mr. John A. Hargrave, Prothonotary

DATED:                                                          June 7, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: