Smith v. Canada (National Defence), 2005 FC 1052

Date: 20050729

Docket: T-623-05

Citation: 2005 FC 1052

Montréal, Quebec, July 29, 2005

Present:           RICHARD MORNEAU, PROTHONOTARY

BETWEEN:

                                                                SERGE SMITH

                                                                                                                                            Applicant

                                                                           and

                                                          NATIONAL DEFENCE

                                                                                                                                        Respondent

Written motion by the applicant, Serge Smith, to have this Court extend the deadline prescribed in section 306 of the Federal Courts Rules for filing his affidavit and related documentary exhibits.

                                            REASONS FOR ORDER AND ORDER

[1]                Although a strict application of the criteria developed by the Federal Court of Appeal in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 could result in this Court's dismissing the motion for a number of reasons, including that the affidavit submitted did not expand on the grounds briefly stated in the notice of application in support of the extension and that the applicant's motion record does not contain a section composed of written submissions as such, the fact remains that the respondent was served with the applicant's affidavit and accompanying exhibits within, or very close to, the time limit agreed on by the parties for such service. In principle, therefore, the only problem lies with the filing of the aforementioned affidavit. Furthermore, it appears that the respondent was in no way prejudiced by the failure to file the affidavit, as it managed to file its own affidavit opposing the merits of the applicant's application for judicial review within the time limit set out in the Rules.

[2]                The applicant's motion is accordingly granted, with costs of $75 for the respondent.

[3]                The applicant is therefore authorized to file, within three (3) days of these Reasons for Order and Order, the affidavit and accompanying documents that were served on the respondent on May 27, 2005, which service is hereby declared effective.

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-623-05

SERGE SMITH

                                                                      Applicant

and

NATIONAL DEFENCE

                                                                  Respondent

MOTION IN WRITING CONSIDERED AT MONTRÉAL WITHOUT APPEARANCE OF THE PARTIES

REASONS FOR ORDER:                           RICHARD MORNEAU, PROTHONOTARY

DATED:                                                         July 29, 2005

WRITTEN SUBMISSIONS BY:

SOLICITORS OF RECORD: