Date: 20011206
Docket: T-806-01
Neutral Citation: 2001 FCT
1340
BETWEEN:
FAITH
S. BRADLEY-SHARPE
Applicant
and
THE
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
and
THE
ROYAL BANK OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS
J.
[1]
This is a motion brought by Ms. Faith Bradley-Sharpe pursuant to Rules
392(2) and 399(2) of the Federal Court Rules, [hereinafter referred to
as the “Rules”].
[2]
Rule 392(2) of the Rules reads:
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392.(2) Unless it provides
otherwise, an order is effective from the time that it endorsed in writing
and signed by the presiding judge or prothonotary or, in the case of an order
given orally from the bench in circumstances that render it impracticable to
endorse a written copy of the order, at the time it is made.
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(2) Sauf disposition
contraire de l'ordonnance, celle‑ci prend effet au moment où elle est
consignée et signée par le juge ou le protonotaire qui préside ou, dans le
cas d'une ordonnance rendue oralement en audience publique dans des
circonstances telles qu'il est en pratique impossible de la consigner, au
moment où elle est rendue.
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[3]
Rule 399(2) of the Rules reads:
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399.(2) On motion, the Court
may set aside or vary an order
(a) by reason of a matter
that arose or was discovered subsequent to the making of the order; or
(b) where the order was
obtained by fraud.
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(2) La Cour peut, sur
requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas
suivants :
(a) des faits nouveaux sont
survenus ou ont été découverts après que l'ordonnance a été rendue;
(b) l'ordonnance a été
obtenue par fraude.
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[4]
In D. Sgayias et al., Federal Court Practice 2000 (Toronto:
Carswell, 2001) at page 756, the note under Rule 399 reads as follows:
Rule 399
permits the Court to set aside or vary an order in three situations:
- where the order was made in the absence
of another party;
- where a new matter has arisen; and
- where the order was obtained by way of
fraud.
[5]
The self-representing applicant, Ms. Bradley-Sharpe, brings this motion
for the purpose of having the order of Mr. Justice Denault dated August 22,
2001 set aside.
[6]
Mr. Justice Denault’s order, now being contested by Ms. Bradley-Sharpe,
granted the following in favour of the respondent Royal Bank of Canada:
The Respondent
is granted 15 days from the date of the Respondent’s receipt of the Canadian
Human Rights Commission’s materials to file the Respondent’s Affidavit.
FINALITY OF AN ORDER
[7]
It is important to note that the policy of the law strongly favours
finality of court orders, this is to ensure the certainty of the transactions
in issue and the integrity of the judicial process as per Nu-Pharm Inc.
v. Canada (Attorney General), [2000] 1 F.C. 463 (F.C.A.) and Zolfiqar
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
1790 (F.C.T.D.). This is also confirmed by the applicant, herself, when she
writes at page 4 of her motion record:
[...] the
courts have been reluctant, in past, to vary an order or a judgment because of
its finality [...]
[8]
In addition, any application brought to set aside a judgment is
exceptional and must be brought with due diligence as per Moutisheva v. Canada
(Minister of Employment and Immigration), [1993] A.C.F. No. 988.
[9]
Furthermore, in Zenca Pharma Inc. v. Canada (Minister of
National Health and Welfare)(2000), 196 D.L.R. (4th) 299 (F.C.A.), Strayer
J.A. held:
[para 6 ]
[...] Rule 399 cannot be used as a vehicle for revisiting judgments every time
a change occurs in the facts.
[10]
The applicant relies upon the case of Annacis Auto Terminals (1997)
Ltd. v. Cali (The), [1999] F.C.J. No. 1579 (F.C.T.D.), where
Prothonotary Hargrave outlined the stringent three-fold test that must be
satisfied for an order to be varied or set aside:
[para 20]
[...] Although the Rule 399 provides an exception, a moving party must meet a
stringent test in order to vary an order or to set it aside. The test is
three-fold: First, there must be new matter arising or discovered subsequent to
the order; second, the moving party must establish that it could not with
reasonable diligence have discovered the new matter sooner; and third, that if
the new matter had initially been brought forward it would probably have
resulted in a different original order: see Re Saywack v. Canada
(M.E.I.), [1986] 3 F.C. 189 (F.C.A.), at page 201 and following, approving Dumble
v. Cobourg and Peterbrough R.W. Co. (1881), 29 Gr. 121 (Ont. Ch.) and Canada
v. Palmier (1998), 137 F.T.R. 71 at 73.
[11]
The applicant has divided her motion record into three (3) parts as per the
test outlined above. However, the applicant’s arguments are unclear and
difficult to grasp. If the applicant relies upon 399(2)(a) of the Rules, it
requires there to be the presence of a new matter. If however she relies on
399(2)(b) of the Rules, it requires there to be a clear allegation of fraud.
[12]
In my view, the applicant refers to the correct test, as set out in Annacis,
supra, for varying or setting aside an order under Rule 399(2)(a)
of the Rules, however fails to show any “new matter arising or discovered
subsequent to the order” in the present circumstances. It seems that the
applicant has amassed too many differing issues and has tried to fit them all
into the branches of the required test. This is simply not acceptable and not
sufficient to meet the test.
[13]
I find that the purpose of this motion is confused. It fails to show
any reason as to why the order of Mr. Justice Denault should be overturned.
Seeing as an application to set aside a judgment is a very serious issue that
requires exceptional circumstances.
O
R D E R
[14]
Therefore, this motion is dismissed.
Pierre
Blais
Judge
OTTAWA, ONTARIO
December 6, 2001
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