Duterville v. Canada, 2001 FCT 100

                                                                                                                                            Date: 20010220

                                                                                                                                             Docket: 01-T-9

                                                                                                                Neutral citation: 2001 FCT 100

BETWEEN:

                                                             ALBERT DUTERVILLE

                                                                                                                                                          Plaintiff

                                                                              - and -

HER MAJESTY THE QUEEN

and

Attorney General of Canada

and

Commissioner of Correctional Services Canada

and

Deputy Commissioner of Correctional Services Canada

                                                                                                                                                    Defendants

                                               REASONS FOR ORDER AND ORDER

BLAIS J.

[1]         On January 26, 2001 the plaintiff filed a motion to extend the deadline specified in s. 18.1(2) of the Federal Court Act for filing an application for judicial review of two decisions by the Warden of the Drummondville Institution.

[2]         The first decision in question concerned the placement of the plaintiff in involuntary segregation on November 2, 1997.

[3]         The second decision was to proceed with the transfer of the plaintiff to the Port-Cartier Institution, a decision taken by the Warden of the Institution on December 10, 1997 and approved by the Director of the Regional Reception Centre on January 5, 1998.

[4]         The plaintiff had first filed his motion to be heard orally at Québec on February 16, 2001.

[5]         As the plaintiff had failed to file a motion pursuant to s. 45 for an order requiring the attendance of a detainee, he was not present in court on February 16, 2001.

[6]         However, the plaintiff requested in writing, by a letter dated February 15, 2001 and sent by fax to the Federal Court Registry in Québec, that the application for an extension of time to be made in the Federal Court on February 16, 2001 be heard without a personal appearance pursuant to Rule 369.

[7]         It would appear that it was not possible to contact counsel for the defendants, Éric Bernatchez, and the latter appeared in Court on the morning of February 16, 2001.

[8]         As Mr. Bernatchez agreed that the application for an extension of time should be considered without a personal appearance pursuant to Rule 369, the Court agreed to examine the application for an extension of time based on the record.

[9]         The Court examined the affidavits submitted in support of the motion and also considered the reply record of the Attorney General of Canada on behalf of the defendants.

[10]       As this was a motion for an extension of time the courts have clearly held that the plaintiff must give the Court a reasonable explanation to justify the lapse of time.

[11]       In the case at bar the two disputed decisions should first have been challenged by two separate motions for judicial review: nevertheless, the two decisions are contemporary and were made over three years ago.

[12]       The plaintiff must accordingly establish that he was at all times unable to file his application for judicial review within the prescribed deadlines, and further persuade the Court that he had a serious issue to be tried to justify granting the deadline extension.

[13]       On the record before the Court, the plaintiff did not challenge the decision of the Warden of the Drummondville Institution to proceed to raise his security rating, a decision rendered on December 10, 1997, which finally resulted in his transfer.

[14]       Further, the plaintiff filed no grievance regarding the decision to proceed with his segregation, made on November 2, 1997.

[15]       The explanations offered by the plaintiff for the delay did not persuade the Court that he had a reasonable explanation of his inability to file an application for judicial review within the specified

deadline.

[16]       At some points, he alleged that all his documents had been seized, yet he was in a position to provide a copy of his exchange of correspondence with the Federal Court Registry.

[17]       Additionally, the plaintiff also submitted no draft of what his application for judicial review should be and the points he intended to challenge. As no serious issue to be tried was submitted to the Court, I conclude that the plaintiff was unable to persuade me that he had any chance of success.

[18]       For all these reasons, the application for an extension of time is dismissed.

[19]       The whole with costs.

OTTAWA, ONTARIO

February 20, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                                  01-T-9

STYLE OF CAUSE:                                                     Albert Duterville

v.

Her Majesty the Queen et al.

WRITTEN MOTION CONSIDERED WITHOUT APPEARANCE BY PARTIES

REASONS FOR ORDER and ORDER BY:           BLAIS J.

DATED:                                                                           February 20, 2001

WRITTEN SUBMISSIONS BY:

Albert Duterville                                                                PLAINTIFF FOR HIMSELF

Éric Bernatchez                                                                 FOR THE DEFENDANTS

SOLICITORS OF RECORD:

Morris Rosenberg                                                              FOR THE DEFENDANTS

Deputy Attorney General of Canada

Ottawa, Ontario