Date: 20000307
Docket: T-530-96
BETWEEN:
MICHAEL O"SULLIVAN
Applicant
-and-
THE MINISTER OF ENVIRONMENT CANADA
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
[1] The Applicant has moved for an extension of time to serve and file the Applicant"s Record. The motion is opposed by the Respondent on the basis that the delay has not been adequately explained. The following are my reasons for order.
[2] The application for review pursuant to section 41 of the Access to Information Act was brought on March 5, 1996. The Applicant, who was unrepresented at the time, was advised almost immediately by the Respondent that the proceeding was untimely and that an extension of time to bring the application would have to be sought from the Court.
[3] Correspondence was exchanged between the Applicant and counsel for the Respondent between March 1996 and September 1997. Clearly frustrated by his dealings with the Respondent, the Applicant forwarded a letter to the Court seeking advice and direction. On October 9, 1997, he was advised by the Registry to bring a motion for directions and provide two clear days notice to the Respondent. However, no further procedural steps were taken by the Applicant until the issuance of a Notice of Status Review on March 4, 1999.
[4] On April 7, 1999, Mr. Sasso, counsel for the Applicant, filed written submission in response to status review on behalf of his client. He wrote that his law firm had recently been retained to represent the Applicant and to respond to the Notice of Status Review. Although Mr. Sasso"s retainer may have been recent, his involvement in the matter was not. A note on file indicates that a Registry officer spoke to Mr. Sasso (misspelled as "Faso") as early as January 20, 1998. Mr. Sasso indicated at the time that he would be seeking instructions from the Applicant regarding a motion for directions. On February 12, 1998, Mr. Sasso advised that a decision would be taken whether to pursue the application following the hearing of a related matter in the Ontario Court scheduled for March 13, 1998. Once again, no further action was taken until notice of status review issued in March 1999.
[5] In his written submissions in response to status review, the Applicant requested that the application not be dismissed as the application was delayed "due in part to the Applicant"s lack of familiarity with procedural matters before this Court". He urged the Court to "set mandatory time lines for the delivery of responding materials and any other steps to be taken prior to the hearing date". Without acknowledging that the application was untimely, the Applicant suggested that the Court could extend the time either before or after the expiration of the 45 day period under section 41 of the Access to Information Act and should do so in the circumstances.
[6] On May 3, 1999, the Associate Senior Prothonotary Peter A.K. Giles allowed the matter to continue as a specially managed proceeding. He also ordered the Applicant to bring a motion to extend the time for bringing the application by May 25, 1999 and directed that the time limits set out in Rules 306 to 314 apply to the proceeding thereafter.
[7] The Applicant"s motion to extend the time to bring the application was filed on July 5, 1999. The delay in doing so was due to an administrative error on the part of the Registry in communicating the Order of the Associate Senior Prothonotary to the parties. On July 6, 1999, upon noting the consent of the parties, Evans, J. (as he then was) granted the extension of time and ordered that the judicial review proceed in accordance with the following schedule:
| (a) The Applicant is to file any supplementary affidavit evidence within 30 days of the signing of this Order; and |
| (b) thereafter the time lines set pursuant to the Federal Court Rules are to apply. |
[8] The Applicant apparently elected not to file any supplementary affidavit material. On September 21, 1999, the Respondent"s affidavit material was filed. No further step was taken by the Applicant to move the proceeding along until January 5, 2000 when he requested that a case management conference be scheduled to "set out a schedule on the delivery of materials and to fix a date or the oral hearing".
[9] A case management conference was held on February 1, 2000 with counsel for the parties. At the commencement of the teleconference, counsel for the Applicant made an oral motion for an extension of time to file the "Applicant"s factum". Since the Applicant had not adduced any evidence to explain the delay in filing the Applicant"s Record, the Applicant was ordered to bring a motion for extension of time no later than February 14, 2000.
[10] Both parties filed affidavits in support of their respective positions, however no cross-examinations were conducted. Counsel for the Applicant candidly admits that both he and his client were mistaken as to the proper procedure to be followed. He goes on to say that the Respondent shares some of the blame for the "confusion". He submits that the Applicant has a good arguable case and that the Respondent has not been prejudiced by the delay. The Respondent responds that the Applicant has failed to adequately explain the delay and that the onus was on the Applicant to demonstrate that the Respondent will not be prejudiced by the granting of an extension of time, which he failed to do.
[11] In determining whether I should exercise my discretion to extend the time in the present case, I have taken guidance from the decision of Reed, J. in Chin v. Canada (Minister of Employment and Immigration), (1993) 69 F.T.R. 77 (T.D.) in which she wrote:
| [7] I think I should set out my approach to motions for extensions of time. I start with the premise that the time limits set out in the Rules are meant to be complied with. If they are too short then requests should be made to have the Rules amended so that the time limits are lengthened. I do not grant requests for extensions of time merely because it is the first time that counsel has asked or because the work load which counsel has assumed is too great. I think such decisions are unfair to those counsel who refuse clients because their work load is too heavy to allow them to meet required deadlines or who "pull out all the stops" to meet the deadlines, at great inconvenience to themselves. 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. |
| [8] On what grounds then do I grant an extension of time. I have already indicated that, in general, I am not receptive to requests which are based solely on the work load counsel has undertaken. When an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event. |
| [9] There was no such unanticipated cause for the delay in the present case. At the time the leave application was filed, it was known that the time limit for the filing of the application was 30 days, counsel knew her client lived in Campbell River and that she would be attending the Bar Convention towards the end of August. The scheduling was under her personal control. Thus, it was hard for me to justify, in such circumstances, the granting of an extension of time. |
| [10] I know that courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purposes are one. It is too easy a justification for noncompliance with the Rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced. I come back again to the question of fairness. It is unfair for some counsel to be proceeding on the basis that barring unforseen events the time limits must be met and for others to be assuming that all they need do is plead overwork, or some other controllable event, and they will be granted at least one extension of time. In the absence of an explicit rule providing for the latter I proceed on the basis that the former is what is required. |
[12] Parties to a proceeding are expected to comply with the time periods set out in the Rules unless they can satisfy the Court that an extension of time is warranted. Moreover, a defaulting party must be held to a higher standard when seeking an extension of a deadline imposed after their proceeding has survived status review.
[13] In my view, the explanation provided by the Applicant for the delay in filing the Applicant"s Record is wholly unsatisfactory.
[14] First of all, the Applicant himself requested that mandatory time limits be set by the Court. Both the order of the Associate Senior Prothonotary and that of Evans, J. requiring the parties to comply with the time lines set out in the Rules should not have come as a surprise. It was therefore incumbent upon the Applicant to strictly adhere to the court-ordered schedule.
[15] Secondly, the Applicant"s explanation that he believed that "the appropriate procedural steps had been taken" is inadmissible. The Rules dealing with applications are coherent and straightforward and set out in detail the procedural steps to be taken by the parties. The Applicant had earlier professed his lack of familiarity with procedural matters to excuse his lengthy delay up to status review. The same excuse is no longer available to him.
[16] Finally, there is no evidence, as suggested by the Applicant, that "confusion concerning the procedures to be followed under this case managed process (should be) shared by the Respondent"s counsel". The requirement on the Respondent under Rule 310 to file the Respondent"s Record is contingent on service of the Applicant"s Record. Since the Applicant did not comply with Rule 309, the Respondent"s obligation was nver triggered.
[17] The overriding principle in applications for extension of time is that justice be done. In the present case, justice requires that the Applicant be held to the strict time limits imposed by the Court absent unforeseen circumstances, which have not been established. I therefore conclude that this motion should be dismissed.
[18] The filing of the Applicant"s Record under Rule 309 is an integral procedural step. In the absence of any records from the parties, the application cannot possibly move forward. As a result, the application will also be dismissed.
[19] Rule 410 provides that the costs of a motion for an extension of time should be borne by the party bringing the motion unless otherwise ordered by the Court. The Respondent has been successful in opposing the motion and costs should therefore follow the event.
IT IS HEREBY ORDERED THAT:
[20] The motion for extension of time to file the Applicant"s Record is dismissed.
[21] The application is dismissed.
[22] Costs of this motion and the application shall be payable by the Applicant to the Respondent.
"Roger R. Lafrenière"
Prothonotary
TORONTO, ONTARIO
March 7, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MICHAEL O"SULLIVAN |
| THE MINISTER OF ENVIRONMENT |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: TUESDAY, MARCH 7, 2000
SOLICITORS OF RECORD: McMillan Binch
Barristers & Solicitors
Suite 3800, South Tower
Royal Bank Plaza
Toronto, Ontario
M5J 2J7
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000307
Docket: T-530-96
Between:
Applicant
- and -
| THE MINISTER OF ENVIRONMENT CANADA |
Respondent
AND ORDER
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