Tucker v. Canada, docket T-387-96

Date: 20000518

Docket: T-387-96

Ottawa, Ontario, this 18th day of May, 2000

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE

BETWEEN:

REVEREND BROTHER WALTER A. TUCKER

Plaintiff

- and -

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER AND ORDER

O"KEEFE J.

[1]      This is a motion by the plaintiff for an Order extending the time in which he may appeal to the Federal Court of Appeal, the Order of Madame Justice Sharlow dated December 2, 1999. Madame Justice Sharlow dismissed the plaintiff"s appeal from an Order of Prothonotary Lafrenière. Prothonotary Lafrenière had, on August 16, 1999, dismissed the plaintiff"s action as a result of the plaintiff"s failure to comply with directions given at a status hearing.

[2]      The plaintiff also seeks:

2.      In the alternative, a Binding Declaration of Right issue declaring the procedural framework of Section 27.(2) (b) of the Federal Court Act unconstitutional.

3.      An Order issue reimbursing the Plaintiffs [sic] the $20.00 costs of filing this motion and directing the Registrar issue the Notice of Appeal herein, dated January 31st 2000 in the Federal Court of Appeal without cost or filing charges in forma pauperis.

[3]      The originating document in this matter was filed by the plaintiff on February 19,

1996. It was an action for the return of money and property seized by the R.C.M.P.

[4]      On February 4, 1999, Justice Blais of this Court issued a Notice of Status Review

pursuant to Rule 381 of the Federal Court Rules, 1998.

[5]      The Notice of Status Review stated:

The Plaintiff is required to show cause by written submissions, to be served no later than Monday, March 8, 1999, why this action should not be dismissed for delay.

[6]      According to the decision of Sharlow J. at paragraph 5, the following resulted:

[5] On April 21, 1999, the Plaintiff filed a notice of motion requesting an extension of time for responding to the notice of status review and also seeking alternative relief. The alternatives sought were (1) an order permitting the late filing of a reply, (2) an order that this proceeding be allowed to continue as a specially managed proceeding, and (3) an order that this proceeding be joined to the proceedings in Court File No. T-1805-98 (an action commenced in September 16, 1998 for a declaration that the Controlled Drugs and Substances Act are unconstitutional in so far as they pertain to cannabis, marijuana and other substances).

[6] In response to that motion, the Prothonotary issued an order extending to July 15, 1999 the time for filing submissions. He specifically directed the Plaintiff to answer these questions:

1. What steps have been taken by the Plaintiff since the issuance of the originating document on February 19, 1996?

2. What are the reasons the proceeding has not moved faster?

3. What steps is the Plaintiff now proposing to move the matter forward?

[7] The Plaintiff"s submissions were filed on July 9, 1999. The Prothonotary reviewed the submissions and concluded that except for the filing of a change of address and the motion filed on April 21, 1999 in response to the notice of status review, the Plaintiff had taken no steps in this proceeding and had offered no explanation for the delay. On that basis, he dismissed the action for delay. Before me is the Plaintiff"s appeal of that order.

[7]      As stated earlier, Madame Justice Sharlow dismissed the plaintiff"s appeal from

this Order. After the plaintiff received the decision of Madame Justice Sharlow, Reverend Brother Michael J. Baldasaro set aside time in December to draft and complete the Notice of Appeal to Madame Justice Sharlow"s decision within the 30 day time limit on behalf of the plaintiff. Reverend Brother Michael J. Baldasaro became ill on December 26, 1999 and was unable to complete the Notice of Appeal.

[8]      When Reverend Brother Michael J. Baldasaro recovered somewhat from the flu

on January 10, 2000, he read the Federal Court Rules and thought that the Christmas recess applied so as to have the time for filing the Notice of Appeal extended. He had the Notice of Appeal ready for filing on January 18, 2000 and on that date, he contacted the Registry of the Court and found out that he would be required to make a motion for an extension of time to file the appeal as the Christmas recess did not act so to extend the time for filing the Notice of Appeal.

[9]      The plaintiff, Reverend Brother Walter A. Tucker also stated in his affidavit, that

he is a pauper and a disabled person subsisting upon a Government of Canada Old Age Pension Allowance.

[10]      The plaintiff"s grounds of appeal are:

1.      The Learned Justice erred in fact and in law by ruling that the Appellant had offered no explanation for the delay in filing contrary to the Submissions in the Notice of Motion dated April 20, 1999; the Affidavit of Reverend Brother Michael J. Baldasaro Affirmed April 21, 1999; the Notice of Motion dated August 26^th 1999 and Affidavit of Reverend Brother Michael J. Baldasaro Affirmed April 21^st 1999, and the Plaintiff"s Written Submissions dated July 8^th 1999.

2.      The Learned Justice erred in fact and in law by allowing a Status Review Hearing to block an Action in which all necessary documents had already been filed and was being obstructed by the Attorney General of Canada and the R.C.M.P. via the imprisonment and denials of bail and a bail hearing for 30 days of Reverend Brother Michael J. Baldasaro which through intimidation and lost time in jail caused the interruption of this action.

3.      The Learned Justice erred in fact and in law by not allowing the benefit of doubt in the Appellants [sic] favor [sic] when there was no evidence to the contrary that the Appellant"s declared impecuniousity [sic] and actions against the Appellant and Reverend Brother Michael J. Baldasaro caused the inability to bring the matter to trial before the issuance of Status Review.

4.      The Learned Justice erred in fact and in law at para [sic] 16 of her order by ruling that the Plaintiff"s resources were enough to launch a coherent response in an effort to avoid dismissal for delay with no regard to the materials before the court.

5.      Rule 380 of the Federal Court Rules regards Status Review Proceedings is incomplete and insufficient regards its application within these proceedings. It is unconstitutional and illegal as it dismisses an Applicants [sic] claim without hearing or allowing for any evidence and cross-examination and fails to provide for an oral hearing. Note: All materials necessary to the hearing of this case are filed with the court and it would take 1 to 2 hours of court time to prove the claim.

6.      The order of the Learned Justice caused the Appellant to be over-reached and over-matched. The order denies the Appellant simple justice and access to the Court to redress a wrong. The order is unfair and biased as evidenced by the Learned Justices" illegal summary dismissal of the Action and constitutional claims therein without hearing evidence and the fact that no effort was made to simplify matters and help the Appellant notwithstanding Rule 384 of the Federal Court Rules which provides for help via case management when help is sought.

7.      The order of the Learned Justice and the treatment of the Appellant and Reverend Brother Michael J. Baldasaro by the Court, The Attorney General and the R.C.M.P. brings the administration of justice into disrepute and is a violation, infringement and denial of the provisions of Sections 1., 7., 15.(1), 24.(1), 52.(1) and others of the Canadian Charter of Rights and Freedoms and a denial of the principles of fundamental justice.

8.      By not recognizing the Plaintiff"s right to a hearing under Section 24.(1) of the Charter the Learned Justice erred in fact and law by dismissing it which constitutes a direct infringement, violation and denial of the Provisions of Section 24.(1) of the Canadian Charter of Rights and Freedoms and the principles of fundamental natural justice.

9.      The Status Review Proceeding Rules came into effect after the Action was commenced. The Court and Crown know full well that the Appellant and Reverend Baldasaro have fought off at least 2 attacks against them in 1999 via the Crown"s Motion to dismiss in Action No. T-1805-98 which the Crown lost. This takes up time and resources. If the Court would take the time to talk to us and grant us an oral hearing as we asked, (which is not addressed by the Judge), the Court would learn that Reverend Baldasaro is on a disability pension as was the Appellant pending Government Old Age Pension. The court would then hear further testimony and other witnesses to prove that the crown is engaged in a multiplicity of legal proceedings and procedural nullities which has caused us undue expense and delay. Witness: Crown"s two motions to dismiss our case concerning Church Sacrament, Marijuana in Court File No. T-1805-98 . The Crown"s first Motion was dismissed by the order of Mr. Peter A.K. Giles and the second Crown Motion to dismiss our Action for want of jurisdiction was dismissed by Madam Justice Sharlow on December 13^th 1999. The Court should force the Crown to prove otherwise. The Court and Crown know of the many matters in which we are engaged in the Trial and Appeal Division of the Federal Court, and of our perils, disability and impecuniousity [sic], and that we represent ourselves.

10.      For the Court to pretend we are on an equal footing with the Crown in these proceedings indicates bias and unfairness towards us. To dismiss a constitutional claim without hearing evidence and giving everyone an opportunity to make full answer and defence is frightening, repellent and disgusting and brings the administration of justice into disrepute well beyond a shadow of any doubt.

Issues

[11]      1.      Should an Order be granted to extend the time for a Notice of Appeal?

28. .      Should a binding declaration of right issue declaring the procedural framework of paragraph 27(2)(b) of the Federal Court Act unconstitutional?
29.      3.      Should an Order issue reimbursing the plaintiff the $20.00 costs of filing this motion and directing the Registrar issue the Notice of Appeal herein, dated January 31, 2000 in the Federal Court of Appeal without cost or filing charges in forma pauperis?
31.     

[12]      Should an Order be granted to extend the time for a Notice of Appeal?

     Appeals to the Federal Court of Appeal are governed by section 27 of the Federal Court Act which states:

27. (1) Appeals from Trial Division - An appeal lies to the Federal Court of Appeal from any (a) final judgment, (b) judgment on a question of law determined before trial, (c) interlocutory judgment, or (d) determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada, of the Trial Division. (1.1) Appeals from Tax Court of Canada - An appeal lies to the Federal Court of Appeal from (a) a final judgment, (b) a judgment on a question of law determined before trial, or (c) an interlocutory judgment or order of the Tax Court of Canada, other than one in respect of which section 18, 18.29, 18.3 or 18.3001 of the Tax Court of Canada Act applies.

27(1) Appels des jugements de la Section de première instance - Il peut être interjeté appel, devant la Cour d'appel fédérale, des décisions suivantes de la Section de première instance_: a) jugement définitif; b) jugement sur une question de droit rendu avant l'instruction; c) jugement interlocutoire; d) jugement sur un renvoi d'un office fédéral ou du procureur général du Canada. (1.1) Appels des jugements de la Cour canadienne de l'impôt - Sauf s'il s'agit d'une décision portant sur un appel visé aux articles 18, 18.29, 18.3 ou 18.3001 de la Loi sur la Cour canadienne de l'impôt, il peut être interjeté appel, devant la Cour d'appel fédérale, des décisions suivantes de la Cour canadienne de l'impôt_: a) jugement définitif; b) jugement sur une question de droit rendu avant l'instruction; c) jugement ou ordonnance interlocutoire.

[13]      In particular, subsection 27(2) states the limitation periods for filing an appeal and

provides for the jurisdiction of the Trial Division to adjudicate requests to extend the stated limitation periods:

27(2) Notice of appeal " An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Court (a) in the case of an interlocutory judgment, within ten days, and (b) in any other case, within thirty days, in the calculation of which July and August shall be excluded, after the pronouncement of the judgment or determination appealed from or within such further time as the Trial Division or the Tax Court of Canada, as the case may be, may, either before or after the expiration of those ten or thirty days, as the case may be, fix or allow. 27(3) Service " All parties directly affected by an appeal under this section shall be served forthwith with a true copy of the notice of appeal and evidence of service thereof shall be filed in the Registry of the Court. 27(4) Final judgment " For the purposes of this section, a final judgment includes a judgment that determines a substantive right except as to any question to be determined by a referee pursuant to the judgment.

27(2) Avis d'appel " L'appel interjeté dans le cadre du présent article est formé par le dépôt d'un avis au greffe de la Cour, dans le délai imparti à compter du prononcé du jugement en cause ou dans le délai supplémentaire que la Section de première instance ou la Cour canadienne de l'impôt, selon le cas, peut, soit avant soit après l'expiration de celui-ci, fixer ou accorder. Le délai imparti est de_: a) dix jours, dans le cas d'un jugement interlocutoire; b) trente jours, compte non tenu de juillet et août, dans le cas des autres jugements. 27(3) Signification " L'appel est signifié sans délai à toutes les parties directement concernées par une copie certifiée conforme de l'avis. La preuve de la signification doit être déposée au greffe de la Cour. 27(4) Jugement définitif " Pour l'application du présent article, est assimilé au jugement définitif le jugement qui statue au fond sur un droit, à l'exception des questions renvoyées à l'arbitrage par le jugement.

[14]      To put the matter in perspective, reference should also be made to Rule 2 (Federal

Court Rules, 1998):

"Christmas recess" means the period beginning on December 21 in a year and ending on January 7 in the following year.

"_vacances judiciaires de Noël_" La période commençant le 21 décembre et se terminant le 7 janvier suivant.

and to Rule 6(3) of the Federal Court Rules, supra:

6(3) Unless otherwise directed by the Court, a day that falls within the Christmas recess shall not be included in the computation of time under these Rules for filing, amending or serving a document.

6(3) Sauf directives contraires de la Cour, les vacances judiciaires de Noël n'entrent pas dans le calcul des délais applicables selon les présentes règles au dépôt, à la modification ou à la signification d'un document.

[15]      The plaintiff had believed that the time period contained in the Christmas recess

would not count as time in which to file the appeal. However, it has now been settled by this Court that days falling within the Christmas recess period are only excluded when computing time for taking steps under the Rules and not under the Federal Court Act where the time for filing an appeal to the Court of Appeal is set out. Thus, the necessity for the plaintiff"s motion to extend the time for filing the Notice of Appeal.

[16]      The Courts have consistently held that before an extension of time in which to file

an appeal can be granted, certain conditions must be satisfied. These principles were succinctly summarized in Sim v. Canada (February 27, 1996), Docket T-664-95 by Prothonotary Hargrave at page 3 of the judgment:

33. .      Whether the appeal itself has merit; there must be arguable issues to put before the Court of Appeal;
35. 2.      The special circumstances showing or explaining why the appeal was not brought within the required time;
37. 3.      The intention of the Plaintiff to appeal existed before the time for appeal ran out;
39. 4.      Whether the delay has been excessive;
41. 5.      Whether the Crown will be prejudiced by an extension of time within which to appeal; and
43. 6.      Whether it is in the interests of justice to grant the time extension [See Note 2 below].
    
44.      Note 2: These factors were used by Madame Justice Simpson in Karon Resources v. MNR (1993) 71 F.T.R. 232.
    
    
    

Merit

[17]      The grounds of appeal alleged in the plaintiff"s Notice of Appeal are in essence,

the issues that will be before the Court of Appeal if an extension of time to grant the appeal is granted. Do any of these grounds raise arguable issues to be dealt with by the Court of Appeal?

[18]      Ground number 1 deals with the fact that the plaintiff states that he offered an

explanation for the delay in the matter proceeding. He claims he did this in a notice of motion dated April 20, 1999, and annexed affidavit and the plaintiff"s written submissions dated July 8, 1999. I have reviewed these documents and in my opinion, they do not satisfactorily explain the delay up until February 4, 1999 when the Notice of Status Review was issued. There is no arguable issue on this ground.

[19]      There is no arguable issue raised in ground number 2 as the Rules provide for a

Notice of Status Review.

[20]      Grounds 3 and 4 of the Notice of Appeal do not raise an arguable issue for the

Court of Appeal.

[21]      Ground 5 which alleges, in effect that Rule 380 of the Federal Court Rules, 1998

is unconstitutional raises no arguable issue. There is simply no merit to this ground of appeal as rules of Court can provide for procedures to deal with matters before the Court.

[22]      There is no arguable issue raised by ground 6 of the Notice of Appeal as the

plaintiff did have an opportunity to make submissions with respect to the matters before Madame Justice Sharlow.

[23]      Again, there is no arguable issued raised by the statements contained in ground 7

of the Notice of Appeal. Simply because a party is unsuccessful in a matter before the Court does not result in the administration of justice being brought into disrepute nor does such lead to a breach of the Charter.

[24]      As the plaintiff has presented argument to the Prothonotary and has had an appeal

of the Prothonotary"s decision heard by Madame Justice Sharlow, the plaintiff has had a hearing. The Rules of the Court provide for the ending of a matter before a trial. Consequently, ground number 8 does not raise an arguable issue.

[25]      The allegations contained in ground number 9 do not disclose an arguable issue

for the Court of Appeal.

[26]      As to ground number 10, the parties are not always on equal footing when they

appear in Court. This does not raise an arguable issue.

[27]      As to factors 2, 3, 4 and 5 listed by Prothonotary Hargrave in Sim, supra, I find

that the plaintiff has satisfied these factors.

[28]      In relation to factor 6, I do not believe that it would be in the interests of justice to

grant the extension of time for filing the appeal as the plaintiff has not established that he has an arguable case on the merits and hence, it would not be in the interests of justice to take away the defendant"s appeal limitation period.

[29]      One further matter that needs to be addressed is the plaintiff"s claim in this motion

for a "binding declaration of right declaring the procedural framework of paragraph 27(2)(b) of the Federal Court Act unconstitutional". Subsection 57(1) of the Federal Court Act requires:

57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).

57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, dont la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2).

    

[30]      As there is no indication before me that any such notices have been filed on the

Attorneys General of Canada or any of the Provinces, I am of the opinion that this Court does not have jurisdiction to determine this part of the motion. (See Constantineau v. Canada (A.G.) A-207-97, 27 April 1998 (Fed. C.A.). The notice is to be in Form 69.

[31]      The plaintiff"s motion also requests an Order:

". . . reimbursing the plaintiff the $20.00 costs of filing this motion and directing the Registrar issue the Notice of Appeal herein, dated January 31st, 2000 in the Federal Court of Appeal without cost or filing charges in forma pauperis."

[32]      I am not prepared to order that the $20.00 costs of filing the motion be

reimbursed.

[33]      With respect to ordering the Notice of Appeal to be filed in the Federal Court of

Appeal without cost or filing charges, I do not have authority to make orders relating to the Federal Court of Appeal.

[34]      As the plaintiff"s motion does not meet all of the requirements for granting

the extension of time, the motion for an extension is dismissed.

ORDER

[35]      For the reasons given above, the motion is dismissed.

[36]      There shall be no order as to costs.

                                 "John A. O"Keefe"     

                                     J.F.C.C.

Ottawa, Ontario

May 18, 2000