Johnson v. Maritime Telegraph and Telephone, 2002 FCT 487

Date: 20020429

Docket: 02-T-9

Neutral citation: 2002 FCT 487

Ottawa, Ontario, this 29th day of April, 2002

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

BETWEEN:

   DEBORAH JOHNSON

      Applicant

           - and -

MARITIME TELEGRAPH AND TELEPHONE

Respondent

    REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion by Deborah Johnson (the "applicant") for an extension of time to file her application for judicial review of the decision of the Canadian Human Rights Commission ("CHRC"), dismissing her complaint and refusing to appoint a tribunal to inquire into the complaint.

[2]                 The applicant was notified of the CHRC decision by letter dated June 28, 2001.

[3]                 On July 27, 2001, the applicant's solicitor attempted to file an application for judicial review of the CHRC decision in this Court, but the application was not accepted for filing as it was not in proper form.

[4]                 For various reasons, the applicant's solicitor did not attempt to file an amended application for judicial review until January 15, 2002. The amended application for judicial review was not accepted for filing as the original application for judicial review had not been filed.

[5]                 The motion for an extension is made pursuant to subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7.

[6]                 Issue

Should an extension of time in which to file the application for judicial review be granted?

Analysis and Decision

[7]                 The failure to have the application filed in time was not the fault of the applicant herself but was due to her counsel's failure to have the application filed within the time limits. The failure by counsel to have the application filed in time does not preclude me from granting an extension of time to file the application. MacKay J. in LeBlanc v. National Bank of Canada [1994] 1 F.C. 81 (F.C.T.D.) at page 94 stated:

. . . Nevertheless, despite missteps by counsel, that would not be enough, in my view, to preclude the exercise of discretion in a case where the applicant establishes a basis for the Court to conclude, in the interests of justice between the parties, that there is a reasonable chance of success in an application for judicial review.

[8]                 Lutfy J. (as he then was) came to the same conclusion in Carson v. Canada (Attorney General) [1999] F.C.J. No. 44 (QL) (F.C.T.D.). I am of the same view as MacKay J. and Lutfy J. (as he then was).

[9]                 The approach to be used when deciding whether or not to grant an extension of time to file, in the present case, an application for judicial review, was outlined by MacKay J. in LeBlanc, supra at page 94:

While this Court, in considering an extension of time, must not weigh finally the merits of the applicant's case, the jurisprudence is clear that it must be persuaded the applicant has a reasonable chance of success in an arguable case. Grewal, supra, upon which the applicant relies in part, is distinguishable from normal cases of this sort for there the reasonable chance of success was evident in light of subsequent clarification of Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985 Appendix II, No. 44]] rights by the Supreme Court of Canada and the tribunal's decision was made by a process in conflict with the Charter rights so clarified. In Grewal, Mr. Justice Marceau, concurring with the majority but for reasons separately expressed, said at page 282:

The imposition of time limits to dispute the validity of a legal decision is of course meant to give effect to a basic idea of our legal thinking that, in the interest of society as a whole, litigation must come to an end (interest reipublicae ut sit finis litium), and the general principles adopted by the courts in dealing with applications to extend those limits were developed with that in mind. Only if the ultimate search for justice, in the circumstances of a case, appears to prevail over the necessity of setting the parties' rights to rest will leave to appeal out of time be granted. Hence the requirement to consider various factors, such as the nature of the right involved in the proceedings, the remedy sought, the effect of the judgment rendered, the state of execution of that judgment, the prejudice to the other litigants in the dispute, the time lapsed since the rendering of the judgment, the reaction of the applicant to it, his reason for having failed to exercise his right of appeal sooner, the seriousness of his contentions against the validity of the judgment. It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay.

[10]            I am satisfied that the applicant has a reasonable chance of success if the judicial review is allowed to proceed. I have reviewed the affidavit of the applicant's solicitor sworn to on January 24, 2002 and the attachments thereto. The report of the investigator in the applicant's CHRC complaint recommends that a conciliator be appointed. The investigator's report at paragraphs 66 and 67 seem to suggest that the complainant's complaint has merit. Yet the letter of the CHRC of June 28, 2001 states that the CHRC dismissed the application. This would appear on the surface, to raise an issue that has a reasonable chance of success.

[11]            The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 stated at paragraph 43:

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

[12]            In the Baker, supra case, the notes of the officer were found to be sufficient to constitute reasons. In the present case, the report of the investigator does not support the decision reached by the CHRC. The situation was different in Syndicat des employés de production du Quebéc et de l'Acadie v. Canada (Human Rights Commission) [1989] 2 S.C.R. 879. There the CHRC adopted the report of the investigator. It did not do this in the present case.

[13]            I am satisfied that the applicant's application for judicial review has a reasonable chance of success based on the two issues mentioned in paragraphs 10 and 12 of this decision.

[14]            It appears that the applicant always intended to continue her application for judicial review and it was only the failure of her solicitor to have the application filed that necessitated this motion. The solicitor gave reasons why he did not have the amended application filed. I am satisfied based on those facts that there is a satisfactory explanation for the delay in filing the application for judicial review.

[15]            The respondent stated that it would be prejudicial due to the time that has passed and that witnesses would be missing. Paragraph 12 of the affidavit of Allana Gail Loh refers to the delay in bringing the complaint was prejudicial to the respondent due to, among other factors, changes in its operations and staffing". Paragraph 17 of the same affidavit refers to the difficulty the respondent was "having responding to the complaint due to the changes that had occurred within the Respondent company since the date of the events complained of including the loss of personnel and documentation." This, to me, does not say witnesses or documents cannot be located. I am not satisfied that granting the extension of time would be prejudicial to the respondent.

[16]            The applicant's motion for an extension of time to file her application for judicial review is granted. The applicant shall have 10 days from the date of this decision to file her application for judicial review.

ORDER

[17]            IT IS ORDERED that the motion for an extension of time to file an application for judicial review is granted.

[18]            AND IT IS ORDERED that the applicant shall have 10 days from the date of this decision to file the application for judicial review.

                         "John A. O'Keefe"             

J.F.C.C.                      

Ottawa, Ontario

April 29, 2002