Date: 20020719
Docket: T-137-02
Neutral Citation: 2002 FCT 808
BETWEEN:
THE SCHWARZ HOSPITALITY GROUP LIMITED
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HARGRAVE P.
This judicial review proceeding is one of several involving development at Storm Mountain Lodge in Banff National Park. While there is some dispute as to the date of the decision being reviewed, as a result of a mindless use of the term "without prejudice" by Parks Canada, the decision to be reviewed is dated 11 July 2001.
In the present judicial review proceeding the Applicant now seeks leave, by way of a motion in writing, to file two supporting affidavits containing, as exhibits, documentary evidence, after time has run.
CONSIDERATION
The written argument on the present motion is wide ranging, even extending into the irrelevant.
Timeliness of the Judicial Review Application
In determining whether the time extension for the filing of affidavits ought to be granted, I am not in any way touching upon the submission of the Respondent, that this judicial review was begun well beyond the 30-day time limit set out in Rule 18.2(1), without the required leave, in any form, from a judge of the Federal Court. As I understand the procedure, when an out of time applicant wishes judicial review, he or she files a motion seeking an extension of time pursuant to Rule 18.1(2), obtains a provisional or interim file number and pays the required fee. Rather than obtain an ex parte direction, the applicant must then serve the respondent with the time extension motion. The respondent has 10 days within which to respond, the applicant having a further four days within which to serve and file representations in reply. The matter then goes before a judge, as if it were a Rule 369 motion in writing. Only after receiving an extension of time from a judge, at which point the applicant is granted a new and permanent file number, may the judicial review proceeding be filed. Thus, the question of the overall timeliness of this judicial review application, if indeed it was begun late, is still open.
The Law Bearing on the Time Extension
At issue on this motion is a time extension within which to file Rule 306 affidavit material in support of the judicial review. Leave is governed by the principle that two elements need to be addressed, being the reason for the delay and the intrinsic worth of the affidavit, embody a consideration of the relevance, admissibility and potential use to the Court of the material. Here I refer to Canadian Parks and Wilderness Society v. Banff National Park (1994), 77 F.T.R. 218 (F.C.T.D.), a decision of Mr. Justice MacKay:
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[13] In Munsingwear Inc. v. Prouvost S.A., [1992] 2 F.C. 541; 141 N.R. 241 (F.C.A.) Mr. Justice Décary for the Court of Appeal dealt with criteria for considering leave for late filing of affidavits pursuant to Rule 704(8) in an appeal from the decision of the Registrar of Trademarks under section 56 of the Trade-Marks Act, R.S.C. 1985, c. T-13, in which by Rule 704 a time is limited for filing additional evidence. While this is not such a case, in my view the criteria there relied upon are applicable in this case, where leave is sought to file materials later than the date fixed by court order. Those requirements are that the court consider the reasons for the delay and the intrinsic worth of the affidavit, i.e. its relevance, admissibility and potential use to the court.
(page 222)
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Canadian Parks and Wilderness Society was affirmed by the Federal Court of Appeal (1996), 199 N.R. 8. Several weeks after Mr Justice MacKay decided Banff National Park Associate Chief Justice Jerome applied essentially the same test, looking for a valid reason for the delay and the existence of evidence which was relevant and admissible, in Mapei Inc. v. Flextile Ltd. (1995), 59 C.P.R (3d) 211 (F.C.T.D.) at 213.
More recently Mr. Justice Muldoon applied this principle in Strykiwsky v. Stony Mountain Institution (2000), 193 F.T.R. 59 (F.C.T.D.) at 62, where he looked for the reasons for the delay for late filing and that whether the affidavits contained evidence which was relevant and admissible, referring to Mapei Inc. (supra). Perhaps the last word, not by reason of time, but by reason of clarity in setting out the rule and the approach, should go to Mr. Justice Strayer, as he then was, in Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 37 F.T.R. 199 (F.C.T.D.) at 200:
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[3] The jurisprudence is clear that in an application for an extension of time under rule 704(8) the court should take into account both the reasons for the delay and the intrinsic worth of the affidavits (i.e., relevance, admissibility, and potential use to the court). It has been said in some of the cases that both factors must be weighed together. Accepting this to be the correct approach for present purposes, I understand it to mean that one must still weigh the seriousness of the delay against the potential value of the affidavits and that either may outweigh the other. Taking that approach, I believe that in this case the delay and the lack of excuse for it outweighs the potential value of these affidavits.
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To summarize, I must examine the reasons why the delay occurred and balance the seriousness of that delay against the intrinsic worth of the material, taking into account relevance, admissibility and potential use to the Court.
Affidavit of Anita Ethiers
[8] There are two late affidavits at issue which the Applicant would now like to file. The 13 May 2002 affidavit of Anita Ethiers has, as a sole exhibit, a copy of a Review of Parks Canada 2000 Land Values for Outlying Commercial Accommodations which has an effective date of 8 February 2002. It was sent by the Review Committee to Parks Canada on 3 March 2002 with a preface, setting out the terms of reference, being dated 15 January 2002.
[9] Late receipt of a document can be grounds for the late filing of an affidavit. However, by its date the Land Value document is one which could not have been before the Tribunal when it made the decision in July 2001. Thus the document is irrelevant, inadmissible and of no potential use to the Court. By way of example, Mr Justice Nadon, as he then was, considered production of documents which were not before the tribunal in 1185470 Ontario Ltd. v. Minster of National Revenue (1998), 150 F.T.R. 60 (F.C.T.D.). He wrote, at page 65:
| [10] In Sovereign Life Insurance Co. v. Canada (Minister of Finance) (1995), 100 F.T.R. 81, I had to consider former Rule 1305 which was the equivalent Rule 1612 in the context of statutory appeals. That rule provided that the tribunal whose decision was the subject of the appeal had to send to the Registry of this Court all papers relevant to the matter before it and which were in its possession or control. In reaching a conclusion in that case, I considered a number of Federal Court decisions including the decision of the Federal Court of Appeal in Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432. At 93 of Sovereign, I concluded:
"In addition to being relevant to the issue before the Tribunal, the documents sought must, in my view, have been presented or made available to the Tribunal. On this point, I wish to emphasize that part of the Thurlow, C.J.'s comments, cited hereinabove in Trans Quebec & Maritimes Pipeline Inc. where he states that "The Tribunal will know what it has or has had that is relevant, what use has been made of it and why it is relevant to the decision ...". In Pacific Press Ltd. et al. v. Minister of Employment and Immigration et al. (No. 2) (1990), 127 N.R. 323, the Federal Court of Appeal had to decide whether material should be added to the case in a s. 28 application. At p. 324, Heald, J., stated that:
‘By this motion, the court is being asked to add material to the case that was not before the adjudicator when he made his decision and couldn't have been before him because it did not exist at that time. This court has declined to make such an order in such circumstances.'"
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Mr Justice Nadon's view on this point was upheld by the Federal Court of Appeal (1999), 247 N.R. 287 at 289.
[10] Certainly I am aware of Friends of the West Country Association v. Canada (1997), 130 F.T.R. 223 (F.C.T.D.) and related decisions (1997), 130 F.T.R. 206 (F.C.T.D.) and (1998), 150 F.T.R. 161 (F.C.T.D.). However, these Friends of the West Country cases, as I pointed out in Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines Inc. (2000), 183 F.T.R. 267 at 272 and following, constitute a single exception to the established line of cases, an exception which is only applicable in specific circumstances, which do not apply in this instance. I would add that Mr Justice Pelletier considered Friends of the West Country in Hiebert v. Price (1999) 182 F.T.R. 18 at 21 and then went on to follow a line of cases, of which 1185740 Ontario Ltd. forms a part. The Court of Appeal pointed out in Provitgo Distribution Inc. v. Union agricole des cooperatives latieres Isigny-sur-mer & Sainte-Mère-Eglise, unreported decision [1994] F.C.J. No. 1945 (F.C.A.) of 14 December 1994, that the late filing of an affidavit should not have been allowed because the affidavit would have no influence on the outcome of the case.
[11] The best submission that the Applicant can make, to counter the established law that only evidence before the tribunal may be considered on judicial review, is that there is neither a record of hearing nor any defined or specific record upon the Superintendent of Banff National Park made his decision. The submission of the Respondent is that the Applicant has yet to make a rule 317 request to the Superintendent to obtain relevant documents which were in his possession and before him when he made the decision. The only conclusion to reach here, and it is a point to which I shall return, is that there may well be a substantial body of material upon which the Superintendent based his decision and which, on a rule 317 request, would be produced and which could be incorporated into the present record. The Land Value document is, as I have said, irrelevant and has no potential use to the Court. The affidavit of Anita Ethiers is clearly inadmissible.
[12] The late filing of the Anita Ethiers affidavit of 30 May 2002 is denied, for, as I pointed out in President Asian Enterprises Inc. v. President Group Realty Ltd. (1997) 74 C.P.R. (3d) 29, at page 37, while there must be a balancing between delay and intrinsic worth of affidavit evidence, there must be something to balance:
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In the Seagram case (supra), Mr. Justice Collier looked upon excusing delay as a hurdle to overcome. However, the Court has also put emphasis on weighing the delay against the intrinsic worth of the material on a late filing application: see for example the Seagram case and the Munsingwear case, both referred to earlier. Following this analysis, the difficulty I have is in weighing the two aspects, the delay on the one hand, and the affidavit material, which has intrinsic worth on the other hand. There is nothing to go toward a balancing, on the side of explaining the delay. If there were any reasonable evidence, even a small amount of evidence, justifying the delay, I would be inclined to overlook the short delay and allow the motion. However, time limits in rules dealing with summary matters are not to be ignored without some reasonable justification. No justification has been offered in the present instance. Thus the motion is denied.
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In President Asian Enterprises there was no explanation of the delay, although there was intrinsic worth in the material. In the present instance, while there is some explanation for the delay, there is no intrinsic worth in the material and thus nothing to balance. As I also pointed out in President Asian Enterprises, time limits are not to be ignored. They are not to be ignored because to do so, without proper justification, would be to ignore the underlying premises in Grewal that justice must be done between the parties. I now turn to the Schwarz affidavit.
George Schwarz Affidavit
[13] The second affidavit, that of George Schwarz, president of the Applicant, the Schwarz Hospitality Group Limited, was apparently prepared in January 2002, presumably about the time that this application for judicial review was filed, 23 January 2002. The Schwarz affidavit, a substantial two volumes, was not sworn until 8 March 2002, well after time for filing affidavits under rule 306 had run.
[14] All the exhibits to the Schwarz affidavit, except part of exhibit CC, a letter from the tribunal which is essential as confirmation of the decision, EE which is irrelevant, as I believe are exhibits FF and GG, appear to pre-date the decision. Relevancy of the majority of the exhibits to the Schwarz affidavit is not a real issue at this point.
[15] The delay in filing the Schwarz affidavit is said to be the result of an unrealised hope for a negotiated settlement. The Applicant submits that to deny the filing of the Schwarz affidavit, which contains the pertinent documents, would be to deny the Applicant's right to pursue judicial review.
[16] There is substantial law on settlement negotiations and limitation: see for example Mew on the Law of Limitations, 1991, Butterworths, Toronto. To paraphrase Mew, at page 84 and following, settlement negotiations do not, generally, result in an inference that a time bar has been waived. Of course, where a defendant leads a plaintiff into a false sense of security, that action of misleading may result in the species of estoppel, unless the defendant puts the plaintiff on notice. Here, there is no specific evidence of negotiations. Rather, the circumstances were that the Applicant seemed to be pursing an avenue, that of a perceived contempt, unrelated to the object of this judicial review application. Indeed, that unrelated and to date unsuccessful excursion seems to have distracted the Applicant, even in the light of a reminder from the Respondent that time was running. I do not see that the argument of negotiations, effectively unsupported allegations of negotiations, provides any effective and valid reason for the delay.
[17] In response, the Respondent acknowledges that the overall objective applying to any test for extension of time is to do justice between the parties, as set out in Grewal v. Canada, [1985] 2 F.C. 263 (C.A.), but submits that there has been an overall pattern of delay going back to either August or November 2001 and, certainly, more recently, in that the Schwarz affidavit should have been filed by 27 February 2002. The Respondent submits that the delay, or perceived pattern of longer term delay, has been prejudicial to both the Respondent and to the administration of justice. However, I need not take the path to which that submission might lead, that of delay and an apparent lack of interest in the main thrust of this litigation. Better that the parties get on with the judicial review itself. The relevant delay, in the case of this motion, is the delay beginning with the initiation of this proceeding.
[18] As to the Applicant's excuse for the delay, it appears to me that the hope for negotiated settlement was just that, something hoped for, because there is nothing in the material other than a brief bald second hand statement in an affidavit of Ms Ethiers to substantiate the existence of any negotiations during the delay which occurred in this proceeding. Rather, the Applicant seems to have lost sight of its real objective becoming bogged down in a so far unsuccessful attempt to have Superintendent of Banff National Park held in contempt, an application which did not survive even the first stage of the process, that of establishing a prima facie case of contempt in order to obtain a show cause order. The resulting appeal of that application appears to have been delayed by an application to the Court of Appeal to extend the time within which to settle the contents of the appeal book. I understand the appeal is now progressing.
[19] The Respondent makes two further points. First, at no time did the Applicant request a Rule 7 consent extension of time; and second, the Respondent brought the running of time to the attention of the Applicant in March, some two and a half months before the present motion was filed.
[20] A proper procedure, which might well have forestalled the need for the present motion to extend time for filing the Schwarz affidavit, was suggested by Justice of Appeal Décary in Munsingwear Inc. v. Prouvost S.A., [1992] 2 F.C. 541. There he said that a party should alert the other side to the possibility of necessary late affidavits:
| The proper procedure would be for the party who finds it impossible to file his affidavits at the proper time to inform the opposing party of this and warn the latter that it will subsequently file an application for an extension of time when the affidavits are available.
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The idea of an early warning to the other side, of late affidavit material, could well mitigate the concepts both that delay may be a bar to discretionary remedy and that late filing is a contentious issue.
[21] The difficult issue in this instance is that, on the one hand, the Schwarz affidavit is relevant to the Applicant's judicial review application, yet there is no valid reason for the delay in filing of that affidavit. On the Applicant's own admission it had been prepared contemporaneously with the filing of the originating application for this judicial review. Thus, in the complete absence of any substantial reason for the delay, a necessary element, there is nothing to balance. Were there even a relatively weak reason for the delay, it might well be that late filing should be permitted. On the other hand, to deny the time extension to file the Schwarz affidavit, would do justice for the Respondent, but would make the Applicant's case fairly difficult, for as matters presently stands, there would be no documents before the Court. The result would, however, not be the equivalent of denying the Applicant its day in court.
[22] To pursue this last thought, that the Applicant without its affidavit would not be denied a day in court, I would observe that a real injustice would result if the Applicant, which has not met both branches of the test for late filing of the affidavit, were allowed to file that affidavit, contrary to the established case law. However, there is a way out of this. The Applicant submits in written argument that the Superintendent of Banff National Park, when he exercised his statutory obligation to make a decision, "... is required to and does make reference to a vast array of information, expertise, research and environmental assessment." (Paragraph 21 of the Applicant's Reply Record.) Thus, the Applicant has only to make a rule 317 request to the Superintendent, generally identifying the material and asking it be sent to the Court Registry. The Applicant would then need to obtain an Order that the material be included in the Record, or in a supplemental record.
CONCLUSION
[23] Neither the Anita Ethiers affidavit of 30 May 2002 nor the George Schwarz affidavit of 8 March 2002 may be filed late. In the first instance, the affidavit is clearly not relevant. In the second instance, while there may be relevant material in and attached to Schwarz affidavit there is no valid reason for the delay.
[24] The Respondent shall have the costs of the motion, forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
19 July 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-137-02
STYLE OF CAUSE: The Schwarz Hospitality Group Limited v. The Attorney General of Canada
PLACE OF HEARING: Motion in writing
DATE OF HEARING: -
REASONS FOR ORDER: Hargrave, P.
DATED: 19 July 2002
APPEARANCES:
Mr. Judson E. Virtue FOR APPLICANT
Ms. Michele Vincent FOR RESPONDENT
SOLICITORS OF RECORD:
Macleod Dixon LLP FOR APPLICANT
Barristers & Solicitors
Calgary, Alberta
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta
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