Date: 20021008
Docket: T-66-02
Neutral citation: 2002 FCT 1097
BETWEEN:
LINDA HIEBERT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HARGRAVE P.
[1] The judicial proceeding underlying this motion seeks a determination of whether there may be a relief, under section 3.3 of the Customs Act (the "Act"), from a deemed forfeiture. Section 3.3 of the Act deals with ministerial relief from penalties and interest. Thus the issue is whether money demanded by way of a deemed forfeiture, twice the duty and taxes which ought to have been paid, is a penalty falling within section 3.3, or merely some other form of assessment.
[2] By the present motion the Respondent seeks an extension, from the filing deadline of 11 March 2002, of the time within which to file an affidavit. The motion for the extension was filed 6 June 2002, 86 days after the affidavit should have been filed.
[3] This motion got off to an awkward beginning, for the Respondent, in the motion itself, set out a four-part test to satisfy, involving prejudice, a continuing intention to pursue the matter, the merit of the latter and a reasonable explanation for the delay, and did not provide a copy of the affidavit in question. The correct test for an extension of time within which to file an affidavit involves a weighing of the reasons for the delay and the intrinsic worth of the affidavit. I have now had the benefit of further written argument and also of a copy of an affidavit which the Respondent wishes to file, that of Mr Harvey Beaulac, sworn 17 July 2002.
CONSIDERATION
[4] Leave to file a late affidavit is governed by the principle that two elements must be considered and weighed one against the other. These elements are the reasons for the delay and the intrinsic worth of the affidavit, the latter involving a consideration of the relevance, admissibility and potential use to the Court of the affidavit. While there are a number of cases setting out the test I will refer to only two. In Canadian Parks and Wilderness Society v. Banff National Park (1994), 77 F.T.R. 218 (F.C.T.D.) Mr Justice MacKay said:
| [13] In Munsingwear Inc. v. Prouvost S.A., [1992] 2 F.C. 541 (C.A.); 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 Trade Marks 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.
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I also refer to Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 37 F.T.R. 199 (F.C.T.D.), a decision of Mr Justice Strayer, as he then was:
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[3] The jurisprudence is clear that in an application for an extension of time under sub-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. [Footnote: See e.g. McDonald's Corp. et al. v. Silcorp Ltd./Silcorp Ltée (1987) 17 C.P.R. (3d) 478 at 479-80 (F.C.T.D.); Joseph E .Seagran & Sons v. Seagram Real Estate Ltd. et al. (1988) 23 C.P.R. (3d) 283 at 284] 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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[5] These two cases stand for the principle that I must examine the reasons why the delay occurred and balance the seriousness of and the reasons for the delay against the intrinsic worth of the affidavit, taking into account the relevance, admissibility and potential use to the Court of that affidavit material. I now turn to the affidavit.
Intrinsic Worth of the Affidavit
[6] The Beaulac affidavit begins by repeating information and referring to documents which the Applicant has already set out and put into the Record. There follows an irrelevant justification of why the Respondent, in making the decision appealed from, dealt only with the principal amount of the assessment, overlooking relief as to interest. Included in the affidavit is an apparently gratuitous comment on what elements might justify a cancellation or waiver of interest and a meaningless comment, in view of the decision rendered, that the facts do not justify relief as to interest. The affidavit concludes with a reference to past practices of the Applicant, which may provide background, however that same background, in full and frank terms, is set out in the Applicant's affidavit in support of this judicial review application.
[7] The intrinsic worth of the affidavit, taking into account relevance, admissibility and potential use to the Court, is at best minimal.
Reasons for the Delay
[8] In the present instance the delay to be considered, not counting the time allowed in Federal Court Rules for the filing of affidavits, is 86 days.
[9] The reasons for the delay are somewhat involved. The Respondent acknowledges that the Applicant, Linda Hiebert, sought a reduction of the amount demanded and relief from interest and penalty, pursuant to section 3.3 of the Act and that this was denied by the Minister by letter of 13 December 2001. The Minister set out in the 13 December letter that an ascertain forfeiture assessment is not a penalty and thus the Applicant might not benefit from section 3.3 of the Act, which deals only with penalties or interest payable. However, the affidavit evidence of the Respondent, explaining the reason for the delay, is that only after speaking with a lawyer in the firm retained by the Applicant was counsel for the Respondent able to properly discern the nature of the application, that conversation taking place on 11 March 2002, the day that the Respondent's affidavit ought to have been filed. In contrast, from the Respondent's decision, which resulted in this judicial review, it is clear that the Respondent knew, at least as early as 13 December 2001, that the issue was whether the assessment was in the nature of a penalty and that only if it were a penalty, would relief be available, as to the principal amount under 3.3 of the Act. This was clearly the view of the Respondent set out in 13 December 2001 letter. This issue is also reasonably clearly set out in the Notice of Application initiating this judicial review proceeding.
[10] Here I would note that counsel for the Respondent, quite properly noted, in the 11 March 2002 conversation with a lawyer in the office retained by the Applicant, that there would an application for an extension of time within to file the affidavit.
[11] The reasons for the delay also include that counsel for the Respondent is in Winnipeg, with the client and those involved being in Ottawa and that the issue is novel.
[12] Before considering the reasons for the delay I would refer to the decision of Madam Justice Reed, in Chin v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 77 (F.C.T.D.) at pages 79 and 80. There Madam Justice Reed said that her approach to motions for time extensions started with the premise that time limits are meant to be complied with, with compliance being by everyone equally, time extensions not being automatic, unless the rules so provided. She then looked for a reason for the delay beyond the control of counsel, for to take any other approach would penalize counsel who "pulled out all the stops" in order to meet deadlines, notwithstanding inconvenience to themselves.
[13] While the issue as to the scope of section 3.3 of the Act may be an issue without precedent, it is disingenuous for the Respondent to say that the issue was not clear from the application for judicial review. The amount at stake is not small. It ought to have attracted a more timely response than a motion for a time extension filed 86 days after the affidavit was due. Moreover, while the affidavit contains nothing novel and no information which was not available within the time for filing affidavit, the affidavit was not sworn until 128 days after a time it ought to have been filed.
[14] Overall, the reasons explaining or justifying the delay are weak. While the substantial length of the delay is a factor, it is not a large factor, but rather it is the general conduct of the Respondent, resulting in the delay, that is wanting.
CONCLUSION
[15] A combination of lack of relevance, doubtful admissibility and want of any great potential use to the Court has resulted in an affidavit of, at best, minimal intrinsic worth. The reasons for the delay are weak.
[16] Given the seriousness of and lack of weight of the reasons for the delay and the minimal intrinsic worth of the affidavit, the motion for an extension of time within which to file the affidavit is denied. Costs to the Applicant at the conclusion of this proceeding.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
8 October 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-66-02
STYLE OF CAUSE: Linda Hiebert v. Attorney General of Canada
REASONS FOR ORDER OF: Hargrave P.
DATED: 8 October 2002
WRITTEN REPRESENTATIONS BY:
Barbara M. Shields FOR APPLICANT
Jeffrey D. Pniowsky FOR RESPONDENT
SOLICITORS ON THE RECORD:
Aikins, MacAulay & Thorvaldson FOR APPLICANT
Barristers & Solicitors
Winnipeg, Manitoba
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Winnipeg, Manitoba
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