Date: 19990913
Docket: 99-T-23
BETWEEN:
CANADIAN PACIFIC RAILWAY
Applicant
- and -
RON T. CLERK
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion on behalf on the applicant for an order extending the delay for the filing of an application for judicial review of a decision of the respondent Brian Dunn dated March 22, 1999 and received by the applicant March 29, 1999.
[2] Pursuant to the Rules, the applicant had until April 28, 1999 to file and serve an application for judicial review of the decision of Brian Dunn, dated March 22, 1999.
[3] Counsel for the applicant has explained to the Court that she discussed with her client"s representative the possibility to file an application for judicial review of the decision of Brian Dunn, dated March 22, 1999. A few days after, they both received the decision.
[4] Counsel for the applicant has explained that the applicant never abandoned the possibility to file an application for judicial review, but they were trapped in a series of difficulties with the Adjudicator after the said decision of March 22, 1999 and she was not capable to make a final decision on that application.
[5] Counsel for the applicant mentioned that the Adjudicator has fixed unilaterally hearings of the case for April 26 and 27, 1999 which hearing was finally adjourned and on April 30, 1999 the Adjudicator left a message on the voice mail of the applicant"s counsel advising her that he was scheduling the hearing for May 19 to 21, 1999 as well as June 15 to 17, 1999. He further informed her that no further request for the adjournment would be considered.
[6] On May 5, 1999, and given the various remarks made by the Adjudicator, the applicant requested his withdrawal from the file.
[7] On May 11, 1999, the Adjudicator although indicating he would hear the request to withdraw if presented at the outset of the hearing, nevertheless, he confirmed that the hearing would proceed as scheduled on May 19 to 21, 1999 and June 15 to 17, 1999.
[8] After that, counsel for the applicant filed a motion for judicial review of that decision.
[9] A motion for stay of proceedings in front of the Adjudicator, Mr. Brian Dunn was also filed and granted by this Court on May 18, 1999, pending file decision on the application for judicial review on his decision of May 11, 1999.
[10] Only after those events, counsel for the applicant decided nevertheless to file this motion requesting an extension of delay to file an application for judicial review of the decision of the Adjudicator Brian Dunn dated March 22, 1999.
[11] Even though the Court may understand the difficulties encountered by counsel for the applicant in the management of this file, counsel for the applicant has admitted that both her and her client had contemplated the opportunity to file an application for judicial review but made no decision within the delay.
[12] Even on May 5, 1999, counsel for the applicant mentioned in her letter to the Adjudicator the delay for an application for judicial review.
[13] Counsel for the applicant also mentioned that the March 22, 1999 decision by the Adjudicator is an interlocutory decision and she also has the opportunity to address the issue of jurisdiction on the merit of the case, if they finally get to it.
[14] The applicant"s representative Mrs. Kari Giddings also mentioned in her affidavit at paragraph 38 that they discussed the opportunity for filing an application for judicial review of this decision but they "did not come to a final decision on the issue on that time". Counsel for the applicant failed to meet the burden to show this Court why she waited that long even after Justice Dubé"s decision to file this application for judicial review.
[15] Counsel for the applicant was not prevented in any way of a right to file an application for judicial review within the delay; for any reason, she decided to wait.
[16] For those reasons, THIS COURT ORDERS THAT
The motion for an extension of time is dismissed with costs established at $500.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 13, 1999
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