Date: 20000331
Docket: A-519-99
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
Appellant
-and-
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
MALONE, J.A.
[1] This appeal concerns a discretionary order made by the learned Trial Judge ordering that the within action be dismissed in accordance with Rule 382 (2)(a).
[2] New Federal Court Rules came into effect on April 25, 1998 creating a scheme of case management and dispute resolution which involves court intervention in the interests of the better administration of justice.
[3] The appellant in response to a notice of status review filed his written submission on April 6, 1999. On June 10, 1999 Denault, J. considered the submission and ordered the proceedings be dismissed. A review of his order has not persuaded us that this exercise of his discretion was based on a misapprehension of the facts or any legal error.
[4] On June 22, 1999 the appellant filed a notice of motion for an extension of time to bring a motion for reconsideration and for reconsideration pursuant to rule 397. The basis for the motion was that certain correspondence between the appellant and counsel for the respondent had been accidentally omitted from the April 6, 1999 written submission. By order dated July 19, 1999 the Trial Judge dismissed this motion on the basis it was made late and there was no indication of an oversight in making the original order.
[5] On the basis of the affidavit material before the Trial Judge there was no basis upon which he could have permitted an extension of time. The normal factors in support of such a motion namely the intention to take proceedings within the prescribed time limits, the existence of an arguable case, the cause and actual length of the delay and whether there was prejudice caused by the delay were not deposed to. There is no basis upon which this Court could set aside the order of July 19, 1999.
[6] This second motion was essentially an attempt to reargue the case based on new evidence; evidence that was available for presentation in the April 6, 1999 written submission but for the lack of diligence on the part of the appellant.
[7] The appeal will be dismissed. The respondent will have its costs.
"B. Malone"
J.A.
"I agree"
"Robert Décary"
J.A.
"I agree"
"Marshall Rothstein"
J.A.
Winnipeg, Manitoba
March 31, 2000
Date: 20000331
Docket: A-519-99
CORAM: DÉCARY, J.A.
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
PHILLIP ROSEN
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Winnipeg, Manitoba on March 29, 2000
JUDGMENT rendered at Winnipeg, Manitoba on March 31, 2000
REASONS FOR JUDGMENT BY: MALONE, J.A.
CONCURRED IN BY: DÉCARY, J.A.
ROTHSTEIN, J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
THIS IS AN APPEAL FROM THE TRIAL DIVISION IN COURT FILE NO. T-340-97 DATED JUNE 10, 1999
COURT FILE NO.: A-519-99
| STYLE OF CAUSE: PHILLIP ROSEN v. HER MAJESTY THE QUEEN |
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: March 29, 2000 |
REASONS FOR JUDGMENT OF
THE HONOURABLE MR. JUSTICE MALONE
DATED MARCH 31, 2000
APPEARANCES:
Phillip Rosen on his own behalf
Winnipeg, Manitoba
Robert Gosman for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD:
Phillip Rosen on his own behalf
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
Email this Content