Date: 19990922
Docket: A-490-98
CORAM: DÉCARY J.A.
MacKAY J.
McDONALD J.A.
BETWEEN:
STEVEN ANTHONY FORSTER
Appellant
(Applicant)
- and -
THE ATTORNEY GENERAL OF CANADA
representing the Correctional Service of Canada and
the Independent Chairperson of the Warkworth Penitentiary
Disciplinary Board
Respondent
(Respondent)
Heard at Toronto, Ontario, Tuesday, September 21, 1999
Judgment delivered at Toronto, Ontario on Wednesday, September 22, 1999
REASONS FOR JUDGMENT BY: McDONALD J.A.
CONCURRED IN BY: DÉCARY J.A.
MacKAY J.
Date: 19990922
Docket: A-490-98
CORAM: DÉCARY J.A.
MacKAY J.
McDONALD J.A.
BETWEEN:
STEVEN ANTHONY FORSTER
Appellant
(Applicant)
- and -
THE ATTORNEY GENERAL OF CANADA
representing the Correctional Service of Canada and
the Independent Chairperson of the Warkworth Penitentiary
Disciplinary Board
Respondent
(Respondent)
REASONS FOR JUDGMENT
McDONALD J.A.:
[1] This is an appeal brought by Steven Anthony Forster (the "Appellant") in respect of an Order of the Federal Court -- Trial Division. The Trial Judge struck out the Appellant"s application for judicial review because it was commenced outside the 30 day time limit established by subsection 18.1(2) of the Federal Court Act , R.S.C. 1985, c. F-7. The appellant had been convicted for a disciplinary offence on November 14, 1997 and he filed his application for judicial review of the conviction only on March 23, 1998.
[2] This appeal was heard in Toronto, in the absence of the appellant, an inmate of the Warkworth penitentiary. The appellant had expressly and on his own volition asked the Court to be dispensed from attending the hearing and to decide the appeals on the basis of his written submissions. The Court granted the appellant"s request and the appeals proceeded in the presence of counsel for the respondent. Counsel informed the Court that she had nothing to add to her written submissions.
[3] A Trial Judge has the discretion to extend the 30 day time limit set out in section 18.1(2) of the Federal Court Act. There are a number of factors that courts have, in the past, considered in the exercise of that discretion. One of the most important of these has been the reason for the delay. As this Court in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 stated at page 277, "any laxity or failure of the applicant to pursue [the application] as diligently as could reasonably be expected of him could militate strongly against his case for an extension." In Council of Canadians v. Canada (Director of Investigation and Research), (1997) 212 N.R. 254, at page 255, another panel of this Court summarized that passage as "a requirement that an applicant for an extension of time must display due diligence."
[4] The Appellant gives two reasons for his delay in his written materials. First, his computer was confiscated on November 19, 1997 and returned on December 29, 1997. Second, there were some problems with the tape recordings the Appellant received of his disciplinary hearing. Some of the tapes were difficult to understand in parts, and there was one day worth of tape missing from a five-week hearing.
[5] In Skycharter Ltd. v. Canada (Minister of Transport) (1997), 125 F.T.R. 307, the Trial Division denied an applicant an extension of time when the applicant had not received a copy of a lease that they were challenging. The Court held that the applicants in that case had 30 days from the time that they heard about the decision to lease some land at Pearson International Airport, and that waiting for full particulars of a decision is not a good enough reason to grant an extension of the 30 day time limit.
[6] The Appellant had received the decision of the disciplinary hearing and most of the tapes of that hearing by November 17, 1997. Waiting for the full tape recorded transcript constituted waiting for full particulars in this case. The Motions Judge exercised his discretion properly when he found that waiting for the tapes did not constitute a sufficiently good reason for the delay in the case at bar.
[7] As to whether confiscating the appellant"s computer constitutes a reasonable excuse for the delay, it was open to the Motions Judge to find as he did because the appellant did not file his application until some three months after the day he got his computer back.
[8] The appeal should be dismissed. There will be no order as to costs.
"F.J. McDonald"
J.A.
"I agree.
Robert Décary J.A."
"I agree.
W. Andrew MacKay J."
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-490-98
| STYLE OF CAUSE: STEVEN ANTHONY FORSTER |
(Applicant)
- and -
| ATTORNEY GENERAL OF CANADA |
representing the Correctional Service of Canada and
| the Independent Chairperson of the Warkworth Penitentiary Disciplinary Board |
(Respondent)
DATE OF HEARING: TUESDAY, SEPTEMBER 21, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: McDONALD J.A. |
| CONCURRED IN BY: DÉCARY J.A., MacKAY J. |
Delivered at Toronto, Ontario
on Wednesday, September 22, 1999
APPEARANCES: No One Appearing
Ms. Sadian G. Campbell
For the Respondent
| SOLICITORS OF RECORD: Steven Anthony Forster |
c/o The Warkworth Penitentiary
Campbellford, Ontario
K0L 1L0
| For the Appellant on his own behalf |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 19990922
Docket: A-490-98
BETWEEN:
Appellant
(Applicant)
- and -
ATTORNEY GENERAL OF CANADA
| representing the Correctional Service of Canada and |
| the Independent Chairperson of the Warkworth Penitentiary Disciplinary Board |
Respondent
(Respondent)
REASONS FOR JUDGMENT
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