Docket:
13-A-31
Citation:
2013 FCA 249
Present: WEBB J.A.
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BETWEEN:
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KIMBERLY NEWMAN
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Applicant
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And
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER
WEBB J.A.
[1]
This is a motion by the applicant to extend the
time within which she may appeal the judgment of Justice O’Reilly dated April
9, 2013 (the Federal Court decision). The respondent submitted a letter
indicating that the respondent does not take any position in relation to this
motion and would not be filing a respondent’s motion record.
[2]
The applicant applied for a disability award
under section 45 of the Canadian Forces Members and Veterans Re-establishment
and Compensation Act. Her application was initially rejected but upon
appeal to an appeal panel of the Veterans Review and Appeal Board she was
granted a one-fifth disability pension. The applicant asked the appeal panel to
reconsider this decision but the appeal panel rejected this request. The
applicant then sought judicial review of the decision of the appeal panel
rejecting her request for reconsideration. Her application for judicial review
was dismissed on April 9, 2013 for the reasons as set out in the Federal Court
decision. The applicant has now requested that the time within which she may
appeal the Federal Court decision be extended.
[3]
In La-Z-Boy Canada Ltd. v. Allan Morgan and
Sons Ltd., 2004 FCA 368, Justice Rothstein stated that:
9 In Sim v. Canada (1996), 67 C.P.R. (3d) 334, Hargrave P.
succinctly summarized the considerations on an application to extend time:
1.
Whether the appeal itself has merit; there must
be arguable issues to put before the Court of Appeal;
2.
The special circumstances showing or explaining
why the appeal was not brought within the required time;
3.
The intention of the plaintiff to appeal existed
before the time for appeal ran out;
4.
Whether the delay has been excessive;
5.
Whether the Crown will be prejudiced by an extension
of time within which to appeal; and
6.
Whether it is in the interests of justice to
grant the time extension.
[4]
With respect to the first consideration, Justice
Desjardins in Assoc. des crevettiers acadiens du Golfe Inc. v. Canada (Attorney General), 2009 FCA 229, noted that
7 There is no need for the appellants to show that they will
succeed on appeal. However, they must show that they have an arguable case
(question valable ou défendable) to put before the Court of Appeal. This is a
low threshold to meet.
[5]
The applicant in this case raises the issue of
the application of the presumption found in section 51 of the Canadian
Forces Members and Veterans Re-establishment and Compensation Regulations
as well as other issues. As noted above, it is not necessary for the applicant
to establish that she will succeed on appeal and the threshold is low. I am
satisfied that the applicant has met the low threshold of establishing that she
has an arguable case.
[6]
The applicant has submitted an affidavit to explain
that she did not appeal within the 30 day time limit because she encountered
personal problems. Since the respondent has not taken any position in relation
to this motion, it is not necessary to recite the personal problems that the
applicant encountered. I am satisfied that the applicant had the intention to
appeal the decision before the appeal period had expired, that the delay was
not excessive and that her personal problems prevented her from appealing.
[7]
I am also satisfied that the respondent will not
be prejudiced if the applicant is granted an extension of time to file her
appeal and that it is in the interests of justice to grant the extension of
time.
[8]
As a result, the motion of the applicant for an
extension of time to appeal the Federal Court decision is granted and the time
within which the applicant may appeal the Federal Court decision is extended to
November 15, 2013.
“Wyman W. Webb”
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