Date:
20130307
Docket:
A-3-13
Citation: 2013 FCA 71
Present: SHARLOW
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
DENISE
PICARD
Respondent
REASONS
FOR ORDER
SHARLOW J.A.
[1]
The
applicant the Attorney General of Canada (the Crown) has moved for an order to
correct certain procedural errors in this matter. For the following reasons, I
will dismiss the motion but permit the Crown to submit, within a stipulated
deadline, a new motion to correct not only the procedural errors that the Crown
has identified, but also the further deficiency described below.
[2]
This
proceeding began on January 4, 2013 when the Crown filed an application for
judicial review of the decision of an Umpire under the Employment Insurance
Act, S.C. 1996, c. 23 (CUB 80185) dated November 6, 2012. The application
was served
personally on the respondent Denise Picard on January 9, 2013 (affidavit of
Dennis Duclos sworn January 10, 2013).
[3]
The
Crown is seeking an order extending the time for filing proof of service of the
application for judicial review, and also extending the time within
which Ms. Picard may comply with Rule 307 of the Federal Courts Rules,
SOR/98-106, which permits her to serve the Crown with an affidavit in response
to the Crown’s affidavit if she files proof of service within 30 days after
being served with the Crown’s affidavit.
[4]
The
first part of the Crown’s motion was made necessary when, due to an oversight,
the Crown failed to comply with Rule 304(3), which stipulates that proof of
service of the notice of application to be filed within 10 days after it is
served.
[5]
As
to the second part of the Crown’s motion, it appears the Crown’s affidavit was
sent to Ms. Picard’s address by overnight courier on February 8, 2013. Service
by courier is permitted for documents that are not required to be served
personally (Rule 138 and Rule 140(1)(c)). However, the effective date of
service by courier is the date of receipt as indicated by the courier receipt
(Rule141(2)). In this case, no courier receipt was included in the record to
establish the effective date of service. Therefore, the Crown has not
established the starting date for the period stipulated for compliance with
Rule 307. In the absence of any acknowledgement by Ms. Picard as to whether and
when she was served with the Crown’s affidavit, there is no factual foundation for
an order extending the time within which Ms. Picard must comply with Rule 307.
[6]
But
there is a more serious problem with the Crown’s motion. The problem is that
the application for judicial review does not comply with Rule 301,
which states the required contents of an application for judicial review. In
particular, it does not comply with Rule 301(e), which reads in relevant
part as follows:
|
301. An application
shall be commenced by a notice of application in Form 301, setting out
|
301. La demande est introduite
par un
avis de demande, établi selon la formule 301, qui contient les renseignements
suivants :
|
|
[…]
|
[…]
|
|
(e) a complete and
concise statement of the grounds intended to be argued, including a reference
to any statutory provision or rule to be relied on […]
|
e) un énoncé
complet et concis des motifs invoqués, avec mention de toute disposition
législative ou règle applicable […].
|
[7]
The
application for
judicial review does not contain “a complete and concise statement of the
grounds intended to be argued”, nor does it refer to any statutory provision or
rule that the Crown intends to rely upon. On the contrary, it merely paraphrases
subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7, which
lists all of the grounds upon which the Federal Court may grant relief in an
application for judicial review.
[8]
Specifically,
the Crown has done no more than allege, with no particulars, that the Umpire
(a) acted without or beyond his jurisdiction, or refused to exercise his
jurisdiction, (b) failed to observe a principle of natural justice, procedural
fairness or other procedure that he was required to observe, (c) erred in law,
whether or not the error appears on the face of the record, (d) based his
decision on an erroneous finding of fact made in a perverse or capricious
manner or without regard to the material before him, and (e) acted contrary to
law. In a final redundancy, the final ground is said to be “such further and
other grounds as counsel may advise and the Court may permit”.
[9]
The
deficiency in the application for judicial review is a failure on the part of
the Crown to observe the Federal Courts Rules. It may also indicate a
more fundamental failure on the part of the Crown in determining whether it
actually has a basis for challenging the Umpire’s decision. But most
importantly, it may be unfairly prejudicial to Ms. Picard because she cannot
know the case she must meet in order to defend the Umpire’s decision. Until the
deficiency in the application for judicial review is corrected, I see no point
in correcting the other errors that are the subject of the Crown’s motion. For
that reason, the Crown’s motion will be dismissed.
[10]
I
am aware that the boilerplate form of application for judicial review used in
this case has become common practice for the Crown in certain relatively
routine proceedings. It may be that in some cases the respondent is
sufficiently aware of the issues that no prejudice arises. Nevertheless, the
practice is wrong in principle and in this case I am not prepared to tolerate
it.
[11]
I
will make an order requiring the Crown to submit a motion for leave to amend
the application for judicial review within a stipulated deadline to cure the
deficiency identified above, failing which this application for judicial review
may be dismissed without further notice.
“K. Sharlow”
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