Date: 20110708
Docket: A-27-11
Citation: 2011 FCA 222
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
STRATAS
J.A.
BETWEEN:
KENNETH HAMMOND
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LÉTOURNEAU J.A.
The nature of this proceeding
[1]
The appellant,
who is an inmate in a federal institution, seeks an Order for an extension of
time to file a motion for an Order to have the Court Administrator prepare the
appeal book under Rule 343(5) of the Federal Courts Rules (Rules).
The history of this proceeding
a) The first motion for an extension of time
[2]
On October
8, 2010, Lemieux J. of the Federal Court denied the appellant a motion for an
extension of time to file an application for judicial review of a third level
grievance decision rendered on June 16, 2010 by the Correctional Service of
Canada. The motion to Lemieux J. was made nearly two months after the impugned
decision was rendered. Lemieux J. dismissed the appellant’s motion on the
ground that he was not satisfied that the application for judicial review had
some merit. The third level grievance decision related to the seizure of the
appellant’s computer following the installation of unauthorized programs on it.
b) The second motion for an extension of time
[3]
On
December 1, 2010, the appellant filed an extension of time to file a Notice of
Appeal against the decision of Lemieux J. The motion was granted by Mainville
J.A. and the time to file the Notice of Appeal was extended to January 31,
2011.
c) The third motion
for an extension of time to file a motion to have the administrator prepare the
appeal book
[4]
According
to Rule 343(3) of the Rules, an agreement as to the content of the appeal book
should have been filed by February 28, 2011. The present motion for an
extension of time to file a motion to have an administrator determine the
content of the appeal book was served on the respondent on June 15, 2011, more
than three and a half months after the time allocated by Rule 343(3).
Whether this third motion should be
granted and the appeal should be allowed to continue
[5]
Beyond a
general statement from the appellant that he had no intention to cause delay,
the fact is that a substantial delay of over four months occurred between the
beginning of February 2011 and June 2011. The appellant provides no account of
any positive steps that he had or would have taken to move the appeal forward
during that period.
[6]
Nor does
he provide any timetable to make it up to past delays and ensure that his
appeal will be prosecuted diligently if he were to be granted the requested
extension of time.
[7]
Counsel
for the respondent submits that the appeal has no merit and should be dismissed
on that ground as well. I am not seized with an application for an extension of
time to file an application for judicial review, in which case it is proper to
look at whether the appeal has a reasonable chance of success. The extension of
time in this case has been granted by my colleague Mainville J.A. and I am not
sitting on appeal from his decision. I do not think it would be appropriate on
a motion for an extension of time to file a motion for an Order to have the
Administrator prepare the content of the appeal book to second-guess whether
the appeal has a reasonable chance of success.
[8]
However, I
am greatly concerned by the delay in prosecuting this appeal aimed at simply
obtaining the authorization to begin a review of a decision already rendered
more than a year ago. The appeal is still only at an infancy stage.
[9]
Moreover,
further delay is bound to result from the fact that the appellant is now
self-represented and there is no agreement between the parties as to the
contents of the appeal book. Without proper information and submissions on this
issue, I am not in a position to determine the content of the appeal book, let
alone order the Administrator to prepare it.
[10]
Bearing in
mind the nature of the issue raised before Lemieux J., the subject matter of
this pending appeal (i.e. a discretionary refusal by Lemieux J. to grant an
extension of time to file an application for judicial review), the unjustified
and unexplained failure to prosecute the appeal diligently, the lack of
guarantees of future compliance with the time limits set up by the Rules and
the amount of judicial time and expenses already spent with so little progress
in the prosecution of the appeal, I believe the interests of justice would be
best served by a refusal of the motion and a dismissal of the appeal.
Conclusion
[11]
For these
reasons, I would dismiss the motion for an extension of time to file a motion
for an Order to have the Administrator prepare the content of the appeal book
and I would dismiss the appeal.
“Gilles Létourneau”
“I
agree
M. Nadon J.A.”
“I
agree
David
Stratas J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-27-11
STYLE OF CAUSE: KENNETH
HAMMOND v.
THE ATTORNEY GENERAL OF CANADA
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
CONCURRED IN BY: NADON
J.A.
STRATAS J.A.
DATED: July 8, 2011
WRITTEN
REPRESENTATIONS BY:
|
Kenneth Hammond
|
SELF-REPRESENTED
|
|
Sarah Stanton
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
|
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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