Date: 20111115
Docket: A-280-10
Citation: 2011 FCA 310
Present: STRATAS
J.A.
BETWEEN:
WALTER PATRICK TWINN, THE COUNCIL OF THE
SAWRIDGE BAND and THE SAWRIDGE BAND
Appellants
and
ELIZABETH
BERNADETTE POITRAS
Respondent
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
As represented by THE MINISTER OF INDIAN
AFFAIRS
AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
Before
this Court are two motions in this matter. The first, brought by the
appellants, seeks an extension of time for the filing of a requisition for
hearing. The second, brought by the respondent Crown seeks an order dismissing
the appeal for delay. As the two motions raise substantially similar issues,
they shall be considered together.
[2]
The
appellants filed their notice of appeal on July 29, 2010. This appeal remains
unperfected.
[3]
On
February 2, 2011, this Court issued a notice of status review. The appellants
filed detailed submissions explaining the delay and proposing a schedule for
the remaining steps of the appeal. This Court allowed the appeal to continue
and set a schedule. This was over the objection of the Crown.
[4]
Under the
schedule set by this Court, the appellants were to have filed their requisition
for hearing on June 20, 2011. They failed to do so. The appellants failed to
do so because they attempted to file a reply memorandum of fact and law,
something that is permitted only by way of motion establishing special circumstances.
No such motion was brought. Accordingly, this Court ordered that the reply
memorandum should not be accepted for filing. By the time this Court made its
order, the June 20, 2011 deadline had passed.
[5]
It was not
until August 9, 2011 that the appellants attempted to file the requisition for
hearing. This Court rejected the proposed filing as it was out of time. A week
later, the appellants brought a motion for an extension of time to file the
requisition for hearing. On September 2, 2011, this Court ordered that the
appellants had until September 30, 2011 to file their requisition for hearing.
[6]
In the
circumstances, this was a fairly generous deadline for the appellants to file a
document that they had already prepared. But the appellants failed to meet even
that deadline. So now the appellants have had to bring a motion for a further
extension of time to file the requisition for hearing.
[7]
In support
of their motion, the appellants file an affidavit from the legal assistant of
the appellants’ lawyer of record, who is also acting on these motions. Portions
of the legal assistant’s affidavit are based on “advice” from this lawyer. In
effect, this lawyer is offering evidence – acting as a witness – on a motion on
which he is also acting as counsel.
[8]
The
portions of the affidavit based on the lawyer’s “advice” are inadmissible. A
person cannot act as a witness and a lawyer at the same time: Federal Court
Rules, SOR/98-106, Rule 82. The proper practice for a lawyer who has to
give evidence is to have another lawyer act as counsel on the motion. Often it
is acceptable for another lawyer in the firm to serve as counsel on the motion:
Polaris Industries Inc. v. Victory Cycle Ltd., 2007 FCA 259, (2007), 60
C.P.R. (4th) 194. After the motion, it is usually the case that the lawyer who
swore the affidavit for the motion can represent the client in future motions
and the hearing on the merits: Viacom Ha! Holding Co. v. Jane Doe, 2002
FCT 13 at paragraph 10.
[9]
Fortunately
for the appellants, the explanation offered for the failure to file the
requisition for hearing is based on the direct, first-hand, admissible evidence
of the legal assistant. It is apparent that arrangements were made for the
requisition for hearing to be filed by September 30, 2011, but this did not
happen. The probable reason was confusion on the part of the person who was
supposed to file the requisition for hearing. The confusion arose from the fact
that another filing was to have been made by September 30, 2011 and that
filing, mistakenly, was thought to have been the relevant filing in this Court.
[10]
Approximately
two weeks later, the appellants’ lawyer learned that the requisition for
hearing had not been filed in time. On the same day, he wrote the Crown
explaining the situation. Shortly afterward, he caused the appellants to move
for another extension of time to file the requisition for hearing.
[11]
The Crown
opposes the appellant’s motion. It notes that this is the second time that the
appellants have failed to serve their requisition for hearing in time. It
contends that the explanation offered for the failure is unacceptable. In
particular, the Crown cites authority for the proposition that inadvertence is
not an acceptable explanation for delay: Canada (Attorney General) v. Hennelly, (1995), 91 F.T.R. 317
(F.C.T.D.), aff’d (1999), 167 F.T.R. 158 (F.C.A.).
[12]
In Hennelly,
the Court of Appeal said that it would not interfere with the motions judge’s
fact-based assessment that the explanation offered was inadequate. In my view,
properly read, Hennelly does not abolish inadvertence as a possible
reason to forgive delay.
[13]
Inadvertence
is never desirable. But inadvertence comes in all shapes and sizes, sometimes
forgivable, sometimes not. When presented with inadvertence as the reason for
delay, the Court must consider it in light of the applicable legal tests and
all of the surrounding factual circumstances. In this regard, I agree with the
words of Prothonotary Tabib in Footlocker Group Canada Inc. v. Steinberg,
2003 FCT 602, (2003), 26 C.P.R. (4th) 572 at page 575:
Inadvertence may take many forms and each
must be considered on its own merits. As well, the circumstances of each case
play an important role in the Court's assessment of whether an inadvertent
error can be excused.
[14]
In this
case, one submission made by the Crown is particularly powerful. The Crown
observed that on September 2, 2011 this Court gave the appellants a generous
period of time – 28 days – in which to file a requisition for hearing that had
already been prepared. It could have been filed by fax or mail, or walked down
the street to the Court’s office: Rule 71(1). Evidently, the filing was only
attempted at the very end of this generous period.
[15]
The Crown
also points to the history of delay in this matter. That history includes a notice
of status review, a court-ordered schedule resulting from the status review, a
breach of that schedule, a contested motion over the breach, this Court’s
willingness to forgive that breach, and the Crown’s willingness to contest
every delay by the appellants. In these circumstances, one would have thought
that the filing of the requisition for hearing would have been carried out as
soon as possible.
[16]
Against
this are several factors in favour of the granting of an extension of time to
file the notice of requisition: the absence of evidence of real prejudice to
the Crown, the consent of the respondent Poitras, the fact that the appeal has
otherwise been perfected, the fact that the requisition for hearing had been
served in time and only the filing was late, the plausibility of the evidence
of confusion as a reason why lateness happened, the evident good faith by the
appellants’ counsel as shown by the prompt reporting of the mistake to the
Crown, the acceptability of the explanations for delay presented to this Court
on two prior occasions, the absence of any changed circumstances that would
render those explanations inadequate today, and the earlier findings by this
Court that the appellants have a case that is sufficiently arguable to warrant
the granting of extensions of time.
[17]
On
balance, I exercise my discretion in favour of the appellants. The appellants
have until November 18, 2011 to serve and file the requisition for hearing with
proof of service, failing which the appeal will be dismissed without further
notice to the appellants.
[18]
The
Crown’s motion for dismissal on account of delay was triggered by this most
recent incident of delay. Given my decision to grant the appellants an
extension of time to file their requisition for hearing despite this most
recent incident, I dismiss the Crown’s motion for dismissal for delay.
[19]
The
appellants have been successful on both motions. However, this is a rare
instance where costs should not follow the result. Under Rule 3, this Court is
obligated to interpret and apply the Rules “so as to secure the just, most
expeditious and least expensive determination of every proceeding on its
merits.” The motions were prompted by mistakes and oversights that have delayed
and driven up the costs of this appeal. By dismissing these motions, this Court
is vindicating the principle that it is desirable that, where permitted by our
legal tests and where justified by the circumstances, appeals should be
determined on their merits. But, in the unusual circumstances of this case, the
principles of expedition and minimization of expense must also be vindicated.
[20]
In the
circumstances, a sanction is warranted and shall be imposed. Costs for both
motions shall be awarded to the Crown in any event of the cause. The costs for
each motion shall be calculated with reference to the top end of column IV of
Tariff B.
“David Stratas”
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