Date:
20080221
Docket: A-341-07
Citation: 2008
FCA 70
Present: SHARLOW J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
NANCY
HRYCIW
Respondent
Dealt with in writing without
appearance of parties.
Order delivered at Ottawa, Ontario, on February
21, 2008.
REASONS
FOR ORDER BY: SHARLOW
J.A.
Date:
20080221
Docket: A-341-07
Citation: 2008 FCA 70
Present: SHARLOW J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
NANCY HRYCIW
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
Before
me is a motion in relation to an application by the Crown for judicial review
of a decision of the Pension Appeals Board granting the respondent Nancy Hryciw
a disability pension under the Canada Pension Plan, R.S.C. 1985, c. C-8.
Ms. Hryciw seeks an order extending the time for filing her affidavit and her
record. The Crown’s affidavit and record were filed on time.
[2]
The
Crown opposes the motion on the basis that Ms. Hryciw has satisfied none of the
factors traditionally considered in a motion to extend time. There is no
evidence of a continuing intention on the part of the respondent to oppose this
application. There is nothing upon which to assess, even on tentative basis,
the merits of her position on the application. There is no reasonable
explanation for the delay. The excuse offered is the inadvertence of counsel, but
no explanation is offered for her error.
[3]
The
Crown claims to be prejudiced by the delay, but that claim really amounts to a
complaint that if the extension is granted, Ms. Hryciw will have had more time
to prepare than the Crown. That complaint could be valid if, for example, Ms.
Hryciw is proposing to file an affidavit containing evidence that is not
already on the record, although any prejudice from that could be remedied by
permitting cross examination on the affidavit or permitting the Crown to amend
its memorandum of fact and law. Ms. Hryciw’s motion record does not include a
draft of the affidavit or the record she proposes to file, although it
indicates they are both ready to be filed.
[4]
The
Crown has established a basis upon which Ms. Hryciw’s motion for an extension
of time could be dismissed. However, I must also consider the difficult
position of the Court when an application is heard without submissions from counsel
for the respondent. In this case, unless Ms. Hryciw is permitted to file
at least a memorandum of fact and law, her counsel may not be permitted to make
oral submissions at the hearing. Even if the panel hearing the application decides
in its discretion to permit Ms. Hryciw’s counsel to make oral submissions,
neither the Court nor the Crown will have advance notice of the submissions she
proposes to make.
[5]
To
assist the Court, I will grant the motion of Ms. Hryciw in part, to permit her
to file a respondent’s record containing only her memorandum of fact and law.
The costs of this motion will be borne by the respondent in any event of the
cause.
“K. Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-341-07
STYLE OF CAUSE: Attorney
General of Canada v. Nancy Hryciw
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: February 21, 2008
WRITTEN REPRESENTATIONS BY:
|
Marie-José Blais
|
FOR THE APPLICANT
|
|
Lesley C.
Tough
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE APPLICANT
|
|
Loewen Martens & Rempel
Winnipeg, Manitoba
|
FOR THE RESPONDENT
|
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