Date: 20060914
Docket: 06-A-43
Citation: 2006 FCA 302
Present: NOËL
J.A.
BETWEEN:
JAMES ALEXANDER LIVINGSTON
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
[1]
This is an
application for an extension of time to file a Notice of Appeal against an
Order of Hughes J. issued on April 19, 2006, allowing the Crown’s application
for default judgment and ordering the applicant to pay the Crown the amount of $24,922.27,
plus costs.
[2]
In resisting
the motion, the Crown argues that the applicant’s assertion that he received
copy of the Order on April 26, 2006, is a deliberate attempt on his part to
mislead the Court since the applicant signed a Notice of Appeal against the
aforesaid decision the day before, that is April 25, 2006.
[3]
The
document signed by the applicant on April 25, 2006, is a letter addressed to
the Court wherein he takes issue with the position taken by the Crown in the written
submissions made in support of the application for default judgment. The words “Notice
of Appeal” appear nowhere, and there is no reference in the letter to a prior
judgment. Indeed, the document was treated by the Court as a late submission
directed against the Crown’s motion for default judgment. Hughes J. agreed to
consider the letter despite the fact that it was filed out of time and on May
1, 2006, he issued a further Order (improperly labelled as a Direction) in
which he acknowledged the applicant’s late submission and confirmed that his
earlier decision would stand.
[4]
If
anything, the fact that this letter makes no reference to a prior decision,
supports the applicant’s contention that he was not aware of Hughes J’s
original decision when he wrote it. Based on the record as presently
constituted, the Crown’s allegation that the applicant misled the Court in
stating that he received the decision on April 26, 2006 − since his
letter of April 25, 2006, “appealing that decision” was written the day before −
is groundless and should not have been made particularly when regard is had to
its highly prejudicial nature (Reference is made to the Crown’s motion record,
at pages 12 and 13, paragraphs 42 to 46).
[5]
It is also
apparent from the foregoing that the decision which the applicant should seek
to appeal is not the decision of April 19, 2006, but that of May 1, 2006, since
it is clear that by the latter, Hughes J. agreed to reconsider his earlier
decision in light of the applicant’s late submission, and that he decided on
May 1, 2006 to maintain the earlier decision. As such, the decision which the
applicant must overcome is not the decision of April 19, 2006, which was
obtained on the basis of the Crown’s submissions only, but the decision of May
1, 2006, which was rendered after taking into account the applicant’s position.
[6]
For these
reasons, the application for an extension of time to file a Notice of Appeal
against the decision of April 19, 2006 is denied with leave to file a fresh
application to extend the time to appeal the decision rendered May 1, 2006. The
parties will assume their respective costs.
"Marc
Noël"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 06-A-43
STYLE OF CAUSE: JAMES
ALEXANDER LIVINGSTON and HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR ORDER BY: NOËL J.A.
DATED: September 14, 2006
WRITTEN REPRESENTATIONS BY:
|
JAMES A. LIVINGSTON
|
FOR THE APPELLANT /
APPLICANT
|
|
SHARON
McGOVERN
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
JAMES A. LIVINGSTON
GUELPH, ONTARIO
|
FOR THE APPELLANT /
APPLICANT
|
|
JOHN H. SIMS
TORONTO, ONTARIO
|
FOR THE RESPONDENT
|
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