Date: 20050218
Docket: A-61-05
Citation: 2005 FCA 74
PRESENT: NOËL J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
MARIE TAYLOR
Respondent
Heard by way of teleconference, on February 18, 2005.
Order delivered at Ottawa, Ontario, on February 18, 2005.
Date: 20050218
Docket: A-61-05
Citation: 2005 FCA 74
PRESENT: NOËL J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
MARIE TAYLOR
Respondent
REASONS FOR ORDER
NOËL J.A.
[1] The Court is asked to stay a decision of the Pension Appeal Board (the Board) denying the applicant a request for an adjournment pending the hearing of a judicial review application filed with respect to the aforesaid decision.
[2] The hearing before the Board is set to begin in Toronto on Monday, February 21, 2005, and last four days. It was scheduled in conformity with a notice of hearing issued December 15, 2005. The decision denying the adjournment was made February 14, 2005, and the judicial review application was filed February 15, 2005.
[3] The following day, February 16, 2005, the applicant advised that it would seek to stay the decision of the Board pending the hearing of the judicial review.
[4] The parties were advised on February 17, 2005 that the stay application would be heard on an urgent basis Friday, February 18, 2005 at 12:00 by way of telephone conference.
[5] In support of its motion, the applicant submits in essence that going ahead with the hearing will result in one or more breach of natural justice as the applicant is not ready to proceed at this stage having regard to what the applicant qualifies as the unexpected contents of evidence filed by the respondent on February 7, 2005.
[6] It is apparent from the motion's material filed by the applicant and the order sought that it is asking this Court to grant the very remedy which the Board refused to grant, namely the adjournment of the scheduled hearing. As such, this is not truly a stay application, but an attempt to obtain the immediate reversal of the decision that is the subject matter of the judicial review, a remedy which I cannot provide as a single judge (see section 16 of the Federal Courts Act).
[7] In any event, it appears to me that the applicant in asserting irreparable harm is anticipating breaches of natural justice which have yet to occur.
[8] If the hearing proceeds as scheduled, it remains open for the applicant to bring one or more motions to be permitted to call an additional witness in reply to Dr. Delziel's report and to file further evidence with respect to Mr. Brown's report at a time to be agreed to, or set by the Board. It is also open to the applicant to move to have Ms. Westlake testify at a later date if her non-availability for the scheduled hearing can be explained.
[9] On the other hand, the respondent is justified in her desire to proceed having regard to the expenses which would be lost to her without possibility of compensation, if the matter was adjourned.
[10] The motion will be dismissed which the costs which the Court fixes at $2,000.
"Marc Noël"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-61-05
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT v. MARIE TAYLOR
MOTION HEARD BY TELECONFERENCE
PLACE OF HEARING: OTTAWA, ONTARIO
DATED: FEBRUARY 18, 2005
REASONS FOR ORDER BY: NOËL J.A.
APPEARANCES:
Ms. Florence Clancy FOR THE APPLICANT
Mr. David Baker FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Bakerlaw FOR THE RESPONDENT
Toronto, Ontario
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