Date: 20050411
Docket: A-405-04
Citation: 2005 FCA 120
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
GAÉTAN PLANTE
Appellant
and
LUCIE McCLUNG, COMMISSIONER, C.S.C.
D. IAN GLEN, CHAIRPERSON, N.P.B.
THE HONOURABLE ANNE McLELLAN, SOLICITOR GENERAL OF CANADA
ATTORNEY GENERAL OF CANADA
Respondents
Hearing held by videoconference at Montréal, Quebec, on April 4, 2005.
Judgment delivered at Ottawa, Ontario, on April 11, 2005.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Date: 20050411
Docket: A-405-04
Citation: 2005 FCA 120
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
GAÉTAN PLANTE
Appellant
and
LUCIE McCLUNG, COMMISSIONER, C.S.C.
MR. D. IAN GLEN, CHAIRPERSON, N.P.B.
THE HONOURABLE ANNE McLELLAN, SOLICITOR GENERAL OF CANADA
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
[1] The appellant is challenging a decision by Madam Justice Tremblay-Lamer of the Federal Court, dated July 5, 2004, which dismissed his application for an extension of time for filing an application for judicial review of a decision of the National Parole Board, Appeal Section (the Appeal Section), dated December 11, 2003.
[2] Since the reasons in support of the judge's decision are stated succinctly, we must, as the appellant requests, once again exercise our judicial discretion concerning his application for an extension of time.
[3] In my opinion, the appeal must be allowed, since there is no doubt that the criteria developed by this Court in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263, concerning the extension of time, have all be met.
[4] First, since the appellant has been trying to file an application for judicial review since January 27, 2004, I am satisfied that he has shown a continuous intention to bring the application. Furthermore, I note that the appellant attempted to do so again in late February 2004 and that he attached to his motion for extension of time an application for judicial review dated March 18, 2004.
[5] Second, that fact that his attempts to file the application for judicial review were unsuccessful, owing to the formal defects of his proceedings, and the fact that he was representing himself while being held in a federal institution, explain why the appellant was unable to honour the 30-day period set out in subsection 18.1(2) of the Federal Courts Act.
[6] Third, given the evidence, I am of the opinion that it is by no means certain that the appellant's application for judicial review has no reasonable chance of success. The appellant argues that the referral of his case to the National Parole Board (the NPB) by the Correctional Service of Canada, pursuant to subparagraph 129(2)(a)(i) of the Corrections and Conditional Release Act, R.S.C., c. C-44.6 (the Act), for the purpose of obtaining an order for continued detention, is unlawful.
[7] Relying on subparagraph 129(2)(a)(i), which provides that the Correctional Service may refer the case of an offender whose offence is included in Schedule 1 of the Act (as is here the case) only when, inter alia, the commission of the offence caused the death of or serious harm to another person, the appellant argues that the Correctional Service could not refer his case to the NPB, as there was no evidence to this effect.
[8] In light of the evidence on record, I cannot find that the application for judicial review has no reasonable chance of success.
[9] Finally, the respondents raised no arguments to the effect that harm could result should the application for extension of time be granted.
[10] I am therefore of the opinion that the motion judge exercised her discretion improperly in finding that the delay in filing the application for judicial review was unexplained and that the application had no reasonable chance of success.
[11] For these reasons, I would allow the appeal with costs. I would set aside the decision of the Federal Court dated July 5, 2004; allow, with costs, the application for extension of time for the appellant to file an application for judicial review of the Appeal Section decision dated December 11, 2003; and set the costs of the appeal and the motion for extension of time, including disbursements, at $500. Finally, I would declare that the appellant's application for judicial review, dated March 18, 2004, has been validly filed with the Registry of the Federal Court, effective the day this decision is communicated to the respondents. The limitation periods set out in the Federal Court Rules shall begin to run when the respondents are notified of the present decision.
"M. Nadon"
J.A.
"I concur.
Gilles Létourneau J.A."
"I concur.
M. Noël J.A."
Certified true translation
Michael Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-405-04
STYLE OF CAUSE: G. Plante v. L. McClung et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 4, 2005
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
DATED: April 11, 2005
APPEARANCES:
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Gaétan Plante
|
THE APPELLANT, FOR HIMSELF
|
|
Dominique Guimond
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENTS
|
|
|
|
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