Date: 20050617
Docket: A-455-04
A-456-04
Citation: 2005 FCA 232
CORAM: NOËL J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
AIKHON OBEAHON
Appellant
and
ATTORNEY GENERAL OF CANADA (AGC)
Respondent
and
CANADA POST
Respondent
Heard at Ottawa, Ontario on June 15, 2005.
Judgment delivered at Ottawa, Ontario on June 17, 2005.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: NOËL J.A.
SEXTON J.A.
Date: 20050617
Docket: A-455-04
A-456-04
Citation: 2005 FCA 232
CORAM: NOËL J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
AIKHON OBEAHON
Appellant
and
ATTORNEY GENERAL OF CANADA (AGC)
Respondent
and
CANADA POST
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] These are two appeals of Federal Court orders dated August 4, 2004. One order dismissed with costs (fixed at $200) Mr. Obeahon's application for an extension of time to file an application for judicial review of a decision made by the Canadian Human Rights Commission not to deal with his complaint against Canada Post. The other order granted the Crown's motion to strike the Attorney General of Canada as a respondent to that application.
[2] Mr. Obeahon's human rights complaint is set out in a letter dated August 16, 2003. He alleges wrongful interference with his mail service. By letter dated February 19, 2004, the Commission advised Mr. Obeahon that it would not proceed with the complaint because the acts complained of occurred more than one year before the filing of the complaint.
[3] It appears that Mr. Obeahon contacted the Registry of the Federal Court for information on how to file an application for judicial review. A registry officer sent him the required information by letter dated March 3, 2004. He was referred to section 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, which reads as follows:
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18.1 (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
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18.1 (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
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[4] The record does not indicate when Mr. Obeahon received the Commission's February 19, 2004 letter. However, it appears that he submitted a document entitled "application for judicial review" to the Federal Court by mail on March 16, 2004. The document was received at the Registry on March 17, 2004. It was not accepted for filing because it did not conform to Rule 301 of the Federal Courts Rules, 1998, SOR/98-106. It was returned to him, with the filing fee.
[5] On April 21, 2004, Mr. Obeahon attempted to file a motion for an extension of time. The material he filed in that attempt did not conform to the Rules. The matter was referred to a prothonotary, who directed that the material be returned to Mr. Obeahon, with the filing fee. That was done on May 27, 2004.
[6] By notice of motion dated June 24, 2004, Mr. Obeahon made another attempt to seek an extension of time. His material was accepted for filing. He had named as respondents Canada Post and the Attorney General of Canada.
[7] A judge of the Federal Court dismissed his motion for an extension of time. Her reasons are set out in the order dismissing the motion, which read in part as follows:
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1. Contrary to the assertions of the Applicant, the deadline of March 9 [sic], 2004 for filing his application for judicial review was not met when he submitted a deficient application record on March 17, 2004. Since the Applicant subsequently failed to file his application in the form required by the Federal Court Rules, 1998, within 30 days of the receipt of the decision of the Canadian Human Rights Commission, a motion for an extension of time was required.
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2. In seeking an extension of time, the Applicant must demonstrate that he had a reasonable explanation fo [sic] the delay in filing and that his application raises an arguable case. The Applicant has not met either of these requirements. His reasons for the delay in filing are inadequate; lack of knowledge of the Courts' Rules does not justify an extension of time. Secondly, the Applicant made no submission on the arguable case of his application. Accordingly, his motion for an extension of time will be denied.
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[8] Mr. Obeahon argues that his application for judicial review should be treated as having been made on time, since his first effort to challenge the decision of the Commission occurred well within the 30 day period. This argument is based on a misapprehension of the law. An attempt to file an application for judicial review that is correctly rejected because of a substantial deficiency in the documents cannot be treated as though the application for judicial review had been accepted for filing.
[9] Mr. Obeahon suggested in argument that the deadline for commencing his application for judicial review was not 30 days from February 19, 2004 (the date of the letter from the Canadian Human Rights Commission), but 30 days from some later date on which he actually received that letter by mail. There are two difficulties with that argument. First, the record does not disclose when he received it. Second, even if the letter reached him ten days after February 19, 2004 (say, on March 1, 2004), he still had not filed a valid application for judicial review by March 31, 2004.
[10] In this case, the form of application for judicial review submitted by Mr. Obeahon in March of 2004 did not contain the mandatory information set out in Form 301. The most important omission is that no respondent was named. That is a substantial omission that justified the Registry in refusing to accept the document for filing. The judge was correct to find that Mr. Obeahon's application for judicial review could not be commenced without an order granting an extension of time.
[11] The judge was also correct to conclude that Mr. Obeahon had not met two of the tests for an extension of time. First, he failed to provide a satisfactory explanation for his delay. Second, he failed to establish the existence of an arguable case.
[12] Finally, the judge was correct to conclude that the Attorney General of Canada should not have been named as a respondent. The provision for naming respondents in an application for judicial review is Rule 303, which reads as follows:
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303. (1) Subject to subsection (2), an applicant shall name as a respondent every person
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303. (1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur :
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(a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or
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a) toute personne directement touchée par l'ordonnance recherchée, autre que l'office fédéral visé par la demande;
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(b) required to be named as a party under an Act of Parliament pursuant to which the application is brought.
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b) toute autre personne qui doit être désignée à titre de partie aux termes de la loi fédérale ou de ses textes d'application qui prévoient ou autorisent la présentation de la demande.
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(2) Where in an application for judicial review there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent.
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(2) Dans une demande de contrôle judiciaire, si aucun défendeur n'est désigné en application du paragraphe (1), le demandeur désigne le procureur général du Canada à ce titre.
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(3) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent after having been named under subsection (2), the Court may substitute another person or body, including the tribunal in respect of which the application is made, as a respondent in the place of the Attorney General of Canada.
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(3) La Cour peut, sur requête du procureur général du Canada, si elle est convaincue que celui-ci est incapable d'agir à titre de défendeur ou n'est pas disposé à le faire après avoir été ainsi désigné conformément au paragraphe (2), désigner en remplacement une autre personne ou entité, y compris l'office fédéral visé par la demande.
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[13] Canada Post, as the subject of Mr. Obeahon's complaint, would have been directly affected by the order sought in Mr. Obeahon's application. Therefore, Canada Post was a proper respondent. There is no statutory provision requiring the Attorney General of Canada to be named as a respondent as well.
[14] Mr. Obeahon is seeking $20,000 from the respondents for the costs he has incurred in attempting to initiate his application for judicial review. The record discloses no basis for such an award of costs.
[15] For these reasons, these appeals will be dismissed.
[16] The Attorney General of Canada has not asked for costs of this appeal, but Canada Post has. The record discloses no basis for departing from the usual rule that an unsuccessful appellant may be liable for costs of the appeal, if requested by the respondent. For that reason, an order will be made awarding costs of this appeal to Canada Post.
"K. Sharlow"
J.A.
"I agree
Marc Noël J.A."
"I agree
J. Edgar Sexton J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-455-04
A-456-04
APPEAL FROM THE ORDERS OF THE FEDERAL COURT DATED AUGUST 14, 2004 ( DOCKET NO. 04-T-28)
STYLE OF CAUSE: Aikhon Obeahon v. Attorney General of Canada et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 15, 2005
REASONS FOR JUDGMENT: Sharlow J.A.
CONCURRED IN BY: Noël J.A.
Sexton J.A.
DATED: June 17, 2005
APPEARANCES:
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Mr. Aikhon Obeahon
Etobicoke, Ontario
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ON HIS OWN BEHALF
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Mr. Kris Klein
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FOR THE RESPONDENT
(AGC)
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Mr. Chris Meaney FOR THE RESPONDENT
(Canada Post)
SOLICITORS OF RECORD:
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Mr. Aikhon Obeahon
Etobicoke, Ontario
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ON HIS OWN BEHALF
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Mr. John H. Sim, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
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FOR THE RESPONDENT
(AGC)
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Mr. Chris Meaney FOR THE RESPONSDENT
Counsel Legal Affairs (Canada Post)
Canada Post
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