Docket: T-1122-16
Citation:
2017 FC 343
[ENGLISH
TRANSLATION]
Montréal, Quebec, April 5, 2017
PRESENT: The
Honourable Madam Justice St-Louis
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BETWEEN:
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LE CONSEIL DES
INNUS DE PESSAMIT
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Plaintiff (Respondent)
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and
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YAN RIVERIN
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Defendant (Appellant)
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JUDGMENT AND REASONS
I.
Introduction
[1]
Mr. Yan Riverin filed an appeal of the order
made by Prothonotary Morneau [the Prothonotary] on February 7, 2017, rejecting
his motion to attack irregularity.
[2]
This proceeding is part of the larger effort of
the application for judicial review submitted by the Conseil des Innus de
Pessamit [the Conseil] to contest the arbitration award that invalidated Mr.
Yan Riverin’s termination.
[3]
As part of this application for judicial review,
on December 6, 2016, the Prothonotary issued an order that stipulated the
timeline that the parties had to observe. In particular, this order stipulated
that the Conseil had to serve and file its application record under rule 309 of
the Federal Court Rules, SOR/98-106 [the Rules] on or before
January 16, 2017, which the Conseil failed to do.
[4]
On January 17, 2017, Mr. Riverin submitted a
motion to attack irregularity under rules 58 and 59, asking that the Conseil’s
notice of application for judicial review be dismissed and the proceeding be set
aside.
[5]
In response to this motion to attack
irregularity, the Conseil asked the Prothonotary to be relieved of its failure
for not serving and filing its application record by no later than January 16,
2017.
[6]
On February 7, 2017, the Prothonotary dismissed
Mr. Riverin’s motion to attack irregularity and, invoking rules 3 and 53(2),
allowed the Conseil to file its application record under rule 309. The
Prothonotary also indicated that if this record had not already been served by
the Conseil, it should be served on or before February 13, 2017, and that the
timeline in rule 310 for serving and filing the respondent’s record should
start on February 15, 2017.
[7]
As a result, Mr. Riverin filed an appeal of the
Prothonotary’s decision, essentially arguing (1) that he ruled ultra petita;
and (2) that his decision was unfair.
[8]
In short, the Court was not convinced that the
Prothonotary made an incorrect decision, or that he made a palpable and
overriding error, and will therefore dismiss the appeal.
II.
Position of the parties
[9]
Mr. Riverin submitted two arguments before this
Court. First, he argues that the Prothonotary ruled ultra petita, as no
application for extension of time was validly submitted to him by the parties.
Indeed, the Prothonotary cannot extend the deadline in the absence of an
application for that purpose, and the application that the Conseil made in its
motion record to the motion to attack irregularity does not constitute such a
motion for extension of time. In particular, Mr. Riverin referred to rule 47 and
Nowoselsky v. Canada (Treasury Board), 2004 FCA 418 [Nowoselsky].
[10]
Rule 47 stipulates:
47(1) Unless otherwise provided by these
Rules, if these Rules grant a discretionary power to the Court, a judge or
prothonotary has jurisdiction to exercise that power on his or her own
initiative or on motion.
(2) Where these Rules provide that powers of
the Court are to be exercised on motion, they may be exercised only on the
bringing of a motion.
[11]
Whereas paragraph 7 of Nowoselsky
provides:
7 Rule 8(1) provides that the Court may, on
motion, extend or abridge a period provide by the Rules or fixed by an order.
Rule 47(2) says that where the Rules provide that the powers of the Court are
to be exercised on motion, they shall only be exercised on motion. The effect of
these two Rules is that the Court cannot overcome the absence of a motion
seeking an extension of time by acting on its own motion. The Motions Judge
could not proceed in the absence of a Notice of Motion seeking an extension of
time.
[12]
Second, Mr. Riverin submits that the Prothonotary’s
decision is unfair, since Mr. Riverin had taken for granted throughout the
proceedings that timelines had to be respected, whereas the Conseil was able to
plead the occurrence of a controllable event to obtain an extension of time,
referring here to Chin v. Canada (Minister of Employment and Immigration),
[1993] FCJ 1033.
[13]
The Conseil responds that the Prothonotary did
not rule ultra petita because (1) rules 3 and 53(2) allow him to decide
as he did; and (2) the Prothonotary did not extend the timelines, but solely
authorized the filing of the applicant’s record, as it had already been
produced at the registry.
[14]
Rules 3 and 53(2) provide the following,
respectively:
3 These Rules shall be interpreted and
applied so as to secure the just, most expeditious and least expensive
determination of every proceeding on its merits.
53(2) Where these Rules provide that the
Court may make an order of a specified nature, the Court may make any other
order that it deems just.
III.
Standard of review for the Prothonotary’s
decision
[15]
Mr. Riverin’s arguments raise the following two
questions:
1.
Did the Prothonotary rule ultra petita?
2.
Is the Prothonotary’s decision unfair?
[16]
The parties did not explicitly refer to the
applicable standard of review for the issues in dispute, but the Court must
nevertheless confirm it.
[17]
The Federal Court of Appeal recently determined
that our Court must review discretionary decisions by a prothonotary, in
accordance with the standard developed by the Supreme Court of Canada in Housen
v. Nikolaisen, 2002 SCC 33. Thus, “with respect to
factual conclusions reached by a trial judge, the applicable standard was that
of palpable and overriding error. It also stated that with respect to questions
of law and questions of mixed fact and law, where there was an extricable legal
principle at issue, the applicable standard was that of correctness” (Hospira
Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215
at para 66).
[18]
Thus, the question of determining whether the Prothonotary
ruled ultra petita constitutes a question of law that requires the
application of the standard of correctness. Furthermore, the question of determining
whether the Prothonotary’s decision is fair or not constitutes a question of
mixed fact and law that results in the application of the standard of palpable
and overriding error. In this regard, the Federal Court of Appeal, in Manitoba
v. Canada, 2015 FCA 57, echoed what was stated in Canada v. South Yukon
Forest Corporation, 2012 FCA 165, at para 46, to describe the nature of a
palpable and overriding error in these terms:
Palpable and overriding error is a highly deferential
standard of review. “Palpable” means an error that is obvious. “Overriding”
means an error that goes to the very core of the outcome of the case. When
arguing palpable and overriding error, it is not enough to pull at leaves and
branches and leave the tree standing. The entire tree must fall. [References
omitted.]
IV.
Analysis
A.
Question 1: Did the Prothonotary rule ultra petita?
[19]
Mr. Riverin refers to rule 8(1), which
stipulates that “On motion, the Court may extend
or abridge a period provided by these Rules or fixed by an order”
(emphasis added), to argue that [translation] “the
Prothonotary’s decision was ultra petita”. Mr. Riverin invokes
the argument of ultra petita to argue that the Prothonotary decided
beyond what was asked of him, since the application for extension of time
submitted by the Conseil was invalid and the situation was therefore akin to
one in which no application for extension was submitted.
[20]
Mr. Riverin refers to Nowoselsky, supra.
However, in Mazhero v. Fox, 2011 FC 392, Tremblay-Lamer J. rather
distinguished that decision from the situation in dispute as follows:
9 The respondent points to the Federal
Court of Appeal’s decision in Nowoselsky v. Canada (Treasury Board),
2004 FCA 418, 329 NR 238 (Nowoselsky) for the proposition that a request
for extension of time can only be brought under the FCR by way of a motion. It
is true that the Federal Court of Appeal indicated in Nowoselsky that
the effects of Rules 8(1) and 47(2) of the FCR is that: “The Court cannot
overcome the absence of a motion seeking an extension of time by acting on its
own motion”. However, the current matter is distinguishable. In Nowoselsky,
the applicant failed, altogether, to request an extension of time for filing
his appeal. In the current matter, although the applicants did not submit a
formal Notice of Motion requesting an extension of the deadline set out in
Prothonotary Aronovitch’s September 17th Order, they did provide a written
request, a copy of which was provided to the respondent.
[21]
In the case at hand, and in accordance with the
aforementioned jurisprudence, the Prothonotary granted the extension of time
not on his own initiative, but rather in response to an application by Conseil
for that purpose, an application that was in the motion record to the motion to
attack irregularity.
[22]
In addition, rule 59(b) expressly provides that,
when the Court finds that a party has not complied with a motion submitted
under rule 58, it may “grant any amendments required to
address the irregularity”.
[23]
Thus, although the Conseil did not submit a
motion for extension of time in due form, it nevertheless requested the
extension of time so that it could file its application record. The
Prothonotary did not err in considering the Conseil’s application, his decision
was not incorrect, and therefore the Court will dismiss this argument.
B.
Question 2: Is the Prothonotary’s decision
unfair?
[24]
The Court must then decide if the Prothonotary’s
decision is unfair, as Mr. Riverin claims. As previously indicated, the
applicable standard of review in the case at hand is that of palpable and
overriding error.
[25]
The Prothonotary accepted the Conseil’s
explanation that its lateness and failure to file its application record by
January 16, 2017, was due to an administrative error. An administrative
assistant at its attorneys’ office who was dealing with personal problems
recorded the deadline as January 23 instead of January 16, 2017.
[26]
The Prothonotary considered that it would have
been in the interest of justice and the progress of this case for Mr. Riverin’s
attorneys to grant the Conseil more time to request an extension of time. The
Prothonotary noted the fact that it was the Conseil’s second failure to comply
with a deadline, and described the remedies sought by Mr. Riverin as being “severe” and “far too drastic”
for a motion to attack irregularity.
[27]
Although rule 59(c) provides for the Court’s
power to set aside a proceeding, rule 59(b) provides the Court with
discretionary power to grant the amendments required to address the
irregularity. The Prothonotary could therefore determine that the Conseil’s
motion record contained explanations that were plausible and reasonable enough
for him to allow the Conseil to file its application record (CP Ships
Trucking Ltd v. Kuntze, 2006 FC 215 at para 9; 2006 FC 1174 at para 90).
[28]
The Court cannot conclude that this
determination is marred by a palpable and overriding error, nor that it is unfair.
JUDGMENT
THE COURT ADJUDGES that:
1.
The appeal is dismissed;
2.
All without costs.
“Martine St-Louis”
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