Federal Court Decisions

Date: 20030728

Docket: T-2279-01

Citation: 2003 FC 926

BETWEEN:

                                               CANADIAN FREIGHTWAYS LIMITED

                                                                                                                                                     Applicant

                                                                                 and

                                               ATTORNEY GENERAL OF CANADA

and WESTERN CANADA COUNCIL OF THE TEAMSTERS

                                                                                                                                            Respondents

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  Counsel are in agreement that at issue on this motion, for an extension of time within which the Attorney General of Canada might appeal Madam Justice Dawson's Order as to costs, are first, an acceptable explanation for delay and second, a prima facie case. This is an abridged form of the test set out in Canada v. Hennelly (1999), 244 N.R. 399 (F.C.A.), with prejudice and a continuing intention to pursue the application not at issue.

CONSIDERATION

An Explanation for the Delay

[2]                  Counsel for the Applicant, Canadian Freightways Limited, refers to Chin v. Canada (M.E.I.) (1993), 69 F.T.R. 77 (F.C.T.D.) at 80 for the proposition that an extension of time should be based upon some reason beyond the control of counsel. Counsel for the Attorney General of Canada refers to an earlier passage in Chin at page 79, pointing out that the issue in Chin, which was an extension of time within which to appeal, was counsel's schedule, not an instance "in which some matter which should have been dealt with was accidentally overlooked or omitted", there referring to former Rule 337(5) of the former Rules, which is now section 397(1)(b) of the 1998 Rules. Counsel for the Attorney General submits that what happened here was an overlooking or oversight of the possibility of an award of costs being made against the Attorney General, who neither consented to nor opposed the case, but merely did not attend when it was heard. The difficulty with this approach is that to come within Rule 397(1)(b) and thus become eligible for the reconsideration process the oversight must be that of the Court, not a party: see example Boateng v. Canada (M.E.I.) (1990), 112 N.R. 318 at 319, a decision of the Federal Court of Appeal.

[3]                  The appropriate approach may be not Rule 397, but rather Rule 399(2)(a), a variation of an order "by reason of a matter that arose or was discovered subsequent to the making of the order; ...". The concept of a relevant new matter is broad: it is not confined to fresh evidence and here I have in mind cases such as Saywack v. Canada (M.E.I.), [1986] 3 F.C. 189 (F.C.A.), Zolfigar v. Canada (M.C.I.) (1998), 48 Imm. L.R. (2d) 149 (F.C.T.D.) and Canada (M.E.I.) v. Chung, [1993] 2 F.C. 42 (F.C.A.) which all stand for the proposition that an applicant seeks to vary an order, under this provision of the Rules, must show that the new matter discovered subsequent to judgment must be one that could not, with reasonable diligence, have been discovered sooner. This concept is circumscribed by Jebanayagam v. Canada (M.E.I.) (1995), 30 Imm. L.R. (2d) 194 (F.C.T.D.) in which Mr Justice Muldoon denied relief where the applicant sought to set aside the whole order. Mr Justice Muldoon objected to such a boot-strapping approach by which an order would be characterized as a matter arising subsequent to its own making, particularly when the initial loss of the case came about by reason of counsel being ill-prepared. The present situation differs from that in Jebanayagam, for it is not the whole order which the Attorney General seeks to set aside and indeed the Attorney General never disagreed with what Canadian Freightways set out to do, but rather was surprised by the award of costs. In my view it is not a want of due diligence to overlook something which is completely unexpected. Here I would observe that while the Attorney General says that the award of costs came as a surprise, one must perhaps consider that the judicial review application itself clearly sets out that Canadian Freightways does seek costs. The Attorney General may not here have the strongest argument by which to explain the delay, but by Grewal v. Canada (M.E.I.), [1985] 2 F.C. 263 (F.C.A.) I must balance the strength and weaknesses of an application for extension of time.

Prima Facie Case

[4]                  As to the second issue, it is for the Attorney General to show that the application has some merit. The Attorney General puts forward two lines of argument in order to establish a prima facie case that no liability should attach for costs. The first is that costs are not normally assessed against independent tribunal and the second that the Attorney General did not act in an adversarial manner.

[5]                  Counsel for the Attorney General submits that it is inappropriate to award costs against an independent tribunal created by statute. Here the reference is to the Canada Appeals Office on Occupational Health and Safety, this judicial review arising out of a decision or direction issued by Human Resources Development Canada: that tribunal not being a proper party, the Attorney General was substituted as a respondent. Here I would observe that by Rule 303(3) the Attorney General may decline to act as a respondent.

[6]                  It is not the tribunal, which is not a party and indeed may not be a party by reason of Rule 303(1)(a), against whom costs are awarded, but rather it is the Attorney General who has been ordered to pay costs. In principle, I do not see why costs should not be ordered against the Attorney General of Canada as a required Rule 303(2) respondent in a judicial review proceeding. Certainly the Crown, including the Attorney General, may have to pay costs in a criminal proceeding and here I would refer to R. v. Ouellette [1980] 1 S.C.R. 568. There Mr Justice Beetz, writing for the court, noted that the old common law rule, that the Crown neither paid nor received costs, was not all that absolute. However, Ouellette was decided on the basis that provisions of the Criminal Code, as to costs, were designed to place the Attorney General and the accused on an equal footing from the standpoint of costs.

[7]                  Certainly costs have been awarded against the Attorney General in a situation analogous to the present: see Griffiths v. Canada (Attorney General) (2000), 182 F.T.R. 130 (F.C.T.D.), a review of the Public Service Commission Appeal Board decision in which the Attorney General was the respondent. Indeed, in The Queen v. James Lorimer & Co. Ltd., [1984] 1 F.C. 1065 (F.C.A.) Mr Justice of Appeal Mahoney, observed that the "rule of dignity", that the Crown neither asked for nor paid costs, came from a time long past and "... is no more relevant than the colour of a litigant's hair." (page 1077).

[8]                  The second position taken by the Crown, to demonstrate a prime facie case, is that the Attorney General did not act in an adversarial manner, submitting that if it did not oppose the application, but merely required Canadian Freightways, as Applicant, to go before the tribunal in order to have the decision of the original tribunal set aside by cogent reasons, the Attorney General should not be expected to pay costs. This submission goes on to the effect that the Attorney General should be able to husband resources and should not be expected to appear in court on a matter on which it takes no position. Indeed, in the present instance, the Attorney General advised Canadian Freightways that it would not be attending. However there are several manifest fallacies with this position. First, the position of the Attorney General virtually forced Canadian Freightways to take this judicial review matter to the judicial review hearing. Second, if the Attorney General felt it had no interest whatsoever in upholding the decision, it could either have applied to escape from the proceeding by way of Rule 303(3), or have taken the proper step of consenting to have the decision set aside. Third, by forcing Canadian Freightways to proceed with the hearing, but not addressing the matter of costs or making some arrangements before the hearing, the Attorney General knowingly assumed the risks of an adverse award of costs and all the more so in that the Attorney General was aware, from the judicial review application, that Canadian Freightways was seeking costs.

[9]                  Overall, the Attorney General had not suggested a prima facie case for a reconsideration of the exercise of discretion, as to costs, by the hearing judge.

CONCLUSION

[10]            The Attorney General has at least a marginally reasonable excuse for the delay. However, I do not see any merit whatsoever in the argument that costs ought not to have been awarded against the Attorney General. Thus there is not a prima facie case to support an application for a time extension. There is nothing to balance, as the Court of Appeal requires, in Grewal (supra). The motion for an extension of time within which to appeal the Reasons for Order and the Order of Madam Justice Dawson, 2 April 2003, is therefore denied. Costs following the event, Canada Freightways will receive its costs of this motion, set in a lump sum and based on Column III of Tariff B, in the amount of $550.00.

(Sgd.) "John A. Hargrave"

                                                                                              Prothonotary

Vancouver, British Columbia

28 July 2003

                                                    FEDERAL COURT

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            T-2279-01

STYLE OF CAUSE:                        Canadian Freightways Limited v. Attorney General of Canada et al.

REASONS FOR ORDER:            Hargrave P.

DATED:                                               28 July 2003

WRITTEN REPRESENTATIONS BY:                              

                                         

SOLICITORS OF RECORD: