Date: 20020506
Docket: T-752-01
Ottawa, Ontario, the 6th day of May, 2002
PRESENT: THE HONOURABLE MADAM JUSTICE MCGILLIS
BETWEEN:
JEAN-GUY SAVARD
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The appeal from the decision of the Prothonotary dated March 27, 2002, is dismissed.
"D. McGillis"
Judge
Certified true translation
S. Debbané, LLB
Date: 20020506
Docket: T-752-01
Neutral citation: 2002 FCT 524
BETWEEN:
JEAN-GUY SAVARD
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
McGILLIS J.
[1] The applicant is appealing from a decision of Prothonotary Morneau dismissing the application for judicial review for delay.
[2] The test established by the case law that applies when reviewing a discretionary decision of a prothonotary was laid down by MacGuigan J.A., writing for the majority in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.), who stated at pages 462 and 463:
Page: 2
I also agree with the Chief Justice in part as to the standard of review to be applied
by a motions judge to a discretionary decision of a prothonotary ... discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary
was based upon a wrong principle or upon a misapprehension of the facts, or
(b) in making them, the prothonotary improperly exercised his discretion on a question
vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[3] It is obvious that the discretionary order made by the prothonotary raised " ... questions
vital to the final issue of the case", since it dismissed the application for judicial review. I must therefore exercise my own discretion de novo.
[4] After carefully reading all of the material that was filed at the status review, I have concluded that the applicant has not provided a valid explanation to justify his delay. More specifically, the applicant did not explain why he failed to proceed with his application for judicial review after the respondent had served his "reply to request for transmission of material" on September 27, 2001. Furthermore, in all of the material that the applicant filed at the status review, he failed to propose any step that would move the case forward. Accordingly, in exercising my discretion, I have concluded that the Court should not allow the applicant to continue his application for judicial review.
Page: 3
[5] In light of what I have concluded de novo in this case, it is not necessary for me to dispose of the issue raised by the applicant with respect to whether the Prothonotary was biased.
[6] The appeal from the decision of the Prothonotary dated March 27, 2002, is dismissed.
"D. McGillis"
Judge
OTTAWA
May 6, 2002
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
COURT FILE NO.: T-752-01
STYLE OF CAUSE: JEAN-GUY SAVARD V. ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE MCGILLIS
DATE OF REASONS: MAY 6, 2002
WRITTEN REPRESENTATIONS:
Jean-Guy Savard For the applicant
Sébastien Gagné For the respondent
SOLICITORS OF RECORD:
Jean-Guy Savard Applicant
Sébastien Gagné
Deputy Attorney General of Canada Respondent