Montréal, Quebec, February 1, 2006
PRESENT: MR. RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
Applicant
and
Motion by the applicant for an extension of time to serve and file the applicant’s record.
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] On April 7, 2005, the applicant filed a notice of application for judicial review under subsection 18.1(2) of the Federal Courts Act seeking to set aside the decision ending his Class B reserve service and issuing a written warning against him.
[2] Right from the first crucial steps in preparing his case, the applicant had difficulties with the application of the relevant rules. In fact, on December 7, 2005, the applicant had obtained a second extension of time to file his affidavit under section 306 of the Federal Courts Rules (the Rules).
[3] In granting this second extension on December 7, 2005, the Court also ruled on the notice of status review issued to the applicant in this case, considering the delays incurred in preparing his application for judicial review for hearing.
[4] On December 7, 2005, in spite of the notice of status review, the Court once again showed considerable latitude toward the applicant and allowed the application for judicial review brought by the applicant to continue.
[5] However, in rendering its order, the Court had this to say:
[translation]
As far as the status review is concerned, the Court acknowledges the soundness of the respondent’s position, to the effect that the applicant, notwithstanding the events surrounding the filing of his affidavit, has failed to serve and file his applicant’s record in accordance with section 309 of the Rules and that his submissions in answer to the notice of status review do not give any explanation for the delay in completing this essential step, other than demonstrating that counsel for the applicant seems to fundamentally misunderstand the Rules of procedure of this Court and to have no idea what steps he must complete to properly conduct this case. Such ignorance is not recognized in law as an excuse for delays. Moreover, it seems that it is because of this same ignorance that the applicant was unable to suggest a reasonable plan or timetable for advancing his case. In the circumstances, the Court would be warranted in dismissing the application for judicial review because of the delays incurred. However, . . . .
[6] After having allowed the proceeding to continue, the Court added the following comments:
[translation]
The leave granted by the Court to allow this proceeding to continue is not an acceptance of any justification whatsoever of the delay, nor does it sanction this delay. Quite the contrary, this Court will allow the proceeding to continue only on condition that the applicant present a motion for an extension of time to serve and file the applicant’s record, at which time he must meet the tests specified by case law to obtain this extension, that is to say, he must demonstrate that he has a continuing intention to pursue the application, that the application has merit, that no prejudice arises as a result of the delay and that a reasonable explanation for the entire delay exists. If the motion for an extension of time is dismissed, the application for judicial review will also fail and be automatically dismissed.
[7] However, in spite of this serious warning in this Court's order rendered on December 7, 2005, the motion record filed on January 9, 2006 by the applicant to obtain an extension of time to file the applicant’s record is more than deficient.
[8] In fact, even if we exclude from our analysis the fact that this record does not have a section containing written submissions and that the motion filed only contains an affidavit from counsel, it is impossible to do otherwise than to agree with the respondent’s following arguments at paragraphs 17 to 22 of the written submissions filed to counter the applicant’s motion for an extension of time:
[translation]
17. The applicant did not make any submission in his motion about the first three criteria stated by case law and mentioned by Prothonotary Tabib in this order [dated December 7, 2005];
18. He gave no reasonable explanation to try to justify the delays incurred since the notice of application was filed on April 7, 2005;
19. In fact, the applicant considered it sufficient to give the following three explanations to try to justify the delay incurred:
- The applicant thought that the extension order granted had extended the time limit by 180 days;
- The applicant did not know that certain documents had not been returned in compliance with the order issued in July 2005;
- Finally, the applicant had learned that judicial review was done on the basis of the record.
20. This Court’s case law is to the effect that only grounds beyond the control of counsel or the applicant may constitute a reasonable explanation warranting an extension of time:
When an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event. (Armonikos Corp. Ltd. v. Saskatchewan Wheat Pool (2002), 220 F.T.R. 115).
21. In addition, the applicant has accumulated delays since April 7, 2005 without any consequences and already had to make two other motions for extension time in this case;
22. It seems from the preceding that the applicant does not have much interest in ensuring this proceeding is properly conducted and in respecting the rules governing it.
[9] Accordingly, the applicant’s motion for an extension of time to serve and file the applicant’s record is dismissed. In addition, in accordance with the order rendered by this Court on December 7, 2005, considering the dismissal of the applicant’s motion, his application for judicial review is also dismissed, with costs in the amount of $75 for the respondent.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-623-05
STYLE OF CAUSE: SERGE SMITH v. NATIONAL DEFENCE
MOTION IN WRITING DEALT WITH IN MONTRÉAL WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER BY: Prothonotary Morneau
DATED: February 1, 2006
WRITTEN SUBMISSIONS BY:
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Jacques Patry |
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FOR THE APPLICANT |
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Benoît de Champlain |
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FOR THE RESPONDENT |
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SOLICITORS OF RECORD:
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Jacques Patry Trois-Rivières, Quebec |
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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FOR THE RESPONDENT |
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