A-711-95
CORAM: STRAYER, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
BETWEEN:
| DELROY NELSON |
Appellant
| - and - |
| THE WARDEN OF THE EDMONTON |
INSTITUTION, THE COMMISSIONER OF
CORRECTIONS, THE SOLICITOR GENERAL
OF CANADA, and THE ATTORNEY GENERAL
OF CANADA
Respondents
Heard at Edmonton, Alberta, on Monday, November 18th, 1996.
Reasons delivered at Edmonton, Alberta on November 18th, 1996.
REASONS FOR JUDGMENT: STRAYER, J.A.
A-711-95
EDMONTON, ALBERTA, MONDAY, NOVEMBER 18th, 1996.
CORAM: STRAYER, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
BETWEEN:
| DELROY NELSON |
Appellant
| - and - |
| THE WARDEN OF THE EDMONTON |
INSTITUTION, THE COMMISSIONER OF
CORRECTIONS, THE SOLICITOR GENERAL
OF CANADA, and THE ATTORNEY GENERAL
OF CANADA
Respondents
| REASONS FOR JUDGMENT OF THE COURT |
| (Delivered from the Bench at Edmonton, Alberta, |
| on Monday, the 18th day of November, 1996.) |
STRAYER, J.A.:
This is an appeal from a decision of the Trial Division of November 1, 1995, in which the motions judge dismissed an application by the applicant, filed on October 17, 1995, and which sought:
| (1) an extension of time for service of the material in support of the originating notice of motion for judicial review previously filed on August 14, 1995; |
| (2) deeming good and sufficient as service, nunc pro tunc, the delivery already effected by registered mail of the originating notice of motion and supporting affidavit; and |
| (3) the extension of time for filing the applicant's application record. |
No reasons were given by the motions judge for the dismissal other than the following narrative in the order:
| "...this decision being based in large measure on the representation of the respondent herein whereby in part the impugned originating notice of motion does not meet the requirements of Rule 1603(1) and also the requirements for the method of service were not met." |
We must therefor proceed on the assumption that this decision was based on those grounds and on the uncontested facts.
Having reviewed these matters we are all of the view that the learned motions judge erred in principle in concluding as he did that an extension of time should not be granted.
The main considerations for determining whether an extension of time should be granted are well established in this Court1 and include the following: an intention, formulated within the time limit, to take proceedings; the existence of an arguable case; the cause and actual length of the delay; and whether there was prejudice caused by the delay. In the present case all of these elements should have been seen to favour the applicant. The fact that the application for judicial review was filed but not served within the time limit confirms a timely intention to proceed. The delay in serving counsel for the respondents was 11 days, hardly critical, and there was some explanation for the delay in instituting proceedings involving the applicant being in prison and there being a change of counsel. The respondents do not attempt to show prejudice and none appears to exist. It is also clear that the applicant has an arguable case, albeit that there may be debatable issues of fact and law which remain to be resolved. Therefore the relevant legal criteria all point to the grant of an extension of time.
Further, the two factors specifically relied upon by the motions judge appear to us to be inappropriate. The reference to sub-rule 1603(1) is somewhat enigmatic but must be taken to refer to the argument by counsel for the respondents that no one other than the actual applicant can be the deponent of an affidavit in support of an originating notice of motion for judicial review. That is not what sub-rule 1603(1) says: indeed, it contemplates the possibility of two or more affidavits, only one of which presumably could be that of the applicant. We do not understand Pratte, J.A.'s decision in St-Louis v. Canada Employment and Immigration Commission2 and associated cases to purport to hold that only an applicant can swear an affidavit under sub-rule 1603(1). It is true that by sub-rule 332(1) an affidavit in support of an originating notice of motion must be based on matters of personal knowledge, but the motions judge did not even advert to that sub-rule. There may well be parts of the supporting affidavit of Mr. Harris that contain matters of opinion or hearsay but that is a matter to be dealt with at the proceeding, not on an application for an extension of time.
Further the motions judge refused the extension because the method of service was not correct. That is not per se a ground for refusing an extension of time: indeed that is part of the reason such an extension was sought in this case. Further, even assuming that the service was improper, the respondents' solicitors nevertheless had the material within 11 days of the time required by the Rules and they have suggested no prejudice caused by the fact that service was by double-registered mail instead of personal. In fact within four days of receiving the notice of motion and supporting affidavit the respondents applied to set the application aside, but took no objection at that time either to the method or lateness of service. Therefore it was wrong in principle for the motions judge to take the method of service into account in refusing an extension of time.
We have therefore concluded that the appeal should be allowed and the time for service of the originating notice of motion and the affidavit of Gordon W. Harris should be extended nunc pro tunc. The motions judge did not find it necessary to deal with the other relief requested but for the above reasons we also approve nunc pro tunc the method of service of those documents. It follows that the time for filing the applicant's application record should be extended to 60 days after the remaining interlocutory motions are all either disposed of in the Trial Division or are withdrawn.
"B.L. Strayer"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-711-95
STYLE OF CAUSE: Delroy Nelson v.
The Warden of the
Edmonton Institution et al.
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: November 18, 1996
REASONS FOR JUDGMENT OF THE COURT: Strayer, J.A.
CONCURRED BY IN: Linden, J.A.
Robertson, J.A.
APPEARANCES:
Jennier Klimek for the Applicant
W.B. Hardstaff,
Department of Justice for the Respondent
SOLICITORS OF RECORD:
Charles B. Davison for the Applicant
George Thomson
Deputy Attorney General of Canada for the Respondent
__________________
1 See e.g., Grewal v. M.E.I. (1985) 63 N.R. 106
2 A-1085-92, December 18, 1992, unreported