Date: 20030307
Docket: A-695-02
Neutral citation: 2003 FCA 122
Present: The Honourable Justice Sharlow
BETWEEN:
SYDNEY H. PFEIFFER
and
PFEIFFER & PFEIFFER INC.
Applicants
and
THE SUPERINTENDENT OF BANKRUPTCY
(MARC MAYRANT)
and
THE DEPUTY SUPERINTENDENT OF BANKRUPTCY
(ALAIN LAFONTAINE)
Respondents
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, March 7, 2003
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20030307
Docket: A-695-02
Neutral citation: 2003 FCA 122
Present: The Honourable Justice Sharlow
BETWEEN:
SYDNEY H. PFEIFFER
and
PFEIFFER & PFEIFFER INC.
Applicants
and
THE SUPERINTENDENT OF BANKRUPTCY
(MARC MAYRANT)
and
THE DEPUTY SUPERINTENDENT OF BANKRUPTCY
(ALAIN LAFONTAINE)
Respondents
REASONS FOR ORDER
[1] The appellants have appealed the order of Justice Blais dated November 26, 2002 striking their application for judicial review: Pfieffer v. Canada (Superintendent of Bankruptcy), 2002 FCT 1220, [2002] F.C.J. 1670 (T.D.). Before me is a motion by the appellants pursuant to Rule 343 to determine the contents of the appeal book.
[2] The test for the inclusion of documents in an appeal book is found in Rule 343(2):
| 343 (2) The parties shall include in an appeal book only such documents, exhibits and transcripts as are required to dispose of the issues on appeal. |
343 (2) Les parties n'incluent dans le dossier d'appel que les documents, pièces et transcriptions nécessaires au réglement des questions en litige dans l'appel. |
[3] The parties disagree on whether the following documents are required to dispose of the issues on appeal:
- transcript of examination of Alain Lafontaine
- appellants' motion for an order requiring Alain Lafontaine to reattend and answer questions
- respondents' motion record in reply to Appellants' motion for reattendance
- decision of Justice Tremblay-Lamer rendered October 28, 2002 denying the motion for reattendance
- two documents provided as evidence on consent before the Justice Blais.
[4] The decision of Justice Tremblay-Lamer was appealed (A-608-02), but that appeal has been discontinued.
[5] It is common ground that the disputed documents were before Justice Blais when he made the decision under appeal. However, the respondents say the disputed documents should be excluded from the appeal book because they relate to the "tardiness issue" which they say has been rendered moot by an agreement between the parties. The "tardiness" issue is the argument that the appellants commenced their application for judicial review outside the statutory 30 day time limit.
[6] The application for judicial review was filed on July 10, 2002. According to the notice of application for judicial review, the appellants were challenging a decision of the Superintendent of Bankruptcy to undertake an investigation of the appellants and issue conservancy measures. The notice states that the appellants were advised of this decision on July 4, 2002.
[7] The respondents took the position before Justice Blais that the appellants became aware of the decision more than 30 days before filing their notice of application for judicial review. According to the respondents, it was in support of that argument alone that the affidavit of Mr. Lafontaine was filed, which led to the cross-examination, which in turn led to the motion before Justice Tremblay-Lamer. The respondents also claim that the two documents provided as evidence on consent before Justice Blais relate only to the tardiness issue.
[8] Justice Blais struck the application for judicial review on two grounds which I need not describe, but he did not accept the argument of the respondents that the application for judicial review was tardy.
[9] The respondents say that on January 20, 2003, they agreed that they would not contest the refusal of Justice Blais to accept their tardiness argument if the appellants would discontinue their appeal of the decision of Justice Tremblay-Lamer. That agreement is said to be expressed in the following terms in a letter dated January 20, 2003 from counsel for the respondents to counsel for the appellants (emphasis added):
| Nevertheless, we understand form [sic] our latest discussions that a mutually acceptable compromise could be reached, whereby our client would take the following undertakings in consideration of which your clients would discontinue their appeal of Mme Justice Tremblay-Lamer's decision : |
| - not to contest that Sylvie Laperrière's letter dated July 4th, 2002 constitutes the communication of a judicially reviewable decision since this letter informs your clients that ours had triggered the process leading up to a potential sanction under section 14.01 of the BIA [Bankruptcy and Insolvency Act]; |
| - recognise that, in as much as your judicial review application does in fact notably seek to quash the decision which was communicated by Sylvie Laperrière's letter dated July 4th, 2002, it was filed within thirty (30) days; and, in any event, |
| - not to appeal Justice Blais' finding that the judicial review application notably applies to the decision which was communicated on July 4th, 2002, it being understood that our client will not renounce his right to invoke tardiness in the event that you do not make it perfectly clear that the application seeks to quash our clients's decision to trigger the process leading up to a potential sanction under section 14.01 of the BIA. |
[10] The appellants argue that the underlined words indicate that the respondents have reserved the right to refer to the tardiness issue in certain events. I agree that the respondents' promise to drop the tardiness issue depends upon the argument that the appellants may finally make in this appeal.
[11] The practical problem raised by the respondents' conditional promise to drop the tardiness issue is that the appeal book must be completed before the appellants state their arguments in a memorandum of fact and law. It is conceivable that once the appellants' memorandum is filed, the respondents may interpret it as failing to "make it perfectly clear that the application seeks to quash our clients's decision to trigger the process leading up to a potential sanction under section 14.01 of the BIA." They might then consider themselves free to raise the tardiness issue in their own memorandum of fact and law. But by then it will be too late to include in the appeal book the disputed documents, which are admitted to be relevant to the tardiness issue.
[12] The respondents have not taken steps to remove the condition attached to their promise to drop the tardiness issue. On the contrary, they have confirmed the conditional nature of their promise at paragraphs 40 and 41 of their written submissions (page 47 of the respondents' motion record; emphasis in original):
| 40. Rather, the Applicants can make it clear in their written procedures before this Court that their application sought to quash the Respondent's decision to trigger the process leading up to a potential sanction under section 14.01 of the BIA. |
| 41. Since the Applicants have already made this point perfectly clear in their written procedures before this Court, the Respondent will not raise tardiness in the present appeal unless the Applicants, through their own written procedures, were to contradict themselves in future. |
[13] In my view, this is sufficient to establish that the disputed documents should be included in the appeal book. I express no opinion on any of the other arguments made by the parties. An order will be made that the appeal book will contain the disputed documents as well as the documents upon which the parties have agreed.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-695-02
STYLE OF CAUSE: SYDNEY H. PFEIFFER
and
PFEIFFER & PFEIFFER INC. (Applicants)
and
THE SUPERINTENDENT OF BANKRUPTCY
(MARC MAYRANT)
and
THE DEPUTY SUPERINTENDENT OF BANKRUPTCY
(ALAIN LAFONTAINE) (Respondents)
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER: Sharlow J.A.
DATED: March 7, 2003
WRITTEN REPRESENTATIONS BY:
Aaron Rodgers FOR THE APPELLANT
Vincent Veilleux ATTORNEYS FOR THE RESPONDENT (The Deputy Superintendent of Bankruptcy (Alain Lafontaine)
Robert Monette COUNSEL FOR THE RESPONDENT (The Deputy Superintendent of Bankruptcy (Alain Lafontaine)
SOLICITORS OF RECORD:
SPIEGEL SOHMER FOR THE APPELLANT
Montreal, Quebec
DEBLOIS & ASSOCIATES FOR THE RESPONDENT
Montreal, Quebec (The Deputy Superintendent of Bankruptcy Alain Lafontaine)
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of (The Deputy Superintendent of Bankruptcy
Canada Alain Lafontaine)