Date: 20010126
Docket: 01-T-1
BETWEEN:
OCTAVIO EMMANUEL
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for an extension of time in which to serve and file the notice of motion for judicial review of a decision of the Review Tribunal under section 28 of the Old Age Security Act, pursuant to a decision rendered on June 29, 2000 by the Department of Human Resources Development Canada.
[2] First, I draw the parties' attention to the fact that the style of cause on the motion record of both the applicant and the respondent indicates that the record will be before the Federal Court of Appeal, which is obviously not the case here. The parties will have to correct their documents in future, if necessary.
[3] The applicant alleges that a decision was rendered by the Department of Human Resources Canada on June 29, 2000.
[4] The applicant allegedly learned of the decision on or about July 6 or 7, 2000.
[5] The applicant's counsel claims that after a few telephone calls both to the Federal Court and to the Canada Pension Plan - Old Age Security Review Tribunal he was informed that there was no appeal to the Federal Court, but a 90-day period in which to appeal to the Pension Review Tribunal under the Canada Pension Plan.
[6] On October 5, 2000, the applicant's counsel served the Pension Review Tribunal with an application for leave to appeal and notice of appeal.
[7] On October 24, 2000, the applicant's counsel was notified by the Review Tribunal that this tribunal did not have jurisdiction.
[8] Twenty-three days later, on November 16, 2000, the applicant's counsel appeared at the Federal Court to inquire about his rights of appeal to the Federal Court.
[9] It was then that the applicant's counsel learned that he had a remedy in judicial review of the decision that had been rendered.
[10] It was not until January 3, 2001, or forty-eight days later, that this motion was filed in the Federal Court.
[11] The respondent, for its part, claims to oppose the motion for extension of the period, relying in particular on the fact that the applicant has failed to discharge his onus to establish that the application for judicial review had merit.
[12] I have reviewed the submissions of both parties and the documents filed in the record.
[13] The courts have had occasion several times to rule on the appropriate tests for an application to extend the time.
[14] In Tarsem Singh Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (F.C.A.), the Federal Court of Appeal laid down the four tests that the applicant must meet if he wishes to succeed in an application for an extension of time:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[15] These reasons have been cited numerous times by the courts, more recently in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (F.C.A.), a unanimous decision of the Federal Court of Appeal.
[16] In Leblanc v. National Bank of Canada, [1994] 1 F.C. 81 (F.C.T.D.), MacKay J., discussing the tests for determining the merit of the application, explains:
The Court had anticipated more reference to the specifics of the applicant's case for judicial review. They were not forthcoming. In my view, this Court can hardly be persuaded that there is an arguable case merely by repeating the general grounds set out in subsection 18.1(4) of the Federal Court Act as a basis for its intervention. Some reference to the factual and legal basis for judicial review must be provided, which supports the view that there is a reasonable chance of success, in this particular instance.
[17] Likewise, in a recent decision (January 10, 2000) in Novotny v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 30, Prothonotary Hargrave states:
[A]s the condition for obtaining such an extension of time an applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case....
While the elements required by Grewal in seeking an extension of time are, as I say, well known, and indeed Grewal is referred to in the Respondent's material, too often counsel do not take seriously the necessity for clearly establishing, in their material in support of the motion for a time extension, that there is an arguable case.
[18] I have reviewed the documents submitted by the applicant, and the applicant states in paragraph 14 of his notice of motion:
[Translation] The appellant has excellent reasons to advance in opposition to the judgment that is the subject matter herein;
[19] Mr. J.P. Gagnon, in his affidavit, goes on to state, in paragraph 16 of his affidavit:
[Translation] The appellant has excellent reasons to advance in opposition to the judgment that is the subject matter herein;
[20] And in Ms. Solange Mongeri's affidavit, she states, in paragraph 10:
[Translation] ... he [the respondent [sic]] has some excellent reasons to advance in opposition to the judgment that is the subject matter herein;
[21] It must be acknowledged that if the applicant has excellent reasons to advance in opposition to the judgment that is the subject matter of this motion, neither the applicant nor his counsel, nor even his granddaughter and guardian, Ms. Mongeri, have cited the least factual or legal reason.
[22] What is more, it was not until October 24, 2000 that the applicant's counsel learned that he was not before the right court, but he waited twenty-three days to apply to the Federal Court to learn that he had a potential remedy in judicial review of this decision rendered close to five months earlier. The applicant waited a further six weeks before filing this motion for an extension of time, without explaining in any way this lengthy period since October 24, 2000.
[23] Consequently, the applicant has failed to persuade me that he has fulfilled the tests laid down by the cases; in fact, he has not demonstrated to the Court's satisfaction that his application had merit and that there was a reasonable explanation for the long delay following the decision rendered on June 29, 2000.
[24] For all these reasons, this motion is dismissed.
[25] As to costs, since neither record refers to them, this order will be rendered without costs.
Pierre Blais
J.
OTTAWA, ONTARIO
January 26, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: 01-T-1
STYLE: Octavio Emmanuel v. Her Majesty the Queen
MOTION IN WRITING REVIEWED WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATED: January 26, 2001
WRITTEN REPRESENTATIONS BY:
Jean-Paul Gagnon FOR THE APPLICANT
Chantal Poirier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-Paul Gagnon
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT