Date: 20020109
Docket: T-1051-01
Neutral citation: 2002 FCT 24
BETWEEN:
IMPERIAL TOBACCO CANADA LIMITED
and
ROTHMANS, BENSON & HEDGES INC.
and
JTI-MACDONALD CORP.
Applicants
AND
THE MINISTER OF HEALTH
and
THE ATTORNEY GENERAL FOR CANADA
Respondents
[1] This is a motion by the applicants under rules 8 and 75 of the Federal Court Rules, 1998, (the Rules) for leave to serve and file an amended application for judicial review and to extend the time period in which the applicants may file their applicants' record accordingly. The motion also seeks to establish a more comprehensive timetable on that basis.
[2] The respondents' opposition to this motion essentially relates to the requirements that the applicants must meet in requesting an extension of time to file their record under Rule 309. That record should ordinarily have been filed by October 24, 2001. This motion was filed on November 6, 2001, and was initially returnable the following week.
[3] The time between October 24 and November 6 is very short. Although the affidavit filed in support of the applicants' motion record does not in itself give any explanation of the reasons that would justify this short delay, I am satisfied with the explanation provided by counsel for the applicants, which was that the respondents' affidavits, filed on September 12, 2001, kept the applicants and their counsel busy enough that it is understandable that the October 24 deadline could not be met.
[4] The respondents also argued that the affidavits filed in the record by the parties clearly show that the applicants' application for judicial review discloses no reasonable cause of action, and as a result, the applicants do not meet the second requirement for an extension of time that their application on the merits disclose an arguable case.
[5] The respondents' submit that the applicants' affidavits themselves establish that when the applicants submitted their application for their exemption from the requirement to report to the Minister under section 14 of the Tobacco Reporting Regulations, SOR/2000-273, they were out of time and further failed to include the brands and standard samples required by subsection 14(13) of the Regulations. The respondents submit that notwithstanding the differing interpretations of subsection 14(11) of the Regulations, these factors, which essentially related to subsection 14(13), mean that the applicants' application for an exemption was clearly destined to fail, as was therefore the applicants' application for judicial review of the respondents' decision dated March 22, 2001, rejecting the application for an exemption. Accordingly, the respondents contend, an amendment of a declaratory nature cannot be grafted to an application for judicial review that was destined to fail, where the result of adding it would be to continue an otherwise pointless proceeding.
[6] I am of the opinion that the respondents are reading the applicants' file too harshly at this stage.
[7] Even though at first glance there seem to be serious shortcomings in the applicants' file, as noted by Mr. Choinière in paragraph 22 of his affidavit of September 12, 2001, the missing items under subsection 14(13) of the Regulations and the late submission of the application for exemption--it must be noted, as the applicants pointed out, that apart from the differing interpretations of subsection 14(11) of the Regulations, those shortcomings played no part in the written decision of March 22, 2001. Moreover, despite those shortcomings, it appears that the respondents received the applicants' application for an exemption and began processing it without ever bringing them up. It was only on September 12, 2001, when the respondents filed their affidavits in connection with this application for judicial review that they pointed them out.
[8] The applicants submit that it might therefore be thought--and the Court might be tempted, on the merits, to find--that the real issue between the parties was at all relevant times the interpretation of subsection 14(11) of the Regulations.
[9] The applicants' assessment appears to me to present a sufficiently serious case at this stage that I conclude that they have met the requirements for the extension of time they are seeking.
[10] The purpose of the actual amendment to the application for judicial review is obviously to provide a remedy that extends beyond the situation in 2001. That amendment would therefore be added to an application for judicial review which, as established earlier, can still be regarded as having sufficient merit. In light of the principles concerning amendments stated in Canderel Ltée v. Canada (1993), [1994] 1 F.C. 3 (C.A.) and Raymond Cardinal et al. v. Her Majesty the Queen, unreported decision of the Federal Court of Appeal dated January 31, 1994, File No.
A-294-77, Heald, Décary and Linden, JJ.A., the amendment sought must be allowed. Furthermore, it is appropriate that this amendment be grafted onto an application for judicial review rather than obliging the applicants to present it in a new action. (See the Federal Court of Appeal's decision in Sweet et al. v. Canada (1999), 249 N.R. 17, pages 25 et seq.)
[11] The applicants' motion will therefore be allowed with costs. An order will issue accordingly.
Richard Morneau
Prothonotary
Montréal, Quebec
January 9, 2002
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020109
Docket: T-1051-01
Between:
IMPERIAL TOBACCO CANADA LIMITED
and
ROTHMANS, BENSON & HEDGES INC.
and
JTI-MACDONALD CORP.
Applicants
AND
THE MINISTER OF HEALTH
and
THE ATTORNEY GENERAL FOR CANADA
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1051-01
STYLE OF CAUSE: IMPERIAL TOBACCO CANADA LIMITED
and
ROTHMANS, BENSON & HEDGES INC.
and
JTI-MACDONALD CORP.
Applicants
AND
THE MINISTER OF HEALTH
and
THE ATTORNEY GENERAL FOR CANADA
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 10, 2001
REASONS FOR ORDER OF
RICHARD MORNEAU, PROTHONOTARY
DATED: January 9, 2002
APPEARANCES:
David R. Collier FOR THE APPLICANTS
Marie Marmet FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Ogilvy Renault
Montréal, Quebec FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENTS