Docket No.: 01-T-5
Neutral citation: 20001 FCT 458
Ottawa, Ontario, this 10th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
FAITH BRADLEY-SHARPE
Applicant
- and -
THE ROYAL BANK OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. The applicant, Ms. Bradley-Sharpe, who is self-represented, has filed a motion for an extension of time pursuant to Rule 369 of the Federal Court Rules, 1998, SOR/98-106, for an order extending the time to file a notice of application for judicial review.
2. The applicant was employed by the respondent, the Royal Bank of Canada, from September 1978 to July 23, 1999. The applicant resigned in 1999 because she alleged that she experienced discrimination on the basis of disability as a result of fibromylagia.
3. On September 15, 1999, the applicant filed a complaint against the respondent with the Canadian Human Rights Commission alleging discrimination on the basis of disability. An investigation report was rendered on August 26, 2000 which determined that the allegation of discrimination was unfounded. The Canadian Human Rights Commission rendered a decision on October 30, 2000 dismissing the applicant's complaint.
4. The respondent alleges that the 30 day limitation period commenced when the decision of the Canadian Human Rights Commission was rendered, which would make November 30, 2000 as the final day for filing a notice of application for judicial review. The applicant alleges that the 30 day limitation period should commence when she received information from the Federal Court of Canada regarding the appeal process on November 7, 2000. The limitation period would have therefore expired on December 7, 2000.
5. The applicant's motion for an extension of time was filed with the Court on February 28, 2001. The applicant attempts to explain the delay with the following reasons, namely, suffering illness, experiencing major computer errors, and unsuccessfully attempting to file a notice of application on December 6, 2000, not in the proper format.
6. In the underlying matter for which the applicant seeks judicial review, the applicant alleges that she was denied procedural fairness because material witnesses were not interviewed, and alleges that the Human Rights Commission erred in relying on certain evidence that the applicant characterizes as hearsay and "perjured data". The applicant also alleges that she was denied an opportunity to examine and respond to certain documents. In my view, the applicant has established an arguable case.
7. The criteria to be used in exercising the discretion to grant an extension of time under subsection 18.1(2) of the Federal Court Rules, 1998, is discussed in the leading case Grewal v. Canada (Minister of Employment and Immigration).[1] Chief Justice Thurlow stated at page 272:
The underlying consideration ... which, it seems to me, must be borne in mind in dealing with any application of this kind, is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension.
In separate reasons, Justice Marceau spoke of the "ultimate search for justice" which should prevail "over the necessity of setting the parties' right to rest." He stated at page 282 of the decision
... It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay.
8. I am satisfied, having considered the circumstances presented, that on the reasons given for the delay, although not the most compelling, and on the strength of the arguable case, to do justice between the parties calls for the grant of the extension.
9. Finally, the applicant indicated in her affidavit that she would be prejudiced without the extension of time, particularly, she would suffer emotional hardship and hardship to her career due to the alleged discrimination. I accept this evidence and find that the prejudice that could be suffered by the applicant would outweigh any prejudice on the respondent should the extension be granted.
10. I am satisfied that the applicant has discharged her onus of establishing, in the circumstances of this case, that the extension sought should be granted.
ORDER
THIS COURT ORDERS that:
1. The application made on behalf of the applicant for an order to extend time to allow the applicant to file a notice of application is granted.
2. The applicant is granted five days from the date of this order to file a notice of application for judicial review.
"Edmond P. Blanchard"
Judge