Date: 19980903 Docket: T-1651-98
OTTAWA, ONTARIO, THE 3rd DAY OF SEPTEMBER 1998 PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
KELLY MCNULTY
Applicant
- and -
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
ORDER AND REASONS FOR ORDER
The respondent moves to strike out the applicant's notice of application for judicial review of the decision dated June 20, 1998, of an adjudicator appointed under Part III of the Canada Labour Code, dismissing her complaint for unjust dismissal by the Canadian Imperial Bank of Commerce, on two grounds:
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1) that the application was not brought within 30 days after the decision was communicated by the tribunal, or within such further time as a judge of the Trial Division allows; and,
2) that the application does not name the proper respondent.
The notice of application was filed on August 17, 1998, although the applicant, who is not represented by a solicitor, claims that she had formulated the intention to file such an application prior to July 21, 1998.
The applicant has failed to comply with Rule 303 of the Federal Court Rules,
1998. This Rule states:
303. (1) Subject to subsection (2), an applicant shall name as a respondent every person
303. (1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur
(a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or
a) toute personne directement touchée par l'ordonnance recherchée, autre que l'office fédéral visé par la demande;
(b) required to be named as a party under an Act of Parliament pursuant to which the
application is brought.
b) toute autre personne qui doit être désignée à titre de partie aux termes de la loi fédérale ou de ses textes d'application qui prévoient ou autorisent la présentation de la demande.
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(2) Where in an application for judicial review there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent.
(2) Dans une demande de contrôle judiciaire, si aucun défendeur n'est désigné en application du
paragraphe (1), le demandeur désigne le procureur général du Canada à ce titre.
In the case at bar, the named respondent is not directly affected by the order being sought and is not required to be named as a party under an Act of Parliament. Indeed, the person directly affected by the order sought in the application, that is, the person in whose favour the decision was rendered, has not been named as a respondent.
Also, the applicant has failed to comply with the time requirement specified in subsection 18.1(2) of the Federal Court Act.
In these circumstances and in the interest of justice, I believe that the proper disposition of this matter is to allow the applicant to amend her notice of application by substituting the Canadian Imperial Bank of Commerce as respondent for Human Resources Development Canada. Leave to amend the style of cause is accordingly granted.
The applicant must bring a motion under subsection 18.1(2) of the Federal Court Act to extend the time within which to bring the application. Such a motion must be
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accompanied by an affidavit explaining the delay. The applicant must promptly amend the style of cause, and serve the substituted respondent with the amended notice of application and the motion to extend the time. The applicant should consider bringing such motion under Rule 369 of the Federal Court Rules, 1998.
If leave is granted then the parties must observe the time lines set out in Part 5 of the Rules.
J. Richard Associate Chief Justice
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1651-98
STYLE OF CAUSE: KELLY MCNULTY v. HUMAN RESOURCES DEVELOPMENT CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: 31-AUGUST-1998
ORDER AND REASONS FOR ORDER OF THE HONOURABLE ASSOCIATE CHIEF JUSTICE
DATED: 3-SEPTEMBER-1998
APPEARANCES
Kelly McNulty
(representing herself) FOR APPLICANT
Mrs. Joanne Fox FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. McNulty on her own behalf FOR APPLICANT Toronto, Ontario
Morris Roseenberg Deputy,Attorney General of Canada FOR RESPONDENT