Date: 20001208
Docket: T-1125-99
OTTAWA, ONTARIO, THIS 8TH DAY OF DECEMBER 2000
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
- and -
THE MINISTER OF ENVIRONMENT CANADA
Respondent
- and -
ETHYL CANADA INC.
Added Respondent
REASONS FOR ORDER and ORDER
[1] This motion was brought by the added respondent, Ethyl Canada Inc. ("Ethyl"), pursuant to Rule 8 of the Federal Court Rules, 1998, S.O.R./1998-106, to extend the period of time to serve its memorandum of fact of law.
[2] Pursuant to an order by the Honourable Justice Hugessen, dated June 27, 2000, Ethyl was to file and serve its application materials by September 21, 2000. Ethyl did not meet the time frame fixed by Justice Hugessen's order.
[3] Rule 8 of the Federal Court Rules, 1998 provides:
8. (1) Extension or abridgement - On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
(2) When motion may be brought- A motion for an extension of time may be brought before or after the end of the period sought to be extended.
...
8. (1) Délai prorogé ou abrégé - La Cour peut, sur rqeuête proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.
(2) Moment de la présentation de la requête - La requête visant la prorogation d'un délai peut être présentée avan tou aprèes l'expiration du délai.
[...]
[4] Rule 3 of the Federal Court Rules, 1998 provides:
3. General Principle - These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
3. Principe général - Les présentes règles sont interprétées et appiquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
[5] The issue in this motion is whether Ethyl should be permitted to file a memorandum of fact and law.
[6] In determining whether to grant an extension of time, certain factors are generally considered. In Canada (A.G.) v. Hennelly (1999), 244 N.R. 399 (Fed. C.A.), the Federal Court of Appeal denied the applicant's motion for an extension of time to file the applicant's record. In doing so, the Court considered whether the applicant had demonstrated (at p. 400):
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.
[7] These four factors were also considered by Justice O'Keefe in Canada (Minister of Citizenship and Immigration) v. Ravichandran [2000] F.C.J. No. 411, in which the Minister of Citizenship and Immigration filed a motion to extend the time to serve the requisition for hearing. Justice O'Keefe granted the extension of time after considering the following (at para. 15-17):
| [15] I have reviewed the filed material and I am satisfied that the Minister has raised a triable issue in his application for judicial review, i.e., does the respondent meet the residency requirements of 5(1)(c) of the application for judicial review... |
| [16] I am also satisfied with the Minister's counsel's explanation for the delay. He quite candidly told the Court he had neglected to file the application for an extension of time... |
| [17] There should not be any prejudice to the respondent as the hearing for judicial review can still be heard albeit it a little later in time. I believe that to ensure justice is done between the parties, the issue as to whether the respondent met the residency requirement should be determined by |
the Court.
[8] Applying these four factors to this case, both parties agree that Ethyl has a genuine interest in this case. Although counsel for the Respondent has argued that Ethyl has not shown a continuing intention to pursue this application, I disagree. There is uncontested evidence in the sworn affidavit of Bruce Campbell, former solicitor to Ethyl, stating that Ethyl has maintained its intention to proceed with this application. I accept this sworn statement.
[9] Further, Ethyl maintains the delay in filing was due to the departure of its solicitor, Bruce Campbell, from private practice. Because of conflicts of interest, Ethyl had difficultly finding new counsel. Although the delay is extensive, I accept the departure of Ethyl's counsel from private practice and the subsequent search for new counsel as a reasonable explanation for the delay in filing its memorandum of fact and law.
[10] Finally, no prejudice would result from the extension of time, which cannot be compensated by costs. The respondent argued that since Ethyl is adverse in interest to the respondent, it is prejudicial to allow Ethyl to file a memorandum of fact and law after having the benefit of the respondent's memorandum of fact and law. In my opinion, any prejudice in this regard is countered by the fact that the respondent will be able to file a response to Ethyl's memorandum of fact of law.
[11] In my opinion, it is in the interest of justice to grant Ethyl an extension of time in order to file its memorandum of fact and law.
ORDER
THIS COURT ORDERS that:
| 1. The added respondent is granted leave to file its memorandum of fact and law. |
| 2. The order of the Honourable Mr. Justice Hugessen, dated June 23, 2000, paragraph 5, is varied so as to provide that the added respondent shall file and serve its memorandum of fact and law on or before December 15, 2000. |
| 3. The respondent may serve and file on or before January 8th, 2001, a response to the added respondent's memorandum of fact and law. |
| 4. No cost shall be ordered. |
Judge