Date: 19990114
Docket: 98-T-55
BETWEEN:
J. BRUCE W. CARSON
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The discretion of a judge of the Trial Division to extend the thirty-day period for filing an application for judicial review originates from subsection 18.1(2) of the Federal Court Act:1
An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. [Emphasis added.]
Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou
accorder.
[2] It is useful to review the leading authority on the criteria to be used in exercising this discretion. In Grewal v. Minister of Employment and Immigration,2 the applicant sought an extension for the filing of his application for judicial review some twelve months after the decision of the Immigration Appeal Board. In the words of Chief Justice Thurlow, "[t]he 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 granting of the extension".3 He added that "... in the end, whether or not the extension justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not ... fettered".4
[3] In separate reasons, Justice Marceau emphasized that where the "ultimate search for justice" prevails "over the necessity of setting the parties" rights to rest", the extension ought to be granted. He also speaks of the balancing of the relevant factors:
| The imposition of time limits to dispute the validity of a legal decision is of course meant to give effect to a basic idea of our legal thinking that, in the interest of society as a whole, litigation must come to an end (interest reipublicae ut sit finis litium), and the general principles adopted by the courts in dealing with applications to extend those limits were developed with that in mind. Only if the ultimate search for justice, in the circumstances of a case, appears to prevail over the necessity of setting the parties" rights to rest will leave to appeal out of time be granted. Hence the requirement to consider various factors, such as the nature of the right involved in the proceedings, the remedy sought, the effect of the judgment rendered, the state of execution of that judgment, the prejudice to the other litigants in the dispute, the time lapsed since the rendering of the judgment, the reaction of the applicant to it, his reason for having failed to exercise his right of appeal sooner, the seriousness of his contentions against the validity of the judgment. 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.5 [Emphasis added.] |
[4] In this case, the applicant"s material discloses, at the very least, "an arguable case"6 and even "a reasonable chance of success".7 To paraphrase Justice Marceau in Grewal, I am satisfied with the seriousness of the applicant"s contentions against the validity of the impugned decision. The applicant has clear affidavit evidence from the deceased"s physician that the couple was living as husband and wife and the respondent has chosen not to disclose the documentary information in support of the contrary view.
[5] The applicant"s case in explaining the delay of some three months beyond the usual thirty-day period for filing this application is weaker. The impugned decision was communicated by letter dated July 30, 1998 and received by the applicant on August 3, 1998. The same letter was copied to his solicitor who, in correspondence of September 1995, had informed the government officials that their failure to disclose documentation opposing the applicant"s claim was "both unfair and not sustainable if subjected to a review" and "any decision based upon secret information may be overturned in subsequent court proceedings".8
[6] The applicant"s affidavit evidence as to what he and his solicitor did upon receipt of the letter of July 30, 1998, communicating the decision, is more laconic:
| 21. Following my receipt of the letter [of decision] I did not appreciate or know that there existed a 30 day deadline to file a request to have the decision reviewed, despite my intention to have an unfavourable decision challenged. |
| 22. On November 16, 1998, my solicitor advised me that there was a 30 day deadline for filing an application for judicial review. On that date, I instructed my solicitor to prepare and file an application for judicial review. |
The applicant"s failure to know of the thirty-day time period to file the application for judicial review indicates either a lack of communication between him and his solicitor or the possibility of an oversight by the latter.9
[7] This is a situation where, in exercising the balancing test suggested by Justice Marceau in Grewal, the applicant"s apparently strong case to challenge the decision must be weighed against a less satisfactory justification for the delay. Perhaps as the result of the refusal to disclose "documentation opposing"10 the applicant"s claim, it is not apparent from the record that judicial review is not warranted. This vacuum of information significantly outweighs my concern with the three-month delay.
[8] Accordingly, the extension of time for the filing of the applicant"s notice of application is granted.
Judge
Ottawa, Ontario
January 14, 1999
__________________5 Ibid. at 282. In Nelson v. Edmonton Institution (1996), 206 N.R. 180 (F.C.A.) at paragraph 4, these factors were stated in substantially similar terms to include "an intention, formulated within the time limit, to take proceedings; the existence of an arguable case; the course and actual length of the delay; and whether there was prejudice caused by the delay".
7 The test of "a reasonable chance of success" was used by Justice MacKay in LeBlanc v. National Band of Canada, [1994] 1 F.C. 81 at 94.
8 Application Record, pp. 68-73.
9 I share the view of MacKay J. in LeBlanc, supra note 7 at p. 93, that "missteps by counsel" should not preclude the extension of the time period "... where the applicant establishes a basis for the Court to conclude, in the interests of justice between the parties, that there is a reasonable chance of success in an application for judicial review".