Date: 20001129
Docket: 00-T-43
BETWEEN:
DOUGLAS M. LEE
Applicant
- and -
THE BANK OF NOVA SCOTIA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by Douglas M. Lee (the "applicant") for leave of this Court to bring a motion for an extension of time to commence a new application for judicial review naming the Bank of Nova Scotia as respondent and seeking a remedy binding on the Canadian Human Rights Commission ("C.H.R.C.").
[2] The applicant had commenced a judicial review application on April 13, 2000 in which he sought a review of C.H.R.C.'s decision of March 22, 2000 to deny his complaint. This application named as respondent, The Attorney General of Canada. By Order of Associate Senior Prothonotary Peter A. K. Giles dated July 11, 2000, The Attorney General of Canada was struck out as a respondent in that application.
[3] The applicant made a number of attempts to obtain an extension of time to file a fresh application for judicial review naming the Bank of Nova Scotia and others. His application was dismissed by Prothonotary Lafrenière, but without prejudice to the applicant bringing a motion for an extension of time to bring a fresh application for judicial review on proper notice to the Bank of Nova Scotia.
[4] On November 1, 2000 the applicant appeared before Madam Justice Heneghan of this Court to seek the extension of time but his application was dismissed without prejudice to the applicant bringing a motion for an extension of time to commence a new application for judicial review naming the Bank of Nova Scotia, only, as a respondent. That application was to be made by November 20, 2000.
[5] On November 20, 2000 the applicant appeared before Madam Justice Hansen of this Court who adjourned the motion for an extension of time to November 27, 2000 to allow time for compliance with the Order of Madam Justice Heneghan.
[6] The new application for judicial review was filed on November 22, 2000.
Issue
[7] Should the applicant be granted an extension of time to file a new application for judicial review naming the Bank of Nova Scotia as a respondent?
Law
[8] Subsections 18.1(1) and 18.1(2) of the Federal Court Act, R.S.C. 1985 c. F-7 read as follows:
| 18.1(1) Application for judicial review An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. 18.1(2) Time limitation 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. |
18.1(1) Demande de contrôle judiciaire Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande. 18.1(2) Délai de présentation 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. |
Analysis and Decision
[9] The Federal Court of Appeal in Nelson v. Commissioner of Corrections (Can.) Et al [1985] 2 F.C. 263 (F.C.A.) discussed the factors to be considered when deciding whether to gran an extension of time for filing an application for judicial review and Strayer J.A. stated at page 181:
| The main considerations for determining whether an extension of time should be granted are well established in this court . . . and include the following: an intention, formulated within the time limit, to take proceedings; the existence of an arguable case; the cause and actual length of the delay; and whether there was prejudice caused by the delay. |
[10] I will now apply these principles to the facts in this motion.
[11] Intention formulated within the time limit to take proceedings.
The applicant certainly formed an intention to contest the C.H.R.C.'s decision within the time limit as he filed an application for judicial review on April 13, 2000 which was within the 30 day period contemplated by the Act. The only problem was that he named The Attorney General of Canada as the respondent. This was not the correct respondent. The Attorney General of Canada was struck as a respondent on July 11, 2000 and the applicant was eventually given the right to commence a fresh application for judicial review which, after a series of rulings, he has done. In my view, the applicant from July 11, 2000 to the present, was attempting to correctly get his judicial review application on the correct track.
[12] The existence of an arguable case.
When the application for judicial review that was filed on November 22, 2000 is reviewed, it is obvious that there are arguable issues raised by the applicant. For example, the applicant claims he was not allowed to make full answer and defence and that he was not provided with materials and submissions made by the Bank of Nova Scotia to the C.H.R.C. Further, he also alleges that the investigation of the C.H.R.C. was not properly and fairly executed and that the investigation was partly based on an exchange of letters not made known to the applicant. These are certainly issues that would give the applicant an arguable case.
[13] The cause and actual length of the delay.
The delay was caused by the naming of a wrong party by the applicant. That was only determined on July 11, 2000 by the Court and then there was further correspondence concerning the meaning of the decision. The applicant was given permission by this Court right up until November 8, 2000 to file his new application for judicial review. Although approximately six months had passed since the applicant filed his first application for judicial review on April 13, 2000, there has been almost continuous Court activity on the file. In these circumstances, I do not find the delay inordinately long.
[14] Whether there was prejudice caused by the delay.
The Bank of Nova Scotia claims that it is prejudiced because it entered into settlement negotiations with the applicant not knowing that he was still trying to have the decision of the C.H.R.C. reviewed. These settlement negotiations did not result in a settlement. Evidence of failed settlement negotiations would not be relevant in the judicial review or otherwise. I therefore cannot see how the Bank of Nova Scotia would suffer any prejudice by the delay of the applicant in having a new application for judicial review filed.
[15] Accordingly, I am of the opinion that in light of the above decisions, the applicant should be granted an extension of time in which to file his new application for judicial review. As the applicant appears to have filed that new application for judicial review on November 22, 2000, I would grant an extension to November 23, 2000 for the new application for judicial review to be filed. In the alternative, if that application is not the new application for judicial review, I would grant an extension of time until one week after the date of this decision to file the new application for judicial review.
[16] The Bank of Nova Scotia has requested costs for the application of November 20, 2000 and for this application, each in the amount of $500. I am not prepared to exercise my discretion to order costs in the circumstances of this case.
ORDER
[17] IT IS ORDERED THAT the applicant shall be granted an extension of time, as outlined in paragraph 15 of this decision, in order to file his new application for judicial review.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
November 29, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: 00-T-43 |
| STYLE OF CAUSE: DOUGLAS M. LEE |
Applicant
-and-
THE BANK OF NOVA SCOTIA
Respondent
| DATE OF HEARING: MONDAY, NOVEMBER 27, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: O'KEEFE J. |
DATED: WEDNESDAY, NOVEMBER 29, 2000
| APPEARANCES BY: Mr. Douglas M.. Lee |
| For the Applicant, on his own behalf |
| Ms. Peigi R. Ross |
For the Respondent
| SOLICITORS OF RECORD: Douglas M. Lee |
9030 Side Road 27
R.R. #1
Hillsburgh, Ontario
N0B 1Z0
| For the Applicant, on his own behalf |
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
30 th Floor, Toronto-Dominion Tower
PO Box 371, Stn. Toronto Dom.
Toronto, Ontario
M5K 1K8
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001129
Docket:00-T-43
Between:
DOUGLAS M. LEE
Applicant
-and-
| THE BANK OF NOVA SCOTIA |
Respondent
| REASONS FOR ORDER |
AND ORDER