Date: 19991221
Docket: T-1599-98
BETWEEN:
MERCK FROSST CANADA INC.
and MERCK & CO., INC.
Applicants
-and-
THE MINISTER OF HEALTH
and ALCON CANADA INC.
Respondents
REASONS FOR ORDER
DUBÉ J.
[1] The Respondent, Alcon Canada Inc. ("Alcon") appeals the order of Mr. Lafrenière, Prothonotary, rendered December 13, 1999 allowing the Applicants ("Merck Frosst") leave to file a memorandum of fact and law of more than 30 pages, extending the time for serving and filing the Applicants" record to December 15, 1999, and allowing the Respondent until January 28, 2000 to deliver their records. He awarded costs to Alcon of $1,000.00 in any event of the cause.
[2] Alcon alleges that the Prothonotary erred in granting the extension in question on the ground that Merck Frosst did not satisfy all the requirements which might justify his discretion to grant such an extension.
[3] In his written reasons for the order, the Prothonotary wrote that he took into account a number of factors including the justification for the delay and whether the delay will cause prejudice. He stated that the overriding principle in applications for extension of time is that justice must be done. And, after hearing two hours of arguments, he wrote that in exercising his discretion he reviewed the entire procedural history, noting particularly that the parties were consistently operating outside the time limits provided under the Rules, having sought and been granted a number of extensions over the past two years.
[4] He agreed with counsel for Alcon that the reason advanced by Merck to justify the delay is less than satisfactory. However, he took into consideration the fact that the production of the record is one of the last steps in a proceeding which has been vigorously pursued by both parties. He noted that Alcon will not suffer any prejudice as the hearing date scheduled for early February 2000 shall not be affected . He followed Rule 410(2) which provides that the costs of the motion shall be borne by the party requesting the extension of time.
[5] I cannot find that the Prothonotary erred in law or in fact in the exercise of his discretion. In determining whether an extension of time should be granted, several factors may be considered namely: an intention formulated within the time limit, the existence of an arguable case, the cause and actual length of the delay, and whether there was prejudice caused by the delay. See Nelson v. Commissioner of Corrections, [1996] 206 N.R. 180 (F.C.A.). These considerations are criteria which determine whether or not it is in the interest of justice to grant an extension. See Merck and Co. v. Newfarm Inc., [1998] F.C.J. 1934 (F.C.T.D). In other words, justification for an extension of time to file a procedure must depend on the facts of the particular case, as mentioned by Thurlow, C. J. of the Federal Court of Appeal in Gruwal v. Minister Employment and Immigration (85-A-55) at p. 110:
| [14] The underlying consideration, however, which, as 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. |
[6] It is obvious from perusing the file that both parties followed a timetable outside the Rules of this Court, which is not commendable. They both obtained extensions for various reasons of their own. This appears to be a complex matter. So far, Merck Frosst has delivered 457 pages of affidavit evidence and exhibits. Alcon has delivered 596 pages of affidavit evidence and exhibits and there are 903 pages of transcripts of cross-examinations to add to the paper trail. It is obvious that Merck Frosst would be severely prejudiced if the application for leave to file its record were denied and it were precluded from proceeding with the main application.
[7] The standard on appeal where the Prothonotary"s order is discretionary in nature has been set by the Federal Court of Appeal in Canada v. Aquagem Investments Ltd., [1993] 2 C.F. 425 (F.C.A.). Discretionary orders of Prothonotaries ought not to be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of the discretion was based upon a wrong principle or misapprehension of the facts or they raise questions vital to the final issue of the case.
[8] Even if I did exercise my own discretion de novo, I would come to the same conclusion as the Prothonotary. It would be manifestly unfair, under the circumstances, after both parties have been allowed to travel a long and unruly road off the main highway, to deny one of the parties the right to take the final procedural step in its journey.
[9] Consequently the application is dismissed with costs.
"J.E. Dubé"
Judge
Toronto, Ontario
December 21, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1599-98 |
| STYLE OF CAUSE: MERCK FROSST CANADA INC. |
and MERCK & CO., INC.
- and -
| THE MINISTER OF HEALTH and |
ALCON CANADA INC.
REASONS FOR ORDER
| BY: DUBÉ J. |
DATED: TUESDAY, DECEMBER 21, 1999
| APPEARANCES: Mr. William H. Richardson |
| For the Applicants |
Mr. Gunars A. Gaikis
For the Respondent, Alcon Canada Inc.
| SOLICITORS OF RECORD: |
Smart & Biggar
Barristers and Solicitors
438 University Avenue
Suite 1500
Toronto, Ontario
M5G 2K8
| For the Applicant |
| McCarthy Tétrault |
Barristers and Solicitors
Suite 700
Toronto Dominion Bank Tower
Toronto Dominion Centre
Toronto, Ontario
M5K 1E6
| For the Respondent, Alcon Canada Inc. |
FEDERAL COURT OF CANADA
Date: 19991221
Docket: T-1599-98
Between:
| MERCK FROSST CANADA INC. |
and MERCK & CO., INC.
Applicants
- and -
| THE MINISTER OF HEALTH and |
ALCON CANADA INC.
Respondents
REASONS FOR ORDER