Date: 19991028
Docket: T-76-99
Between:
GILLES TREMBLAY,
Plaintiff,
AND
ATTORNEY GENERAL OF CANADA,
Defendant.
Docket: T-222-99
Between:
GILLES TREMBLAY,
Plaintiff,
AND
ATTORNEY GENERAL OF CANADA,
Defendant.
ORDER AND REASONS FOR ORDER
LEMIEUX J.
[1] On October 5, 1999 the prothonotary Richard Morneau ("the prothonotary") denied the plaintiff Gilles Tremblay, who represented himself, an extension of time to serve and file his record in two similar applications for judicial review regarding notices of reassessment for the 1986, 1989, 1990 and 1991 taxation years (received by the plaintiff on December 22, 1998 in case T-76-99) and 1992 (received by the plaintiff on January 18, 1999 in case T-222-99).
[2] The plaintiff appealed this decision, applicable in both cases, pursuant to Rule 51 of the Federal Court Rules ("the Rules").
[3] The defendant agreed, in accordance with Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.), that I am not bound by the prothonotary"s opinion and must retry the matter de novo since the decision by the prothonotary is a discretionary one and the question decided by him has a decisive influence on the outcome of the points at issue in the two motions.
[4] On August 24, 1999 the prothonotary adjourned the hearing of the plaintiff"s motions for extensions of time to allow him to make amendments to his two motions to provide reasons for non-compliance with the deadlines laid down by the Rules and to explain how prima facie his motions could be supported in law with reasonable chances of succeeding.
[5] On September 10, 1999 the plaintiff filed an amended notice of motion in his two cases pursuant to the order made by the prothonotary on August 24, 1999. Instead of doing what the prothonotary asked him to do in his order of August 24, 1999, the plaintiff essentially repeated the same arguments already made in his motions for extensions, filed on August 6, 1999, and supported with the same documentation, namely a letter written to him
by the Department of National Revenue on July 23, 1999 regarding the treatment of his tax file in the 1994 and 1995 taxation years.
[6] On October 5, 1999 the prothonotary dismissed the plaintiff"s motions for extensions on the ground that:
| [TRANSLATION] |
| Since despite the extraordinary opportunity offered him by the order of this Court on August 24, 1999 the plaintiff has not met the requirements of that order in his amended motion record . . . |
[7] The prothonotary mentioned that the plaintiff"s affidavit and Exhibit A dealing with the 1994-1995 taxation years were essentially the same found in the original record applying for an extension of time on August 6, 1999. The prothonotary concluded:
[TRANSLATION]
| Despite the opportunity he was given to complete his evidence, the plaintiff in the case at bar has submitted no specific facts to indicate that the entire period which has elapsed since expiry of the deadline for filing his notice of motion was justified by factors beyond his control and his motion for an extension of time was made at the earliest possible time. Further, the plaintiff has not shown that he has a good cause of action with reasonable chances of succeeding. |
Analysis
[8] In accordance with Aqua-Gem, supra I must exercise my own discretionary authority in the case at bar.
[9] An extension is not automatically granted: the plaintiff has the burden of proof. His affidavit in support of these motions for extensions is devoid of content.
[10] The components of the exercise of discretionary authority in an extension situation have been clearly defined by the courts (Grewal v. M.E.I., [1985] 2 F.C. 263 (F.C.A.)); Bellefeuille v. Human Rights Commission, [1995] 172 N.R. 401 (F.C.A.)). Among these factors are (1) reasonable justification, (2) reasonable chance of succeeding and (3) absence of prejudice.
[11] In Chin v. M.E.I., [1993] F.T.R. 72, Reed J., considering explanations that might show why the deadline was not observed, indicated that the Court should look at factors beyond the plaintiff"s control.
[12] I should mention that the plaintiff was four months beyond the deadline in case T-76-99 and three months in case T-222-99.
[13] In my opinion, the plaintiff offered no explanation as to why he was unable to serve and file his records within the deadline set by the Rules. This lack of explanation is fatal to the motions for extensions, especially in the context of the adjournment given by the prothonotary on August 24, 1999 for the very specific purpose of allowing the plaintiff to meet the Court"s requirements in this respect.
[14] On appeal, the plaintiff argued that in his reply of August 20, 1999 the defendant had misled the plaintiff by false and untruthful explanations about the basis and scope of the motions in his two cases. In my opinion, this argument by the plaintiff is without merit. First of all, he misinterpreted the written submissions of the defendant, and second, he misunderstood the reasons for the prothonotary"s refusal on October 5, 1999.
[15] Further, the defendant [sic] did not deal with the prejudice that would be suffered by the defendant and submitted no arguments suggesting he has a cause of action with a reasonable chance of succeeding.
Disposition
For these reasons, the appeal is dismissed.
| François Lemieux Judge |
Certified true translation
Bernard Olivier, LL. B.
| Federal Court of Canada Trial Division Date: 19991028 Docket: T-76-99 Between: GILLES TREMBLAY, Plaintiff, AND ATTORNEY GENERAL OF CANADA, Defendant. Docket: T-222-99 GILLES TREMBLAY, Plaintiff, AND ATTORNEY GENERAL OF CANADA, Defendant.
ORDER AND REASONS FOR ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-76-99 |
| STYLE OF CAUSE: GILLES TREMBLAY, |
Plaintiff,
AND
ATTORNEY GENERAL OF CANADA,
Defendant.
T-222-99
GILLES TREMBLAY,
Plaintiff,
AND
ATTORNEY GENERAL OF CANADA,
Defendant.
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 25, 1999 |
| REASONS FOR ORDER: LEMIEUX J. |
| DATED: OCTOBER 28, 1999 |
APPEARANCES:
| Gilles Tremblay for the plaintiff |
| Dominique Gagné for the defendant |
SOLICITORS OF RECORD:
| GILLES TREMBLAY for the plaintiff |
Lanoraie d"Autray, Quebec
| DEPUTY ATTORNEY GENERAL OF CANADA for the defendant |
Ottawa, Ontario