Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
7470, Denis-Jamet, app. 3
Montréal (Québec) H1E 6V5
and
1100, boul. René-Lévesque Ouest, bureau 2100
Montréal (Québec) H3B 4X8
Telephone: 514-394-7200
Written motion decided without appearance by the parties.
Order made at Ottawa, Ontario, on February 20, 2006.
REASONS FOR ORDER: PELLETIER J.A.
Date: 20060220
Docket: A-393-05
Citation: 2006 FCA 78
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ÉRIC SARRAZIN
7470, Denis-Jamet, app. 3
Montréal (Québec) H1E 6V5
Appellant
and
AÉROPORTS DE MONTRÉAL (ADM)
1100, boul. René-Lévesque Ouest, bureau 2100
Montréal (Québec) H3B 4X8
Telephone: 514-394-7200
Respondent
REASONS FOR ORDER
[1] Following a complaint filed by the appellant, Mr. Sarrazin, the Deputy Privacy Commissioner of Canada issued a final report on March 15, 2005, in which she recommended that the respondent Aéroports de Montréal provide the appellant within 30 days with certain personal information he was seeking, and if necessary provide within the same time period any reasons to justify its refusal to comply with her recommendations.
[2] It would appear that the respondent has not complied with any of the recommendations made by the Deputy Commissioner. The Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (the Act), provides for a 45‑day period of time from the date of a report for filing an application for a remedy arising from the report. This period of time elapsed without the appellant making any application. It was not until July 19, 2005 that the appellant filed in the Federal Court an application for an extension of time to file his notice of application. On August 18, 2005, the Federal Court dismissed the application for an extension. The appellant appealed this decision to this Court on September 9, 2005, the date his notice of appeal was filed. Since that date, the appellant has done nothing to prosecute his case.
[3] On January 5, 2006, the respondent filed a motion to dismiss the appeal for delay. In response, counsel for the appellant filed his own affidavit in which he stated that counsel for the respondent had never tried to contact him to negotiate an agreement on the appeal record, and what is more had never given him an opportunity to remedy any procedural defect. He raised the stakes by also filing an application for an extension of time to file an agreement on the content of the appeal record, without thereby admitting that such an agreement had been made between the parties, relying once again on his own affidavit. The respondent did not object to the notice for an extension of time except by its motion to dismiss the appeal.
[4] Rule 82 of the Rules for regulating the Practice and Procedure in the Federal Court of Appeal and the Federal Court provides that, except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit. In the case at bar,
no leave was granted. This is in itself a sufficient reason to allow the motion to dismiss the appeal and to dismiss the motion for an extension of time as, once counsel’s affidavit is excluded, there is no evidence in the record of circumstances that could justify an extension of this appeal in view of the appellant’s failure to act. The same reason also suffices to dismiss the application for an oral hearing as there is no factual basis on which counsel for the appellant could develop his arguments.
[5] Despite these procedural defects, however, it is not in the interests of justice to close the door at this stage to someone alleging, without denegation on the part of the respondent, that a federal agency has ignored a recommendation from the Office of the Privacy Commissioner of Canada. The motion to dismiss is dismissed as being premature. The motion for an extension of time is also dismissed on the ground that there is no evidence to support the motion.
[6] As the notice of appeal was filed on September 9, 2005, the appellant will in the next few weeks receive a status review notice. If the appellant wishes to pursue his appeal, he will file with the Court in response to the status review notice:
- his submissions on the merits of his appeal and his wish to proceed, and explaining from his failure to act with respect to his appeal;
- either the agreement concluded between the parties on the content of the appeal record and a motion for an extension of time to file it, or a motion for an order determining the content of the appeal record;
- his undertaking to comply with all other deadlines set out in the Rules as to the subsequent stages of his appeal.
[7] If he does not satisfy the Court’s concerns about these points, the appellant is exposed to have his appeal struck out.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-393-05
STYLE OF CAUSE: ÉRIC SARRAZIN
v.
AÉROPORTS DE MONTRÉAL (ADM)
WRITTEN MOTION DECIDED WITHOUT APPEARANCE BY THE PARTIES
REASONS FOR ORDER BY: Pelletier J.A.
DATED: February 20, 2006
WRITTEN SUBMISSIONS:
Mathieu Marchand FOR THE APPELLANT
Lukasz Granosik FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mathieu Marchand FOR THE APPELLANT
Montréal, Quebec
Ogilvy Renault FOR THE RESPONDENT
Montréal, Quebec