Date: 20050331
Docket: A-25-05
Citation: 2005 FCA 110
Present: EVANS J.A.
BETWEEN:
FRANCINE DESORMEAUX
Appellant
(Respondent to Motion)
and
CORPORATION OF THE CITY OF OTTAWA
Respondent
(Moving Party)
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on March 31, 2005.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20050331
Docket: A-25-05
Citation: 2005 FCA 110
Present: EVANS J.A.
BETWEEN:
FRANCINE DESORMEAUX
Appellant
(Respondent to Motion)
and
CORPORATION OF THE CITY OF OTTAWA
Respondent
(Moving Party)
REASONS FOR ORDER
[1] This is a motion brought under rules 369 of the Federal Courts Rules by the City of Ottawa, requesting that the Court dismiss the appeal of Francine Desormeaux from the decision of Heneghan J. in City of Ottawa v. Canada (Human Rights Commission) and Francine Desormeaux, 2004 FCT 1778.
[2] In that decision, Heneghan J. granted the City of Ottawa's application for judicial review and set aside a decision of a Canadian Human Rights Tribunal that Ms Desormeaux had been dismissed from her employment by the City in contravention of the Canadian Human Rights Act.
[3] The basis of the City's motion is that, although named as a respondent to the application for judicial review, Ms Desormeaux filed no notice of appearance pursuant to rule 305, received none of the documents, and, although present at the hearing of the application, did not seek to address the Court and was asked no questions by the Judge. The Commission has filed no notice of appeal from Heneghan J.'s decision. In these circumstances, the City argues that Ms Desormeaux has no standing to appeal.
[4] In my opinion, it cannot be inferred from Ms Desormeaux's failure to file a notice of appearance that she did not intend to oppose the City's application. There is no evidence that she intended thereby to waive all her rights as a party. Rather, her intention seems to have been to oppose the application through the Commission and to leave it to counsel for the Commission to represent her interest, as well as the public interest, in defending the award of the Tribunal under review.
[5] It would be a grave step to deprive Ms Desormeaux, a respondent in the proceeding below, of her right of appeal on the technical ground advanced by the City. It is a step that I would take only if clearly required by the law. In my opinion, the law does not so require.
[6] The Federal Courts Rules do not provide that only parties who have filed a notice of appearance may appeal. The only consequence prescribed in the rules when a party fails to file a notice of appearance within the stated time is that the party is not entitled to be served with the documents in the proceeding prior to final judgment, unless the Court orders otherwise: rule 145.
[7] Counsel argues that the failure of the rules to provide that a party who does not file a notice of appearance is a gap in the rules which the Court may fill under rule 4 by analogy with the practice of the superior court of the province to which the matter most closely relates. In this case, that province is Ontario. Rule 61.04 (1.1) of Ontario's Rules of Civil Procedure provides that a notice of appeal need not be served on, "(b) a respondent who has not delivered a notice of appearance, unless the respondent was heard at the hearing with leave". Counsel for the City argues that this rule precludes a party who has not filed a notice of appearance from appealing.
[8] I do not accept this argument. First, I am not satisfied that there is gap in the Federal Courts Rules on this issue. The fact that they prescribe fewer consequences for a failure to file a notice of appearance than provincial rules does not in itself constitute a gap. Considerations of efficiency or fairness do not require that respondents should have no right of appeal because they did not file a. notice of appearance. Second, the Ontario Rule cited by counsel does not state that only a respondent who has filed a notice of appearance in a proceeding may appeal. Rule 61.04 (1.1) merely describes another document that need not be served on a party who has not filed a notice of appearance.
[9] Counsel was unable to cite any judicial authority for the proposition that a party's right of appeal is contingent on filing a notice of appearance. Nor did counsel allege that allowing Ms Desormeaux's appeal to go forward in the absence of a notice of appearance would prejudice the rights of the City.
[10] For these reasons, the City of Ottawa's motion to dismiss the appeal is denied, with costs to Ms Desormeaux in any event of the cause.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-25-05
STYLE OF CAUSE: Francine Desormeaux v. Corporation of the City of Ottawa
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: The Honourable Mr. Justice Evans
DATED: March 31, 2005
WRITTEN REPRESENTATIONS BY:
Ms Alison M. Dewar FOR THE APPELLANT
Mr. Stephen Bird FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP FOR THE APPELLANT
Barristers and Solicitors
Ottawa, Ontario
Bird McCuaig Russell FOR THE RESPONDENT
Barristers & Solicitors
Ottawa, Ontario