Date: 20020508
Docket: T-906-00
Neutral Citation: 2002 FCT 526
BETWEEN:
ARMONIKOS CORPORATION LTD.
Plaintiff
and
SASKATCHEWAN WHEAT POOL
Defendant
REASONS FOR ORDER
HARGRAVE P.
[1] Former counsel for the Defendant, as a result of illness, was unable to continue with this litigation. The trial date was imminent. His partners, who were caught by surprise, were unable to obtain an adjournment. They therefore appointed new counsel, who in turn became aware that the Defendant's intended expert rebuttal evidence had been neither obtained nor filed.
[2] At issue in the litigation is the existence of a charterparty. Crucial is the practice and etiquette of shipbrokers. The Plaintiff had served the expert evidence of a shipbroker. Thus the present motion, on behalf of the Defendant, for an extension of time within which to serve the rebuttal evidence of a shipbroker with a different view. I would observe that the world of ship broking is somewhat occult and even esoteric, thus the evidence of expert practising shipbrokers may be helpful to the Court.
[3] The late filing of an expert's report was considered by Mr. Justice Nadon, as he then was, in Transport Navimex Canada Inc. v. Canada (1997) 119 F.T.R. 70. While Mr. Justice Nadon emphasized the need for an explanation for delay, he did not consider all the relevant factors required for a time extension: he points out, at page 75, that it is the late filing of the motion itself for the extension that is fatal, for even if an adequate explanation had been given for the delay in filing the report, he would have dismissed the motion.
[4] An explanation for delay is only part of the test for an extension of time. Here I would note that the test for an extension of time, in this Court, has become almost a standard generic test, to be applied with the necessary variations, in most if not all instances, subject to what the Court of Appeal had to say in Grewal v. Minister of Employment and Immigration (1986) 63 N.R. 106 as to an open ended list of elements.
[5] The usual generic test takes a thorough approach and here I would refer to Canada v. Hennelly (1999) 244 N.R. 399 (C.A.), the test being set out at page 400, being:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
While the Court of Appeal in Hennelly does not refer to Grewal (supra), the test as set out the Court of Appeal in Hennelly is certainly derived from Grewal. The essence of Grewal, leaving aside the list of elements in the test which the Court there felt was open ended, is that there be a balancing of factors, weak factors being balanced and carried by strong factors (page 116), with the underlying consideration and indeed the essence being that justice between the parties be done (Chief Justice Thurlow at page 110 and Mr. Justice of Appeal Marceau at page 115).
[6] In the present instance the continuing intention is manifest in the intention of former defence counsel to file an expert's affidavit, that being evident from at least before the time that the Plaintiff's expert's affidavit was served. That the action itself has merit is evident not only from the pleadings, but also from the clear yet diametrically opposed views of the experts. The Plaintiff, in its motion material, does not say that there will be any prejudice and indeed counsel for the Plaintiff is to be commended for taking a straightforward position in that regard and in all else on this motion. Remaining is whether there exists a reasonable explanation for the delay.
[7] Key in all of this is former defence counsel's illness. I accept that he is unable to provide his own affidavit at this point. However, the evidence establishes that for some time he had been depressed and on medication, but that his actual illness only became manifest, to his partners, and then as a complete surprise, on 22 April 2002.
[8] Dealing more specifically with illness as an explanation for delay, I referred counsel to two well-known cases. The first is Chin v. Minister of Employment and Immigration (1994) 69 F.T.R. 77, a decision of Madam Justice Reed. There she was faced with overwork as a reason for a request for an extension of time. She began with the premise that time limits are meant to be complied with and that she did not grant time extensions merely because of the schedule or workload of counsel, for it was unfair to those who pulled out all the stops to meet deadlines (pages 79 and 80). She then went on to indicate when she would grant a time extension:
[8] On what grounds then do I grant an extension of time. I have already indicated that, in general, I am not receptive to requests which are based solely on the work load counsel has undertaken. When an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event. (page 80)
Madam Justice Reed looked for the unexpected or unanticipated, including illness, as an acceptable reason for a time extension.
[9] The second case is Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc. (1997) 75 C.P.R. (3d) 326, a decision of Mr. Justice Dubé. There counsel had delayed in filing an appeal as a result of a malady which left him unable to carry out his regular work tasks. The subsequent diagnosis was clinical depression. It had been treated, for some time, with anti-depressants. In Tom Pac it was common ground that counsel for the applicant had a bona fide intention to appeal, but could not function well enough to actually file an appeal. Mr. Justice Dubé also found that there was no evidence, apart from delay per se, that the other side would suffer any injustice. Mr. Justice Dubé, after considering all of this, referred to Bowen v. City of Montreal [1979] 1 S.C.R. 511, where Mr. Justice Pigeon set out a relevant principle:
This principle is that a party must not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such error without injustice to the opposing party. (page 519)
While this comment was in the context of an amendment, it has broader application. In Tom Pac the appellant was granted the extension.
[10] Considering all of this in the present context, counsel for the Defendant has set out a substantial case as to a continuing intention to serve an expert's report, as to the merit of the case and as to an absence of prejudice. Those elements more than balance the less forceful explanation for the delay. Here I note that the evidence as to the reason for the delay, illness, does have a weakness. The weakness is that while former defence counsel's illness had been going on for some time and that it was apparent that former counsel had left undone some clearly evident required work, there is no direct evidence as to how debilitating the illness was until it was announced to former defence counsel's partners. Aside from inferences and from what former defence counsel's doctor was able to say, it would only be former defence counsel who might give affidavit evidence of his capacity over the last several months: he is apparently not capable of giving either evidence or any assistance at this time.
[11] The strength and weakness of the elements set out in Hennelly, in the present instance, when balanced out, still leave the Defendant a substantial case for the time extension. Taking all matters into consideration, including the comment of Mr. Justice Pigeon in the Bowen case as to maintaining a party's rights, subject to injustice to the other side, it is appropriate to grant the time extension to allow the Defendant to serve its expert's report, a report which counsel for the Plaintiff has had in his possession for a few days now. Indeed it is proper to grant the extension in order to do justice between the parties.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
8 May 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-906-00
STYLE OF CAUSE: Armonikos Corporation Ltd. v. Saskatchewan Wheat Pool
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 7, 2002
REASONS FOR ORDER: HARGRAVE P.
DATED: May 8, 2002
APPEARANCES:
George J. Pollack FOR PLAINTIFF
William M. Burris FOR DEFENDANT
Christopher Elsner
SOLICITORS OF RECORD:
Gowling Lafleur Henderson FOR PLAINTIFF
Montréal, Quebec
Bull, Housser & Tupper FOR DEFENDANT
Vancouver, British Columbia