Date: 19980831
Docket: T-2742-97
BETWEEN:
WILLIAM L. WOO,
Applicant,
- and -
NATIONAL PAROLE BOARD,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out a peremptory case management order that the Applicant, Mr. Woo, bring a motion on 28 August 1998, pursuant to Rule 385(1)(b), to allow viva voce expert evidence, failing which any expert evidence at the hearing of this matter in October would be in affidavit form. On 28 August counsel for the Applicant explained that Mr. Woo was still trying to organize outside funding for expert evidence on the medical use of marijuana and therefore counsel was unable to proceed with the motion.
[2] While there is always the jurisdiction to extend a peremptory "unless" order, in appropriate circumstances, this is not such an instance. Thus the present Order, at the conclusion of the motion, that there would be no viva voce evidence when this application is heard in the Fall. All of this deserves elaboration, beginning with some pertinent background.
SOME PERTINENT BACKGROUND
[3] Mr. Woo's judicial review application arises out of an indication by the National Parole Board that it would cancel his parole by reason of a breach of a condition of his parole that he abstain from non-prescription drugs, in this instance, marijuana. Mr. Woo, in his originating notice of motion of 18 December 1997, says that the use of marijuana has been prescribed to treat his glaucoma.
[4] On 31 March 1998, Mr. Woo obtained an interlocutory order preventing the National Parole Board from suspending his parole "... for smoking medical marijuana until the hearing of this action".
[5] The National Parole Board, concerned both about delay in having this case heard and that Mr. Woo's use of marijuana could lead to criminal activity, embarrassing all concerned, successfully applied, in mid-July, to have this matter specially managed.
[6] The first case management conference took place 4 August 1998. One of the issues canvassed was Mr. Woo's desire to call viva voce expert evidence in addition to the usual affidavit evidence and here I would note that to date Mr. Woo had not filed his expert's affidavit. In any event the calling of viva voce evidence is an issue which counsel had attempted to raise when the Court heard the interlocutory motion for a stay of any suspension of parole, in March of 1998: that request to call viva voce evidence was held to be premature.
[7] At the 4 August 1998 management conference counsel agreed that the motion for viva voce evidence would be brought at a special sitting 18 August. On 18 August counsel for Mr. Woo, who had overlooked the mandatory nature of the scheduling of the motion, was not in a position to proceed. In addition, Mr. Woo was having difficulty organizing outside funding for his case. Counsel for the National Parole Board was concerned that delay might jeopardize an October hearing date. Thus the peremptory nature of the order setting this motion for hearing on 28 August.
[8] On 28 August counsel for Mr. Woo was still not in a position to proceed. Counsel expressed concern about what her client felt was prejudicial undue haste on the part of the Court in managing the matter toward an October hearing. Counsel for Mr. Woo requested a further adjournment of the motion to allow viva voce evidence. Thus the present consideration of the nature of a peremptory order and whether, in the circumstances, a further adjournment would be appropriate.
CONSIDERATION
[9] Mr. Justice Urie, in writing the Court of Appeal's judgment in Canadian National Railway Company v. The "Norango" (1976) 2 F.C. 264, pointed out that no judge might fetter himself or herself or any other judge by making an order in a mandatory way (p. 268).
[10] The English Court of Appeal, in Samuels v. Linzi Dresses Ltd. [1981] 1 Q.B. 115, relying in part on The Queen v. Bloomsbury and Marylebone County Court: Ex parte Villerwest Ltd. [1976] 1 W.W.R. 362, a decision of the Court of Appeal, specifically noted that: "... the law today is that a court has the power to extend the time where an 'unless' order has been made but not been complied with; but that is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored." (p. 126).
[11] Subsequently Mr. Justice Walsh dealt with an instance in which a peremptory order for particulars, failing which the action would be dismissed without further order, had been breached. In that case, Jupiter International Ltd. v. Dart Containerline Co. Ltd. [1982] 2 F.C. 800, he allowed an extension of several days for service of particulars, particulars which had been prepared within the time limit, but inadvertently not delivered to the defendant.
[12] In determining whether the Applicant, in the present instance, has demonstrated sufficient reason for an extension of time within which to bring his motion, I have considered, on the one hand, whether the justice of the situation requires an extension, but on the other hand I have kept in mind the caution of the Court of Appeal, in the Linzi case, that relief in the case of a breach of a peremptory order, even one involving a lapse of only a few days, is not automatic, for the discretion of the court should be used cautiously, with proper regard for the necessity of maintaining the principle that orders are to be complied with and are not to be ignored.
[13] The nature of judicial review is such that the Court's decision ought to be available to the parties within a reasonable time and indeed this means a decision with as much speed as possible and with as few of the encumbrances and delays that are associated with trials as is possible: see for example Canada v. MacInnis [1994] 2 F.C. 464 at 470 - 471 (F.C.A.). For this reason time lines are set out in the Rules. This matter was begun under the pre-April 1998 Rules, which required that the applicant's affidavits be filed at the time of the filing of the notice of motion. The Applicant's expert affidavits should have been filed in December of 1997 when this proceeding was commenced.
[14] Presumably the Applicant was prepared to speak to the issue of viva voce evidence in March of 1998, but the judge refused to deal with the matter as being premature. Counsel for Mr. Woo agreed on a date for the motion at the 4 August 1998 case management conference. That date was in the nature of a mandatory special sitting. That motion was adjourned once at the request of counsel for the Applicant. In arguing for a second adjournment, counsel did not provide written argument to deal with either the request for an adjournment or with the substance of the motion. While counsel did present some affidavit material bearing on the adjournment it was minimal.
[15] From the point of view of the Respondent a further delay, on the question of viva voce evidence, could well prejudice the hearing date and, overall, be a potential embarrassment to everyone concerned. This judicial review proceeding has been ongoing now for some eight months. It not only involves a matter on which the Applicant has obtained an interlocutory order negating the National Parole Board's desire to revoke parole, but also one issue of more general importance. I do not believe there is any unseemly haste on the part of either the Respondent or of the Court in pressing the case on to a hearing in October, some ten months after the application for review was commenced.
[16] Counsel for Mr. Woo submits there has been prejudice because Mr. Woo has not yet been able to secure funding, from a third party, to cover his expenses and for that reason sought an adjournment of the present motion. Yet waiting for funding, in the context of legal aid, and the situation is no different here, is certainly not an excuse for allowing a time limit to pass:
| "It has been said many times that waiting for confirmation of legal aid is not an adequate excuse for allowing a prescribed time limit to pass. This principle is virtually inscribed in stone. Justice Mahoney, for the Federal Court of Appeal, put it this way: |
| 'I am not prepared to grant an indefinite extension. The policy of the Immigration Act and Federal Court Immigration Rules as to the expeditious processing of leave applications is transparently clear. The dilatory initiation of Legal Aid applications, delays in providing opinion letters, which counsel know very well will be required, and the ever slower processing of such applications by some Legal Aid Committees cannot be permitted to defeat the policy of the Act and Rules. As I had occasion to observe in another application for an extension, 'the agenda of the London & Middlesex County Legal Aid Committee cannot dictate this court's administration of the law and application of its Rules.' ' (at p. 159). |
| The principle was confirmed in Rafique v. Minister of Employment and Immigration (1992), 96 F.T.R. 7 (T.D.), Awogbade v. Canada (Minister of Citizenship and Immigration) (1995), 94 F.T.R. 184 (T.D.), Morales v. Canada (Secretary of State) (1995) 91 F.T.R. 299 (T.D.), Ho v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 3 (T.D. Protho.) and Mesidore v. Canada (Minister of Citizenship and Immigration) (1996), 106 F.T.R. 221 (T.D.). Mr. Justice Teitelbaum observed that 'waiting for approval for legal aid alone is not sufficiently good reason to grant extension of time' (Mihailitsenko et al v. Canada (M.E.I.) (IMM-100-93) (March 19, 1993)." (Kiani v. Canada (Minister of Citizenship and Immigration) (1997) 124 F.T.R. 299 at 301). |
In Kiani Mr. Justice Muldoon accepted that waiting for funding is alone not a sufficiently good reason for a time extension. He then went on to consider whether the Applicant had an arguable case and whether the other side would be prejudiced if further time were allowed.
[17] In the present instance there is insufficient material for me to determine whether Mr. Woo has an arguable case for, there is no expert's affidavit on file. Nor is there any other substantial affidavit material bearing on the proposed viva voce expert testimony by which to determine whether that evidence might make an arguable case.
[18] As to the National Parole Board, were I to allow yet another adjournment of the motion, there would certainly be some prejudice. First, to adjourn the motion yet again could well jeopardize the October hearing date. Second, there could well be embarrassment and likely prejudice to the National Parole Board were its fears borne out and Mr. Woo get into difficulties as a result of the alleged breach of parole conditions. Third, to leave the National Parole Board uncertain at this late date as to the nature of the proposed viva voce expert testimony, no expert's affidavit having been filed, would be clearly prejudicial.
CONCLUSION
[19] Certainly a time set in a peremptory order is not an absolute in all circumstances. But here there is no sufficient reason for a further time extension on a date set in a peremptory manner in an order that, for good reason, was made to be complied with and was not intended to be ignored. All things considered this a proper situation in which to uphold a peremptory order. Any expert testimony, on behalf of Mr. Woo, must be by affidavit. This determination is, of course, without prejudice to any motion which Mr. Woo might bring to allow late filing of expert affidavits and any opposition to such a request which the National Parole Board might wish to make.
[20] Counsel did not make submissions as to entitlement to costs. It would not serve any useful purpose to award costs against Mr. Woo at this time. Costs will be in the cause.
(Sgd.) "John A. Hargrave"
PROTHONOTARY
Vancouver, British Columbia
31 August 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: August 28, 1998
COURT NO.: T-2742-97
STYLE OF CAUSE: WILLIAM L. WOO
v.
NATIONAL PAROLE BOARD
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated August 31, 1998
APPEARANCES:
Ms. Donna Turko for Applicant
Ms. Donnaree Nygard for Respondent
SOLICITORS OF RECORD:
Turko & Currie
Vancouver, BC for Applicant
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada