Date: 20010129
Docket: T-598-00
BETWEEN:
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant
- and -
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
ARONOVITCH, P.
Background:
[1] The applicant, Professional Institute of the Public Service of Canada ("PIPSC") was the representative and certified bargaining agent for approximately 9,000 auditors employed by the Department of National Revenue. On November 1, 1999, the Canada Customs and Revenue Agency was statutorily created to replace the Department of National Revenue. As of that date, the 9,000 members of PIPSC were automatically transferred to the employment of the respondent Agency which now carries out the mandate of the former department.
[2] PIPSC continues to represent the effected employees for the purposes of collective bargaining which is governed by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ( the "PSSRA"). The Agency itself is now a separate employer under the PSSRA.
[3] At issue in this proceeding are the staffing recourse provisions applicable to the auditors represented by the union. Prior to November 1, 1999, these were outlined in the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA"). As of the effective date, the PSEA no longer applies to the Agency, which now exercises staffing authority pursuant to its own legislation. In order words, the Agency, rather than the Public Service Commission, now has exclusive authority to appoint and promote employees.
[4] The Canada Customs and Revenue Agency Act, S.C. 1999, c. 17 ( the CCRAA) obliges the Agency to develop and implement its own staffing recourse policy as follows:
| 54(1) The Agency must develop a program governing staffing, including the appointment of and recourse for, employees. |
[5] Of note, subsection 54(2) of the CCRAA prohibits the parties to a collective agreement from negotiating staffing provisions governed by the legislation. Moreover, subsection 91(1) of the PSSRA, which provides for employee grievances, prohibits these where there is an "administrative procedure for redress ... provided in or under an act of Parliament". That grievance procedure is not available to the Agency's employees on staffing matters, as the Agency views its staffing program as falling within this classification. The Agency, has therefore refused to accept such a grievance on jurisdictional grounds.
[6] Further to the statutory requirement, the Agency has developed a "Staffing Program", including the "Directives for Recourse on Staffing", which was implemented in conjunction with the coming into force of the CCRAA on November 1, 1999. The appointment of staff and staffing recourse measures have been governed exclusively by these policies as of the inception of the Agency.
[7] The Agency brings this motion to strike the Union's notice of application, the substance of which is produced below in its entirety:
Application
| The applicant makes application for: |
| (1) a declaration that the Canada Customs and Revenue Agency has failed to develop a program for staffing recourse, contrary to s.54(1) of the Canada Customs and Revenue Agency Act; |
| (2) mandamus requiring the Canada Customs and Revenue Agency to implement a staffing recourse in accordance with the requirements of s.54(1) of the Canada Customs and Revenue Agency Act; and |
| (3) such other relief as counsel may request and the court to find just. |
| The grounds of the application are: |
| 1. The Agency has failed to develop a program for staffing recourse, as it is obliged to do under s.54(1) of the Canada Customs and Revenue Agency Act. |
| The application will be supported by the following material: |
| 1. The Affidavit of Robert Luce; and |
| 2. Such other materials as counsel may advise and Court allow. [my emphasis] |
[8] While the application is succinct, the affidavit of Robert Luce, made in support of this application is quite fulsome and includes, as attachments, the whole of the Staffing Program and the Directives for Recourse on Staffing as well as sections of the former statute governing the grievance process in staffing matters.
[9] Mr. Luce is an employee of PIPSC who has served as the negotiator for the bargaining unit covering the auditors. In his affidavit, he examines in detail the provisions of the new staffing program, and concludes that the Agency has not met its statutory obligations to provide "meaningful staffing recourse".
[10] The following summarizes Mr. Luce's evidence. The staffing process comprises three stages, namely: a review of the candidate's prerequisites, the assessment of the candidate and ultimately, placement. The Agency has developed three different review mechanisms which a candidate can choose, as applicable, if denied at any of these stages.
[11] The essential difference in the newly instituted staffing process is that, at each level, the outcome is not arrived at by a comparison or ranking among the candidates. Ultimately, the placement of a candidate results from his or her comparison against specified criteria rather than a ranking of individuals according to merit. This, attests Mr. Luce, is a departure from the fundamental premise of the former statutory regime which required selection for appointment to be made according to merit.
[12] Here are some of the perceived shortcomings of the system as alleged in the Luce affidavit. Unlike the grievance process under the PSEA, the new regime does not allow an individual to have a representative for the purposes of "Individual Feedback", the first level review process. An unsuccessful candidate at the second, assessment stage, can initiate both Individual Feedback and the "Decision Review Process". Here again the individual is required to focus on his own treatment without reference to the treatment of other candidates. The affected individual at the Decision Review Process can apparently not call any witnesses and the person who may accompany the individual is not entitled to participate in the review. At the final stage, a candidate dissatisfied with Individual Feedback can pursue either of the Decision Review Process or "An Independent Party Review". The latter is the only appeal available to someone other than a management employee.
[13] The affidavit notes the critical deficiencies of the process in comparison with its predecessor. The systemic shortcomings may be summarized as follows. The current process provides limited grounds for recourse, a limited right to be represented, limited disclosure of relevant documents regarding the treatment of other employees and the lack of meaningful redress. The ultimate Third Party Review merely entails the power or authority to make recommendations without more. The recommendation itself results from a review which is conducted as an "administrative process" by an individual paid by the Agency and therefore presumably lacking in independence.
The Agency's grounds for dismissal
[14] The respondent's grounds for the within motion are threefold; the application is bereft of any possibility of success; the applicant lacks the requisite standing to bring the applications; and the application is time-barred.
[15] It is without doubt that this court has the jurisdiction to summarily dismiss an application that is bereft of any possibility of success. The Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at p. 600 has, however, set a very high threshold for striking an application. It is only possible to summarily dismiss a notice of application which is manifestly futile and unfounded. Such instances are stated to be "very exceptional" and cannot include cases where there is simply a debatable issue. It follows that an application which raises a serious, justiciable issue cannot be summarily dismissed and needs be adjudicated on the merits.
[16] Here the respondent challenges as unfounded each and both pleas, for a declaration and for mandamus. I shall therefore deal with the two separately.
The declaration
[17] At this juncture, it is useful to summarize the gist of subsections 18.1(3) and (4) of the Federal Court Act, R.S.C. 1985, c. F-7. The court is empowered to grant the relief sought by the applicant where it is satisfied, inter alia, there has been an excess of jurisdiction, a failure to observe principles of natural justice, an error of law, or any other action of a federal board or tribunal, that is contrary to the law.
[18] The respondent argues, on the basis of the applicant's own affidavit evidence, that the Agency has in fact developed and implemented a program for staffing recourse as it is obliged to under subsection 54(1) of the CCRAA. The applicant has failed to identify any legal deficiencies in the staffing program, stating as the sole ground for the application that the agency has failed to develop a program as obligated by the statute. Thus, in the absence of subsection 18.1(3) and 18.1(4) grounds, the court has no jurisdiction to grant the remedy sought in this application. This is especially so, the respondent argues, since the court in judicial review is required to establish whether any subsection 18.1(4) grounds exist, not to determine the merits of the matter nor to make a decision pertaining solely to findings of fact. As no legal grounds are stated in the application, the respondent submits the prayer for a declaration has to be viewed as a declaration as to facts which the court cannot grant.
[19] In response, the union urges that the application raises serious questions, including whether, as a matter of law, or policy, it was the intent of the legislator to dispense with the application of the merit principle to employment, which after all, remains in the ambit of the public service.
[20] The applicant begins by suggesting that "recourse" which is undefined in the CCRAA must effectively mean "redress". While the courts have not interpreted the term "recourse" in the context of an analogous statutory framework, the word "redress" has been considered. Here the applicant relies on the comments of the Federal Court of Appeal to the effect that a complainant must be able to obtain "real redress" that would be of benefit and that redress must deal "meaningfully and effectively with the substance of the employee's grievance": O'Hagan et al v. Attorney General of Canada and Boutelier et al v. Attorney General of Canada (1999) 181 D.L.R. (4th) 590 F.C.A. at 600.
[21] The applicant further argues that the current Agency's staffing policy fails to meet the minimum administrative law standards of natural justice and fairness which the Agency must consider, as do all bodies that hold quasi-judicial and administrative powers affecting the interests of individuals. The principles of fairness require that any affected individuals must know the case to be met against them and be provided a reasonable opportunity to respond. In addition, any board, tribunal or commission operating under administrative guidelines must be independent. Indeed, a heightened level of independence is required where important interests, such as public employment rights, are at stake. It is asserted that no independent body is involved in the Agency's recourse regime as each level of the review process under the current staffing program utilizes management and Agency chosen reviewers.
[22] Although the applicant does not expect the provisions of the CCRAA to mirror those of the PSEA, the legislation itself provides, in subsection 56(2), that the Public Service Commission is empowered to periodically review the compatibility of the principles governing the Agency's staffing program with those governing staffing under the PSEA. Here the features and staffing principles of the PSEA, including the making of appointments on merit, are reprised very much on the factual basis invoked in the Luce affidavit and essentially to the same effect; namely, that the current policy lacks the minimum essential characteristics required to meet the statutory burden of the Agency. These include: an unbiased decision-maker who has the authority to ensure that adequate disclosure is made to the affected parties; the decision-maker must be in a position to ensure that the affected parties are given an opportunity to respond and be heard, he or she must be allowed to consider all relevant information in reaching a decision and, have the authority to make coercive remedial orders. The applicant contends that the current recourse directives neglect to demonstrate any of the above characteristics.
[23] PIPSC contends that the Agency does not have unfettered discretion in the establishment of its staffing recourse policies. Rather, the court is entitled to review implemented policies in order to ensure that they satisfy the standard of reasonableness. This assertion is said to be supported by the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The Agency argues the applicant is not entitled to any greater deference than reasonableness as it holds no particular expertise in designing recourse systems that comply with minimum administrative law principles.
[24] The current process is unreasonable, argues the applicant, because despite the variations of recourse, the outcome of the various reviews is ineffective and essentially the same due to the nature of the representation that may be provided, the relative dependence and bias of the decision-maker hearing the objection, and the level of disclosure or non-disclosure that may be provided at each of the levels.
[25] The respondent Agency did not adduce any affidavit evidence in the context of this motion. Counsel for the respondent principally argued by reference to policy and the Luce affidavit. Having regard to the differences between the Agency's scheme and its predecessor under the PSEA, counsel for the respondent reiterates that, generally, the PSEA allows for appeals of staffing on the basis that the individual who is appointed is not meritorious as ranked with other candidates. The new system focuses on evaluating the individual against set criteria. A benefit of the new system is that it provides for reviews at various stages of an ongoing process, such that the individual can reenter the competitive process at any point. In contrast with the PSEA, corrective measures occur during the staffing process rather than after the fact of a placement.
[26] Reviewing elements of the Agency's recourse policy, counsel for the respondent challenges as erroneous and unfounded a number of Mr. Luce's assertions as to the mechanism of the process, responding directly to many of the deficiencies alluded to in the applicant's evidence. By reference to the provisions of the policy, he points out for example, means by which the rules of natural justice are sought to be protected, argues that there are proper mechanisms for representation, and so on.
[27] The respondent takes the view that the applicant's argument rests tenuously on a baseless equation of "recourse" with "redress". But for this improper leap, the Agency argues, the court must find that there are no grounds for the application, as subsection 54(1) plainly calls for a "recourse policy" which the Agency has enacted in fact and in law.
[28] It is admitted that a recourse program has been developed and implemented. At issue, however, is the sufficiency of the policy in light of the legislative obligation imposed on the Agency. To that end, I have exposed the argument of the applicant in greater detail than may be necessary given that the merits are not at issue in this motion. Indeed the simple question for determination at this juncture is whether the application may be said to be futile and devoid of any possibility of success. In my view the submissions of both counsel clearly attest to the presence of a justiciable issue raised by the applicant which is proper for determination on the merits and precludes summary dismissal.
Mandamus
[29] Regarding the plea for mandamus, the respondent submits that the applicant has failed to demonstrate that the criteria for granting such an order have been met: seeApotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), affirmed (1994) 3 S.C.R. 1100. The Court of Appeal in Apotex determined that relief cannot be granted where an applicant is unable to demonstrate that all of the prerequisite elements for the issuance of mandamus have been satisfied. Without enumerating the preconditions, the following argument of the Agency is responsive to each of the elements.
[30] The Agency emphasizes the following points. It has met its public duty to act through the implementation of the policies presently under scrutiny and the duty is owed to the members of the union, not to the union itself. There has not been a demand and subsequent refusal to comply. There are other adequate remedies available to individual employees who are affected. As to the practical value of an order of mandamus, it is not apparent in the absence of grounds that would lead one to conclude that the present staffing program is contrary to law. Accordingly, the balance of convenience which the court has to determine, favours the continued operation of the current directives. In the result, the Agency argues, the union has failed in respect of nearly all of the elements of the test.
[31] The fundamental deficiency which the Agency raises is that mandamus is not available in this instance due to the permissive nature of the duty created in subsection 54(1). Here, the presence of a discretion to determine the manner in which a duty will be met precludes the issuance of mandamus as there exists no specific duty to act in a particular manner.
[32] The proposition that mandamus will not issue in the absence of a specific duty to act in a particular manner is substantially supported by the jurisprudence: Black v. NsC Diesel Power Inc. (Trustee Of), [2000] F.C.J. No. 725 (T.D.) and Rocky Mountain Ecosystem Coalition v. Canada (National Energy Board), [1999] F.C.J. No. 1223 (Proth.), Distribution Canada Inc. v. The Minister of National Revenue, [1991] 1 F.C. 716 (T.D.).
[33] That mandamus is not available where statutory authority is permissive or discretionary is explained as follows in Distribution Canada where the court noted:
| It is true that mandamus is available in appropriate cases to require enforcement of the law. It appears to me, however, that a distinction has generally been drawn in the jurisprudence between the court requiring a public officer to enforce the law in cases where he has failed completely to do so, on the one hand, and the court telling a public officer how to enforce the law on the other. The former is possible but the latter is not. (p. 725) |
[34] Having considered these arguments, I find that the applicant's failure to meet the preconditions enumerated in Apotex in this instance, is arguable rather than conclusive. For example, it is arguable that there are other means for the applicant to compel the performance of the Agency's duty. The union takes the position that an aggrieved employee may only have the means to challenge an individual staffing decision, on its particular facts, but not to challenge the whole of the scheme and its underlying principles.
[35] I am able to find one standard which PIPSC has clearly not met. It has not demanded or been refused compliance with the statute. While the jurisprudence is clear that the criteria that have to be met are cumulative, in my view, that failure alone cannot be a basis for striking the plea for mandamus.
[36] In addition, that the court may not have jurisdiction to compel the performance of a discretionary duty begs the question. The applicant takes the view that a fatally flawed recourse policy equates to the total absence of one. In the absence of the enactment of a recourse policy which is reflective of the intention of Parliament, the statutory duty has not been met. In my view, the failure, if any, to comply with the duty in these circumstances is a question, which I have stated must be decided on the merits.
[37] Indeed, whatever the union's chances of success in securing relief by way of mandamus, I cannot conclude that it must inexorably fail and accordingly decline to dismiss the plea for mandamus. I am also persuaded, taking the application as a whole, that it is inappropriate to do so having found that the underlying prayer for a declaration raises a justiciable issue for determination on the merits.
Standing:
Public Interest Standing
[38] The respondent argues that as PIPSC is a labour union acting as the bargaining agent for the affected auditors, as such, it lacks the requisite standing to bring this application. Subsection 18.1(1) of the Federal Court Act requires that anyone seeking judicial review must be "directly affected by the matter in respect of which relief is sought". In this case, the rights and remedies available under the current staffing program are conferred on the employees, not the union.
[39] The applicant cannot apply for posted positions nor can it seek recourse in respect of staffing decisions made by the Agency. The employees who are directly affected and dissatisfied with the decisions reached under the recourse directives may pursue remedies under the program and seek recourse in the courts in appropriate circumstances. As the applicant will neither benefit nor suffer any direct impact from the implementation of the staffing program and recourse directives, the requisite standing to attack the decision by way of judicial review is absent: Re Canadian Telecommunications' Union v. Canadian Brotherhood of Transport and General Workers et al., [1982] 1 F.C. 603 (C.A.). The respondent also relies on Canadian Transit Co. v. Public Staff Relations Board, [1989] 3 F.C. 611 (C.A.) for the proposition that standing cannot be established through an indirect or contingent interest.
[40] As for public interest standing, it is trite law that the ability to recognize and grant such standing is entirely within the discretion of the court. That said, the respondent contends that the union in this case does not meet the three element test in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, and cannot be recognized to have a public interest. The applicant is said to fail to demonstrate two of the elements of the test. The union, as such, does not have a genuine interest in the staffing program. Also, the program is not otherwise immune from challenge. Employees who exhaust all avenues of recourse through the program may seek a remedy from the court. Thus, a more effective and reasonable means by which this issue may be brought before the court exists to preclude PIPSC from bringing this application.
[41] PIPSC asserts that it has standing and is directly affected in its ability to represent its members in their relationship with the employer. Pulp Paper and Woodworkers of Canada v. Canada [1991] F.C.J. No. 1108 (T.D.) and Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212.
[42] In the alternative, the applicant contends that it has met the standards described in Canadian Council of Churches and is therefore entitled to a public interest standing and relies on the following cases wherein public interest standing was sought and granted: Finlay v. Canada (Minister of Finance) (1986), 2 S.C.R. 607; Nova Scotia (Attorney General) v. Ultramar Inc. (1985), 3 F.C. 713 (T.D.); Citizens' Mining Council of Newfoundland v. Canada (Ministry of Environment), [1999] F.C.J. No. 273 (T.D.).
[43] In Devinat, the applicant, a lawyer and translator with deadlines to meet was forced to wait for days to obtain translations by reason of the Immigration and Refugee Board's "on request" translation policy. He first filed a complaint with the Commissioner of Official Languages and thereafter filed for judicial review.
[44] The Court of Appeal found that Mr. Devinat was a person "directly affected" since he was himself the subject of the Board's refusal to provide timely translation of its decisions. Having regard to the criteria for establishing public interest standing, the Court of Appeal referred first to the Supreme Court standards as set out in Canadian Council of Churches:
| [50] Finally, the court reviewed the requirements which must be met by anyone claiming public interest standing: |
| It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court? [my emphasis] |
and while the Court of Appeal found Mr. Devinat to be directly affected such that it did not have to rule on whether he could have public interest standing, it commented as follows in that regard:
| [51] The issue raised in the case at bar is a serious one. It is whether Parliament intended that the Board's decisions should be available in both official languages and so readily accessible by anyone who has to use those documents. The alleged breach involves a quasi-constitutional duty. The public has an interest in knowing and if necessary determining the scope of the duties which the federal Parliament imposes upon federal tribunals in the quality of the services which must be provided to users. The appellant has a genuine interest in knowing whether he has the same type of access to this knowledge as members of the public speaking the other official language. There is no other reasonable and effective way to bring the issue before the court. The administrative procedure provided by the OLA, as set out above, does not replace intervention by the courts. (at page 231) |
[45] The circumstance under which Mr. Devinat was found to be directly affected as well as the court's determination that there was not another reasonable and effective manner in which the matter could be brought before the court certainly leaves some scope for the applicant's argument. Here again, I will not, at this juncture, preempt the exercise of the discretion of the judge hearing the matter to determine the union's standing to bring this application.
Time-barred
[46] Subsection 18.1(2) of the Federal Court Act requires an application to be filed within thirty (30) days following communication of the "decision or order" sought to be reviewed. In the present case, the Agency implemented the new Staffing Program on November 1, 1999, the notice of application was not issued until March 27, 2000.
[47] Generally, a plea of limitation is not a basis for striking an application. It is appropriately raised in defence and argued at the hearing of the application. That said, this court has struck out applications commenced in excess of the limitation period where there were no arguable issues concerning the timing of the decision or its communication to the applicant: Drolet v. Superintendent des faillites et al. (1996), 118 F.T.R. 147 (T.D.); Dutt v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1518 (T.D. Prothonotary).
[48] Indeed, these two cases essentially give effect to the proposition in David Bull that allows the striking of a notice of application where the deficiency cannot be contested or overcome, and the application is rendered futile as a result. Moreover, in Drolet where an application was found to be "doomed to fail" because it had been clearly commenced outside the statutory time limits and no extension of time had been requested, the court's disposition to dismiss was made reputable on certain conditions, which if met would preclude the dismissal of the application.
[49] The union, in its argument, principally relies on two recent judgments of the Federal Court of Appeal which nuance and extend the scope of circumstances where applications may be found to be timely. In Devinat, where the individual was attacking a policy, the applicant commenced his court proceedings roughly a year after the Immigration and Refugee Board's omission in issuing translations had been brought to his attention. The court nevertheless found the application to be timely on the basis that the Board's "omission is ongoing, it runs on a daily basis" (supra, at paragraph 44).
[50] In Krause v. Canada, [1999] 2 F.C. 476, the appellants alleged that in each fiscal year beginning 1993 to 1994 surpluses in the Public Service and Canadian Forces superannuation accounts were improperly credited by the responsible Minister. In each of these years, surpluses in the accounts had been improperly amortized as a result of the implementation of accounting practices recommended by the Canadian Institute of Chartered Accountants. The "decision" to amortize surpluses had been taken in 1989-90. At first instance, the application was found to be beyond the 30 days from the decision and indeed from subsequent yearly "decisions" annually implementing the practice. In allowing the appeal Sexton J.A. speaking for the Court of Appeal stated at page 492.
| [24] I am satisfied that the exercise of the jurisdiction under section 18 does not depend on the existence of a "decision or order." In Alberta Wilderness Assn. v. Canada (Minister of Fisheries & Oceans), Hugessen J. was of the view that a remedy envisaged by that section "does not require that there be a decision or order actually in existence as a prerequisite to its exercise." In the present case, the existence of the general decision to proceed in accordance with the recommendations of the Canadian Institute of Chartered Accountants does not, in my view, render the subsection 18.1(2) time limit applicable so as to bar the appellants from seeking relief by way of mandamus, prohibition and declaration. Otherwise, a person in the position of the appellants would be barred from the possibility of ever obtaining relief under section 18 solely because the alleged invalid or unlawful act stemmed from a decision to take the alleged unlawful step. That decision did not of itself result in a breach of any statutory duties. If such a breach occurred it is because of the actions taken by the responsible Minister in contravention of the relevant statutory provisions. (Footnote omitted.) |
[51] Clearly, Devinat and Krause give scope to the applicant's argument that the statutory time limits may not apply where, as in this case, the impugned policy continues in place and is applied daily thereby remaining open to ongoing challenge.
[52] It does not assist the respondent to distinguish Krause on the basis that the court found in that case that the applicants would otherwise be left without any remedy. The union makes the arguable point that individual employees may not be able to effectively challenge the whole of the "code" and especially so, in this context. The employee's challenge of the scheme, if available, would have be grounded in an unfavourable staffing decision and would of necessity have to be made beyond 30 days from the date of the implementation of the policy which was simultaneous with the Agency's coming into existence.
[53] I find the motion to dismiss on the grounds of limitation premature in the circumstances of this case and leave it to be raised in defense. Indeed, Devinat and Krause warrant caution in moving summarily to strike an application as untimely in all but the most obvious of cases. A fortiori where the application otherwise raises serious, arguable questions which call for determination on the merits.
Extension of time to serve and file the respondent's affidavit evidence
[54] If I decline to dismiss all or part of the application, the respondent requests in the alternative that the applicant be required to comply with Rule 301(e) by providing a complete and concise statement of the grounds to be argued. In the further alternative, the Agency requests an extension of time to put in its affidavit evidence.
[55] The applicant objects to the extension of time. Counsel for the applicant had apparently agreed to an extension of time for the filing of the Agency's affidavit evidence and instead, without any intimation that the Agency required further detail, was served with the within motion.
[56] As to being compelled to produce further grounds, the applicant refers the respondent to its argument made in the context of this motion. The Agency responds that notice was not required to the applicant as the onus is on the applicant to state its grounds in accordance with the Rules.
[57] I find the respondent's motion much like a motion for particulars which is unavailable for good reason in the context of a judicial review. This is a summary process which requires celerity and is meant to preclude interlocutory skirmishing that will encumber and delay the process.
[58] There is much to be said for brevity and certainly the grounds provided are concise. The application might have included greater detail but I see no reason to order what amounts to particulars of the grounds at this time. The Agency is not thereby prejudiced. It is able to respond to the application and adduce its own evidence. All the more so at this juncture, when, in addition to the application, and the extensive affidavit evidence of Mr. Luce which elaborately sets out the factual basis of the application, it has cognizance of the argument of the applicant made in the context of this motion.
[59] While it would have been preferable and appropriate for the Agency to have sought an extension of time in order to bring this motion, I will nevertheless grant the Agency's request for an extension of time to serve and file its affidavit evidence.
Conclusion
[60] A separate order will be issued dismissing the respondent's motion, granting an extension of time to the respondent to file its affidavit evidence and awarding the costs of this motion to the applicant in any event of the cause.
| R. Aronovitch |
Prothonotary
Ottawa, Ontario
January 29, 2001