Halifax, Nova Scotia, June 12, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
FUND CORPORATION
and
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by Canadian Olympic Committee (the respondent) for an order:
1. Setting aside the order of the Prothonotary dated December 15, 2005 which granted
an extension of three days from the date of the order for See you In-Canadian Athletes Fund Corporation (the applicant) to serve and file the applicant's record and an extension of time for subsequent steps in the proceeding. The order also stated that no costs would be payable on the motion;
2. Refusing the extension request of the applicant to file its application record with costs to the respondent of this motion and the motion below in any event of the cause, fixed at $1,000;
3. In the alternative, an order setting aside the order of the Prothonotary, in part, insofar as she failed to award costs to the respondent, in any event of the cause, fixed at $500; and
4. Costs of this motion, payable to the respondent and in any event of the cause, fixed at $500.
[2] This matter was commenced by notice of application on November 12, 2004. Extensions of time for filing pleadings and documents have been granted in the matter.
[3] A notice of status review was issued on June 6, 2005 and the applicant filed written submissions in respect of the notice of status review. In these submissions, the applicant's solicitor, Terrence J. McManus, outlined the history of the file which indicated that there had been various scheduling problems and that cross-examinations were completed on April 27, 2005. During the first week of May, the applicant's solicitor was advised by his doctor to work a substantially reduced schedule because of a blockage in his coronary arteries. He was scheduled to undergo an angioplasty on July 7, 2005. By June 19, 2005, the applicant's record was substantially complete at which time the applicant's solicitor suffered a mild heart attack, was hospitalized and took a two week leave from work in order to recuperate. The applicant requested consent for the late filing of its application record on July 4, 2005.
[4] In his affidavit for the motion before Prothonotary Aronovitch, the applicant's counsel attached his status review submissions as an exhibit to the affidavit.
[5] As the decision of the Prothonotary with respect to granting an extension of time to file an application record dealt with a question vital to the final issue of the case, I must exercise my discretion de novo (see Canadav. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) and Merck & Co., Inc. v. Apotex Inc., 2003 FCA 488, [2004] 2 F.C.R. 459 (C.A.)).
[6] In Canada(Attorney General) v. Hennelly, [1999] F.C.J. No. 846 at paragraph 3, the Federal Court of Appeal set out the proper test for determining whether an extension of time should be granted:
The proper test is whether the applicant has demonstrated
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.
[7] I have reviewed the material filed on this motion and I am satisfied that the applicant had a continuing intention to pursue its application. I am also satisfied that the application has some merit.
[8] The record does not show that the granting of the extension would cause prejudice to the respondent, as other extensions of time have been granted in this file.
[9] In my view, there is a reasonable explanation for the delay. The applicant's counsel was diagnosed with a blockage of his coronary arteries and was to undergo an angioplasty on July 7, 2005. The applicant's counsel also suffered a mild heart attack on June 19, 2005 and had to take two weeks leave from work in order to recover.
[10] As a result, I am of the opinion that the extension of time to file the applicant's application should be granted. The respondent's appeal on this issue is dismissed. The Prothonotary was correct in her decision on this issue.
[11] Since the applicant's application record has already been served on the respondent, the respondent should file its record within 20 days of the date of this order.
[12] The respondent also appealed the Prothonotary's decision as to costs of the application. The Prothonotary ordered that no costs should be payable to the respondent. The Prothonotary stated:
As to costs, while Rule 410(2) of the Federal Courts Rules are to the effect that they are generally born by the party bringing the motion to extend time it is subject always to the discretion of the Court.
In this instance, I decline to award costs against the applicant as the respondent neither has nor will suffer any prejudice as a result of the extension of time. Indeed the respondent has protracted and contributed to any resulting delay in making it necessary for the applicant to bring the motion.
[13] Rule 410(2) of the Federal Courts Rules SOR/98-106 states:
| 410(2) Unless the Court orders otherwise, the costs of a motion for an extension of time shall be borne by the party bringing the motion. |
410(2) Sauf ordonnance contraire de la Cour, les dépens afférents à une requête visant la prolongation d'un délai sont à la charge du requérant. |
[14] One of the Prothonotary's reasons for refusing costs to the respondent was that the respondent made it necessary for the applicant to bring the motion for an extension of time. The Prothonotary's decision with respect to costs is not a decision vital to the final issue of the case, hence, the decision should not be disturbed unless the decision was clearly wrong in the sense that the exercise of discretion was based upon a wrong principle or a misapprehension of the facts. I am not persuaded that the Prothonotary made either error in this case.
[15] The appeal of the respondent is dismissed with costs to the applicant.
ORDER
[16] IT IS ORDERED thatthe appeal of the respondent is dismissed with costs to the applicant. The respondent shall file its record within 20 days of the date of this order.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2016-04
STYLE OF CAUSE: SEE YOU IN-CANADIAN ATHLETES
FUND CORPORATION
- and -
CANADIAN OLYMPIC COMMITTEE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 13, 2006
APPEARANCES:
| J. Guy Potvin
|
|
| Kenneth D. McKay
|
SOLICITORS OF RECORD:
| Milton, Geller LLP Ottawa, Ontario |
|
| Sim, Lowman, Ashton & McKay LLP Toronto, Ontario
|