Date: 20011106
Docket: 01-T-57
Neutral citation: 2001 FCT 1208
BETWEEN:
STÉPHANE MARLEAU
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
[1] This is a motion under subsection 18.1(2) of the Federal Court Actfor an extension of time to bring an application for judicial review.
[2] The applicant in this proceeding brought a previous application for judicial review on July 12, 2001, regarding the same decision of the National Parole Board.
[3] I will not go over the various steps taken by the applicant in his first application for judicial review in file no.T-1282-01 in detail, but I would simply mention that after requesting that his case be heard on a priority basis, which request was granted, the applicant chose to discontinue his application and to bring an application for habeas corpus in the Superior Court of Quebec.
[4] After being unsuccessful in the Superior Court, he came back to the Federal Court and applied to have the case reopened.
[5] In my decision of October 4, 2001, in file no. T-1282-01, I stated, at paragraphs 12 et seq:
[TRANSLATION]
[12] It seems clear to me that when the applicant filed his discontinuance on September 4, 2001, he quite simply terminated his application for judicial review, with full knowledge of what he was doing.
[13] I agree with the respondent's argument that the applicant has no choice but to file a fresh application for judicial review of the decision of the Appeal Division of the National Parole Board in accordance with the provisions and rules of the Federal Court.
[14] When a discontinuance is filed with the Court, it cannot be withdrawn without a valid reason being stated, and that was certainly not done here.
[6] In the notice of motion that he filed in this proceeding, the applicant wrote:
[TRANSLATION]
After Mr. Justice Blais refused to reopen the proceedings in file no. T-1282-01 on October 5, 2001, he invited the APPLICANT, in accordance with the suggestion by the RESPONDENT, to file a fresh application for judicial review of the decision sent to the APPLICANT on June 12, 2001, by the Appeal Division of the NPB affirming the decision of the trial division dated January 10, 2001, revoking the statutory release of the APPLICANT.
- It is in the interests of justice that the APPLICANT have an opportunity to be heard on the merits of his application.
[7] It appears somewhat presumptuous to me for the applicant to suggest that in my decision of October 5, 2001, I invited him to file a new application for judicial review.
[8] Although it is not my role to comment on my own decisions, it seems clear that it is the applicant who filed a discontinuance in his case, on September 4, 2001, and that no valid reason had been stated to justify reopening that case.
[9] As a result, the only possible remedy was to bring a fresh application for judicial review. (Emphasis mine)
[10] Although the applicant is always entitled to file fresh applications for judicial review, either within or outside the times allowed by the rules of the Court, previous cases have clearly established that in order to bring an application for judicial review of a decision, if the time for doing so had expired, the applicant had to show that his or her delay was caused by circumstances beyond his or her control.
[11] Again, I believe that counsel for the respondent is entirely correct to suggest that the delay in bringing an application for judicial review is the result of the choices that the applicant made starting on September 4, 2001, rather than of circumstances beyond the applicant's control.
[12] Furthermore, it is the applicant himself who chose to apply to another forum in September 2001 because it was essential, in his opinion, that his application be heard at the earliest possible time since, as he himself said, the application for judicial review would have become moot if the case had gone on past December 2001, given that the National Parole Board was to re-hear his client in December 2001.
[13] In his written submissions in reply to the respondent's record, counsel for the applicant stated, in paragraph 7, that there is no evidence at this stage that the action will be moot when it is heard, apart from the fact, we should point out, that he was the one who first made that argument.
[14] To succeed in a motion for an extension of time in a case like this, in addition to having to state serious reasons for the delay in bringing the application, which do not exist here, the applicant must also show that there is a reasonable chance of success on the merits of the application itself.
[15] On that point, the applicant failed to show the Court that he had a reasonable chance of success if the motion for an extension of time were granted.
[16] I have therefore no choice but to dismiss this motion for an extension of time.
O R D E R
THE COURT ORDERS that this motion under subsection 18.1(2) of the Federal Court Act for an extension of time be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
November 6, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS OF RECORD
COURT FILE NO.: 01-T-57
STYLE OF CAUSE: Stéphane Marleau v. Attorney General of Canada
MOTION IN WRITING WITHOUT PERSONAL APPEARANCE
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATE OF REASONS: November 6, 2001
WRITTEN SUBMISSIONS BY:
Daniel Royer FOR THE APPLICANT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté, et Ass. FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada