Docket No.: 00-T-48
Neutral Citation: 2001 FCT 411
Ottawa, Ontario, this 9th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
RICHARD ATANASOFF
Applicant
- and -
THE COMMISSION OF CORRECTIONS and
THE WARDED OF WARKWORTH PENITENTIARY
Respondents
REASONS FOR ORDER AND ORDER
1. The applicant has filed a motion pursuant to Rule 369 of the Federal Court Rules, 1998, SOR/98-106, for an extension of time to file his application for judicial review. The impugned decision to transfer the applicant from a medium to a maximum security institution, was made on September 25, 2000. Pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, the latest date for the applicant to have filed an application for judicial review was October 25, 2000.
2. However, the applicant did not receive a Legal Aid certificate until October 24, 2000, with only one day remaining to file the application. The applicant filed a notice of motion, including a request for an extension of time, erroneously under the former Federal Court Rules (Rule 1602) on November 16, 2000. Given that the Federal Court Rules were changed in 1998, the applicant filed a new motion under the new Rules on December 27, 2000.
3. The respondents argue that the delay from November 16 to December 27 is not adequately explained and shows a lack of continuity of intention. This lack of intention, combined with the respondents' argument that the applicant does not have a reasonable chance of success in the application at bar, should result in the dismissal of the applicant's motion for an extension of time.
4. After having received the Legal Aid certificate, the applicant mistakenly applied the old Federal Court Rules and attempted to serve and file the necessary materials on November 16, 2000. It must be noted that the respondents do not ask that any adverse weight be given to counsel's error in following the old Rules. The applicant was therefore required to prepare, serve, and file new documents, all of which was completed on December 27, 2000.
5. It is helpful to review Grewal v. Canada[1], one of the leading cases on the criteria to be used in exercising the discretion to grant an extension of time under subsection18.1(2) of the Federal Court Rules, 1998. In that case, the applicant sought an extension of time for the filing of an application for judicial review almost twelve months after the decision of the Immigration Appeal Board. Chief Justice Thurlow at page 272 stated as follows:
The underlying consideration ... which, it seems to be, must be borne in mind in dealing with any application of this kind, is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension.
He added at pages 278-279 that:
... in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not... fettered.
6. Justice Marceau, in the same case, stated that an extension ought to be granted where the "ultimate search for justice" prevails "over the necessity of setting the parties' rights to rest". He considered the following relevant factors to be considered when addressing the issue of such extensions:
The imposition of time limits to dispute the validity of a legal decision is of course meant to give effect to a basic idea of our legal thinking that, in the interest of society as a whole, litigation must come to an end (interest reipublicae ut sit finis litium), and the general principles adopted by the courts in dealing with applications to extend those limits were developed with that in mind. Only if the ultimate search for justice, in the circumstances of a case, appears to prevail over the necessity of setting the parties' rights to rest will leave to appeal out of time be granted. Hence, the requirement to consider various factors, such as the nature of the right involved in the proceedings, the remedy sought, the effect of the judgment rendered, the state of execution of that judgment, the prejudice to the other litigants in the dispute, the time lapsed since the rendering of the judgment, the reaction of the applicant to it, his reason for having failed to exercise his right of appeal sooner, the seriousness of his contentions against the validity of the judgment. It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay.
7. It is my view, in the case at bar, that the applicant has an arguable case. The applicant denies the misconduct that was used to justify the transfer, and argues that the transfer itself was not done in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) and the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations). The applicant argues, in particular, that under subsection 12(c) of the Regulations, the "institutional head" (the Warden) "shall forward the inmate's representations to the Commissioner" or his delegate. According to the applicant, the Warden in the case at bar, rather than the Commissioner or his delegate, unilaterally made the decision to transfer the applicant from the medium security institution, contrary to the scheme of the Act and Regulations. In my view, the applicant has established an "arguable case".
8. In assessing whether the extension should be granted in this instance, I am mindful of the statement of Mr. Justice Marceau in the Gruwal decision, that "a strong case may counterbalance a less satisfactory justification for the delay." Although the applicant has not advanced a compelling explanation for the delay, particularly the delay from November 16 to December 27, I am nevertheless satisfied that the applicant has established an "arguable case", and has demonstrated his continuing intention to pursue this matter.
9. For the above reasons this motion will be allowed.
ORDER
IT IS ORDERED that:
1. The motion is granted.
2. The applicant shall serve and file his application for judicial review within 10 days of the date of this order.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: 00-T-48
STYLE OF CAUSE: RICHARD ATANASOFF v. THE COMMISSION OF CORRECTIONS AND THE WARDEN OF WARKWORTH PENITENTIARY.
NOTICE OF MOTION DISPOSED OF IN WRITING
REASONS FOR ORDER AND ORDER OF:
THE HONOURABLE JUSTICE BLANCHARD
DATED: MAY 9, 2001
WRITTEN SUBMISSIONS:
Mr. Fergus J. (Chip) O'ConnorFOR APPLICANT
Mr. John B. EdmondFOR RESPONDENTS
SOLICITORS OF RECORD:
Fergus J. (Chip) O'Connor FOR APPLICANT
Kingston, Ontario
John B. EdmondFOR RESPONDENTS
Ottawa, Ontario