Date: 20040213
Docket: T-1262-03
Citation: 2004 FC 230
BETWEEN:
JEAN CLAUDE PASCAL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the respondent to strike the application for judicial review (the application) filed in this case by the applicant on July 16, 2003, for the reason that both this Court and the Federal Court of Appeal have already determined that the applicant's application should be dismissed for delay.
[2] For the reasons which follow, I consider it plain and obvious that the respondent is right and that the applicant's application should be dismissed with costs.
[3] It should be noted that the applicant filed an application for judicial review on May 14, 2001, pursuant to section 28 of the Federal Court Act, R.S.C. 1985, c. F-7 (file A-296-01).
[4] On July 30, 2001, the Federal Court of Appeal ordered that
[TRANSLATION] [t]he application for judicial review be transferred to the Federal Court of Canada, Trial Division, under section 49 of the Federal Court Rules, 1998.
[5] Following this order, the Registry of the Court opened a court file in the Trial Division (T-1507-01) and transferred all the documents in the appeal file (A-296-01) to file T-1507-01.
[6] On June 19, 2002, following the notice of status review, the Court ordered that the applicant's application for judicial review in file T-1507-01 be dismissed for delay in accordance with paragraph 382(2)(a) of the Federal Court Rules, 1998 (the Rules). It should be noted that the applicant's application in file T-1507-01 is, for all intents and purposes, identical to his application in this file, T-1262-03.
[7] On July 2, 2002, the applicant filed a motion for leave to appeal the order of June 19, 2002, in file T-1507-01.
[8] On August 27, 2002, Mr. Justice Pinard dismissed the applicant's motion for leave to appeal the order of June 19, 2002.
[9] On September 26, 2002, the applicant appealed the order of August 27, 2002.
[10] On June 20, 2003, the Federal Court of Appeal dismissed the applicant's appeal in file A-535-02.
[11] The reasons of the Federal Court of Appeal are the following:
[1] The appellant, by his appeal, challenges a decision dated August 27, 2002, of Mr. Justice Pinard of the Trial Division, who dismissed his motion on appeal of the decision of Prothonotary Richard Morneau, who dismissed his application for judicial review.
[2] For the reasons stated by Pinard J. in support of his order of August 27, 2002, I am of the opinion that he committed no error in dismissing the appellant's motion on appeal and in dismissing his application for judicial review because of delay.
[3] I am therefore of the opinion that the appeal should be dismissed with costs.
[12] Following the Federal Court of Appeal judgment of June 20, 2003, the applicant insisted on filing his application in the present file, T-1262-03. This application, as will be recalled, is virtually identical to that which was the subject of the Federal Court of Appeal judgment of June 20, 2003.
[13] On July 14, 2003, further to an internal request for directions, the Court's attention in this file was drawn to the sequence of events set out above.
[14] For this reason, I gave the following directions on July 15, 2003:
[TRANSLATION] Considering Mr. Pascal's insistence that his application for judicial review of July 11, 2003, be filed, please file it subject to the right of the Attorney General of Canada to have the pleading struck.
[15] This brings us to the respondent's motion now before us.
[16] It should be noted that, in the meantime, by an order dated September 2, 2003, dismissing the applicant's request under section 18 of the Rules, the applicant was reminded of the sequence of events set out above. The applicant appealed the order of September 2, 2003; the appeal has, for the moment, been adjourned sine die by an order of Pinard J. dated October 6, 2003.
[17] As the Court tried to explain to the applicant, who is representing himself, it can find no legal principle, in case law or in the rules of this Court, that would allow a person to revive, in a new file (here, T-1262-03), an application that was dismissed for delay in another file (here, T-1507-01, which led to the Federal Court of Appeal's judgment of June 20, 2003, in file A-535-02). The fact the applicant's application was dismissed without the Court deciding on its merits does not change the end result: the Court dismissed the application, and the applicant cannot get another chance by filing the application in a different file. The applicant had an opportunity to pursue his application diligently in file T-1507-01 but did not seize the opportunity at that time.
[18] During the hearing of the motion now before us, the applicant sought to file his sworn affidavit in an attempt to establish that, in file A-535-02, the Federal Court of Appeal verbally acknowledged, in the applicant's favour, that a mistake had been made such that his application could be allowed to proceed. I did not allow this affidavit to be filed because it was out of time and, more importantly, I consider that the reasons for judgment and the judgment of the Federal Court of Appeal dated June 20, 2003, are exhaustive.
[19] An order will therefore be issued striking the applicant's application, with costs.
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"Richard Morneau" |
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Prothonotary |
Montréal, Quebec
Feburary 13, 2004
Certified true translation
Diane C. Skiejka, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-1262-03
JEAN CLAUDE PASCAL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 2, 2004
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: FEBRUARY 13, 2004
APPEARANCES:
| JEAN CLAUDE PASCAL |
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FOR THE APPLICANT |
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| ADRIAN BIENIASIEWICZ |
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FOR THE RESPONDENT |
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SOLICITORS OF RECORD:
| MORRIS ROSENBERG DEPUTY ATTORNEY GENERAL OF CANADA |
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FOR THE RESPONDENT
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