Montréal, Quebec, February 17, 2006
PRESENT: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
(formerly known as
CAST TRANSPORT INC.)
Applicant
and
GUNTER M. KUNTZE
and
ENTREPRISE GUNTER M. KUNTZE & FILS INC.
Respondents
Written motion by the respondent, Gunter M. Kuntze, to dismiss the application for judicial review filed by the applicant on August 25, 2005, and written motion by the same respondent to strike out respondent Entreprise Gunter M. Kuntz & Fils Inc. from the style of cause.
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] We will first of all deal with the motion by respondent Kuntze to dismiss the application for judicial review.
[2] On the verge of filing his affidavit or affidavits under section 307 of the Federal Courts Rules (the Rules) in the matter of an application for judicial review instituted by his employer, the applicant, against a preliminary decision by a labour law arbitrator, the respondent realized that the applicant had not filed its affidavit or affidavits under section 306 within the time limit specified by that rule.
[3] At the same time as when this defect was noticed, the respondent filed the present motion under sections 58 to 60, more specifically, on the basis of paragraph 59(c) of the Rules. These rules read as follows:
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58. (1) A party may by motion challenge any step taken by another party for non-compliance with these Rules.
(2) A motion under subsection (1) shall be brought as soon as practicable after the moving party obtains knowledge of the irregularity.
59. Subject to rule 57, where, on a motion brought under rule 58, the Court finds that a party has not complied with these Rules, the Court may, by order, (a) dismiss the motion, where the motion was not brought within a sufficient time after the moving party became aware of the irregularity to avoid prejudice to the respondent in the motion; (b) grant any amendments required to address the irregularity; or (c) set aside the proceeding, in whole or in part.
60. At any time before judgment is given in a proceeding, the Court may draw the attention of a party to any gap in the proof of its case or to any non-compliance with these Rules and permit the party to remedy it on such conditions as the Court considers just |
58. (1) Une partie peut, par requête, contester toute mesure prise par une autre partie en invoquant l'inobservation d'une disposition des présentes règles. (2) La partie doit présenter sa requête aux termes du paragraphe (1) le plus tôt possible après avoir pris connaissance de l'irrégularité.
59. Sous réserve de la règle 57, si la Cour, sur requête présentée en vertu de la règle 58, conclut à l'inobservation des présentes règles par une partie, elle peut, par ordonnance: a) rejeter la requête dans le cas où le requérant ne l'a pas présentée dans un délai suffisant - après avoir pris connaissance de l'irrégularité - pour éviter tout préjudice à l'intimé;
b) autoriser les modifications nécessaires pour corriger l'irrégularité; c) annuler l'instance en tout ou en partie.
60. La Cour peut, à tout moment avant de rendre jugement dans une instance, signaler à une partie les lacunes que comporte sa preuve ou les règles qui n'ont pas été observées, le cas échéant, et lui permettre d'y remédier selon les modalités qu'elle juge équitables. |
[4] Therefore, under section 59 of the Rules, if the Court concludes that a rule has not been complied with, it may pursuant to paragraph (c) set aside the proceeding.
[5] In the present case, the applicant had to file its motion record within a time limit specified by the Rules. It did not do so and had to bring a motion to extend time. Showing obvious leniency toward the applicant, in an Order and Reasons for Order delivered on January 11, 2006, the Court authorized it to file its motion record in response to the motion for dismissal brought by the respondent.
[6] In its motion record, the applicant essentially submits that its application for judicial review raises serious questions of law and that the situation invoked by the respondent in the present motion is merely a matter of form and not a substantive issue.
[7] I do not agree with the applicant on this last point.
[8] Respecting time limits when preparing an application for judicial review is important and cannot be considered a mere a question of form.
[9] The applicant did not comply with the section 306 time limit. To counter the respondent’s motion for dismissal, it had to file a motion record containing sufficient plausible and reasonable explanations to allow the Court to grant an extension of time under paragraph 59(b) of the Rules in its favour and to attribute a certain amount of costs to it for the delay incurred.
[10] However, the motion record filed by the applicant on January 16, 2006 is more than unsatisfactory.
[11] First of all, as far as evidence is concerned, this case is based on hearsay evidence of one of the applicant’s lawyers about the explanations given by the Registry even before the application for judicial review was filed and which allegedly created some confusion in the mind of one of the applicant’s lawyers about the procedure to be followed. Here is what one of the applicant’s lawyers stated in paragraphs 2 to 4 of the affidavit in question:
[translation]
2. Before filing the notice of application for judicial review in this case, that is to say, on or about August 25, 2005, a representative of the undersigned law firm went to the Registry of the Federal Court in Montréal to make sure that the notice of application complied with the Federal Court Rules, 1998;
3. The explanations given to that representative were misunderstood, such that the notice of application and the motion record were mixed up, which explains the alleged defects in form of the application;
4. It is in the interests of justice and the parties that the defects in form be corrected immediately.
[12] I can only agree with counsel for the respondent when he states the following in response in his written submissions about the affidavit reproduced in part above:
[translation]
3. Hubert Larose’s affidavit is based on hearsay and therefore contains statements based on what he believes are the facts, that is, that the explanations given by [sic] another representative of Mr. Larose’s law firm were misunderstood;
4. There are no grounds in support of what the deponent Mr. Larose believes are the facts;
5. In fact, no plausible conclusion or justifiable explanation may be reasonably drawn from the confusion created in the mind of the representative of Mr. Larose’s law firm by the explanations given by the Court Registry about the notice of application and the motion record;
6. The explanations are even more unsatisfactory because the notice of application was filed on August 25, 2005 and served on August 29, 2005, and the motion record – precisely which one are we talking about – to amend the style of cause so as to omit the designation of the arbitrator Michel A. Goulet was served on or about September 20, 2005, while the one to suspend the proceeding before the arbitrator was served on or about October 14, 2005;
[13] Secondly, in paragraph 3 of the written submissions in the applicant’s motion record, a slightly different explanation was given from that contained in the affidavit submitted by the applicant:
[translation]
3. . . . there was no official filing of the affidavits and documentary evidence after the application was filed and served because the undersigned lawyers wrongly believed after seeking advice from the Registry of the Federal Court that simply filing documentary evidence with the notice of application was sufficient and that the affidavits of the applicant’s representatives only had to be filed for the hearing;
[14] This attempt at justification does not hold water, and once again I can only agree with counsel for the respondent when he wrote the following in paragraphs 7 to 11 of his written submissions in reply:
[translation]
7. In all respects, it is difficult to reasonably believe that the applicant’s lawyers wrongly believed it was sufficient to file the exhibits with the notice of application and that the affidavits of the applicant’s representatives only had to be filed for the hearing;
8. First of all, the documentary evidence was never filed with the notice of application, as appears from the Court record;
9. Second, neither the rules concerning applications nor the rules concerning motions provide for the filing of affidavits on the day of the hearing;
10. Accordingly, the affidavit in the motion record is clearly insufficient and, under subsection 81(2) of the Federal Court Rules, 1998, respondent Gunter M. Kuntze asks this Court to draw the appropriate unfavourable conclusions, that is, to reject the affidavit and the motion record;
11. In the opinion of respondent Gunter M. Kuntze, the rules governing the preparation of application records are sufficiently clear, and section 306 of the Federal Court Rules, 1998 admits of no interpretation;
[15] The Court is more than reluctant to dismiss an application for judicial review because the applicant, owing to the omissions of its lawyers, did not file its section 306 affidavits on time. However, the motion record filed by the applicant in the present motion does not leave the Court with any other reasonable choice.
[16] This is definitely an unfortunate situation for the applicant, but in Chin v. Canada (Minister of Employment and Immigration) (1994), 22 Imm.L.R. (2d) 136, the Court wrote the following about this situation, at page 139:
I know that courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purposes are one. It is too easy a justification for non-compliance with the rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced.
[17] Therefore, the motion brought by respondent Kuntze is allowed with costs in the amount of $200 against the applicant, and the applicant’s application for judicial review is accordingly dismissed.
[18] The Court’s conclusion as to the dismissal must, without any further formality and in the spirit of section 3 of the Rules, also apply to respondent Entreprise Gunter M. Kuntze et Fils Inc., because the applicant itself designated this entity as a respondent and essentially submitted in its motion record, in response to respondent Kuntze’s motion seeking the withdrawal of this respondent from the style of cause, that Entreprise Gunther M. Kuntze et Fils Inc. was just as much, if not more so, the proper respondent.
[19] A joint assessment of the parties’ records concerning this second motion by respondent Kuntze leads the Court to conclude that respondent Entreprise Gunter M. Kuntze et Fils Inc. must be considered as the alter ego of respondent Kuntze, and it is therefore fair and reasonable to allow it to benefit from the result of the motion to dismiss by respondent Kuntze and only by respondent Kuntze and which was not contested on this basis. Accordingly, the motion by
respondent Kuntze to strike respondent Entreprise Gunter M. Kuntze et Fils Inc. from the style of cause is nevertheless dismissed with costs in an amount of $50 in favour of the applicant.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-1469-05
CP SHIPS TRUCKING LTD. (FORMERLY KNOWN AS CAST TRANSPORT INC.) v.GUNTER M. KUNTZE and ENTREPRISE GUNTER M. KUNTZE & FILS INC.
MOTIONS IN WRITING CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER BY: PROTHONOTARY MORNEAU
DATED: February 17, 2006
WRITTEN SUBMISSIONS BY:
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Hubert Larose |
FOR THE APPLICANT |
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Benoît Laurin |
FOR THE RESPONDENTS |
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SOLICITORS OF RECORD:
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Kaufman Laramée Montréal, Quebec |
FOR THE APPLICANT |
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Pépin et Roy (CSN Legal Department) Montréal, Quebec |
FOR THE RESPONDENTS |
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