Date: 20060802
Docket: T-709-05
Citation: 2006 FC 942
OTTAWA, ONTARIO, THIS 2ND DAY OF AUGUST, 2006
PRESENT: THE HONOURABLE JUSTICE HUGESSEN
SONYA KURGAN LAROCHELLE
Applicant
CANADIAN ARMED FORCES
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
This Rule 369 motion by the applicant is, in form, a motion to reconsider an order by the case management prothonotary dated May 15, 2006 dismissing a motion to reconsider that same officer's earlier order dismissing the applicant's motion for an extension of the time within which to serve and file her application record. In fact, the applicant raises no proper grounds on which this Court could "reconsider" the prothonotary's order even assuming that, as presently constituted, it had the jurisdiction to do so. It is a fair construction of the applicant's intentions, however, that what she wants to do is to appeal the order of May 15, 2006 and it will be dealt with on that basis.
The order of May 15, 2006 was served on the Applicant the next day, May 16, a Tuesday. The time for filing and serving an appeal thereof accordingly expired ten days later on May 26, 2006, a Friday. The court record shows that the present motion to reconsider was served by registered mail sent May 26 and received May 29, 2006. In accordance with Rule 141(2) the effective date of service is May 29. Since the motion appeared to be out of time it was submitted to the case management judge and on June 20 the following direction was issued:
“The Court record shows that the Order of May 15, 2006, was sent to the applicant by fax the following day, May 16. Accordingly, the applicant's motion appears not to have been served within 10 days of the Order attempted to be appealed from and cannot be accepted for filing. The applicant may, by a Rule 369 motion, served on the respondent and filed no later than July 4, 2006, and properly supported by affidavit evidence, seek to correct the Court record so as to show that her motion was in fact both served and filed within the time prescribed by the Rules."
The applicant has now re-submitted her motion and has supported it with her own affidavit the only relevant paragraph of which for present purposes is the bald assertion that the motion was served and filed within the time prescribed by the Rules. That paragraph, wholly devoid of any substantiating detail, does not amount to proper proof of the service of the applicant's motion nor is it sufficient to show that the court record is incorrect in indicating that the present Motion was not served prior to close of business on May 26, 2006. In fact it appears that the motion was not served on and received by the respondent until May 29, 2006. No extension of time had been sought or obtained.
The motion is out of time and must be dismissed for that reason
Even if it were timely, however, the motion would necessarily suffer the same fate. In the impugned decision the prothonotary refused to reconsider her own earlier decision not to extend time for the applicant to serve and file her application record. In coming to that result she carefully considered the new facts put forward by the applicant and concluded that even if those facts had been before her at the time of her earlier decision they would not have changed the result. That decision reveals no vitiating error of law or wrong exercise of discretion of a nature to warrant appellate interference. For that reason too, the motion must be dismissed.
There will be no order as to costs.
ORDER:
The motion is dismissed.
___________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: SONYA KURGAN LAROCHELLE v. CANADIAN ARMED FORCES and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF COUNSEL
APPEARANCES:
SONYA KURGAN LAROCHELLE FOR HERSELF
ELIZABETH KIKUCHI FOR RESPONDENT(S)
SOLICITORS OF RECORD:
JOHN H. SIMS
DEPUTY ATTORNEY GENERAL OF CANADA FOR RESPONDENT(S)