Ottawa, Ontario, October 27, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
OF KEEWATIN, ONTARIO
and
GRACE CHARTRAND, ESTER BUNN,
CHERYL BIRD, JOAN LEDOUX,
STARLA LEDOUX, ROSALIE PETWANIKEB
and FABIAN VAUGH
REASONS FOR ORDER AND ORDER
[1] This is a motion brought by Washagamis First Nation (Washagamis) seeking an order under Rule 8(1) of the Federal Courts Rules extending the time for bringing an application for judicial review from a Canada Labour Code, R.S.C. 1985, c. L-2 adjudication decision.
Background
[2] On June 6, 2003, Washagamis terminated the employment of the nine Respondents in this proceeding. In the result, the Respondents filed complaints under the Canada Labour Code alleging unjust dismissal.
[3] In accordance with its practice, HRDC appointed an Inspector to investigate the Respondents’ complaints and to attempt to facilitate settlement of their claims. The Record indicates that the HRDC Inspector and legal counsel for the Respondents had considerable difficulty in obtaining a meaningful dialogue with legal counsel retained by Washagamis, namely Douglas Keshen.
[4] In May 2004, Mr. Keshen advised that he was in discussion with the Chief and Council and Third Party Manager of Washagamis with a view to obtaining settlement authority. Nothing further came of Mr. Keshen’s representation and the Respondents requested that their complaints be adjudicated.
[5] In August, 2004, Jack M. Chapman, Q.C. was appointed as Adjudicator and a conference call was scheduled for September 7, 2004 to discuss preliminary issues. That call was postponed because Washagamis had retained new legal counsel, namely Orvel Currie from Winnipeg. By agreement of the parties, the conference call was then rescheduled for September 20, 2004 and the hearing dates for the adjudication were fixed for November 8 to 10, 2004.
[6] In early October, 2004, Mr. Currie requested an adjournment of the hearing dates to allow him to obtain more information from his client. Legal counsel for the Respondents, Johanna Dusolt, initially declined that request but later acquiesced when she was advised about the possibility that the claims were covered by insurance. Mr. Chapman confirmed the adjournment without day in an email sent to counsel for both parties on November 4, 2004. That email also advised that, as discussed with counsel, he would hold open dates for the adjudication in February and March, 2005.
[7] In early November, 2004, Ms. Dusolt wrote to Mr. Currie seeking confirmation of his availability to proceed with the adjudication on the dates proposed by Mr. Chapman. Mr. Currie failed to respond to that inquiry and Ms. Dusolt wrote to him again on December 7, 2004. When Ms. Dusolt heard nothing from Mr. Currie, she wrote to Mr. Chapman to fix dates for the adjudication.
[8] Mr. Chapman wrote to both counsel on January 31, 2005 expressing his concern about the scheduling delays created by Mr. Currie’s apparent inability to obtain instructions. His letter stated, in part:
I cannot wait much longer to set dates for the hearing of the above matters. I appreciate that the Insurer has not yet issued any instructions to Counsel. However this matter has gone on long enough. Accordingly I am only prepared to wait until Friday, February 11th. On Monday February 14th, I intend to communicate with any of the parties on record to date, and will then set dates for the hearings. Thank you for your co-operation.
Once again, Mr. Currie failed to respond prompting Mr. Chapman to write again to counsel on February 14, 2005. That letter stated:
On January 31st, I advised that I planned to set the hearing dates on February 14th. I did not hear from anyone and earlier today I called all of the parties, including the First Nation. I also left a message for Mr. Currie.
This matter has been outstanding since August of 2004 and, as previously advised, I am now setting the date. The Hearing will take place on March 2nd, 2005 commencing at 9 a.m. It is anticipated that the Hearin[g] will take place at 975 Alloy Drive in Thunder Bay. If there is any change you will be advised.
[9] One day before the commencement of the adjudication, Mr. Currie wrote to Ms. Dusolt to advise that he was no longer acting for Washagamis and that all further communication should be directed to the Chief and Council. Mr. Currie’s letter offered no explanation for his last-minute withdrawal but, in an affidavit deposed by Marie Morrison on behalf of Washagamis, the following additional details are provided:
2. Over the course of the two years of working with the First Nation, in addition to my other responsibilities, I was instructed to oversee and make recommendations to Chief and Council of the First Nation regarding the Adjudication Process of the respondents.
3. One of my duties was to communicate with legal counsel acting on behalf of the First Nation. I spoke directly on several occasions, with Orvel Currie, the first lawyer retained by the First Nation to act on behalf of the First Nation at the hearing, and then with Dean Kropp, a lawyer subsequently retained by the First Nation to act on behalf of the First Nation.
4. Mr. Currie was the first lawyer retained by the First Nation to represent their interests against the respondents in the Labour Canada adjudication that was eventually adjudicated by Mr. Jack Chapman in Kenora, Ontario on March 2, 2005.
5. I called Mr. Currie on or about a week before the hearing to confirm his attendance at the hearing. Mr. Currie informed me at that time, that he may not be able to personally attend but that he would have another lawyer from his firm present to act on behalf of the First Nation at the hearing. I called Mr. Currie’s office a few days before the adjudication to confirm Mr. Currie or another lawyer from his firm would be at the hearing. Mr. Currie was not available so I left messages asking him to return my call and confirm who was attending the hearing from his office. On or about March 1, 2005, the day prior to the scheduled hearing date, Mr. Currie contacted me by phone and advised me that he would not be able to make it to the hearing, nor would another lawyer from his firm be available to act on behalf of the First Nation at the hearing. Mr. Currie further confirmed that he would not be present at the hearing in the email attached hereto as Exhibit “A”. To the best of my knowledge, at no time did Mr. Currie provide a reason as to why he or another lawyer from his firm could not attend the hearing.
[10] Mr. Currie’s email to Ms. Morrison offered the following “explanation” for his conduct:
Simply attend advise of your position and we can only appeal accordingly.
Insurance company had the matter. There was a change in Band management. Counsel was not and could not be retained until we knew what insurance company was doing.
[11] Ms. Morrison deposes that, on March 1, 2005, she contacted Mr. Chapman to request an adjournment which was refused. She then appeared before Mr. Chapman when the adjudication was convened on March 2, 2005 and again unsuccessfully sought an adjournment. Although Mr. Chapman encouraged Ms. Morrison to remain at the hearing to participate on behalf of Washagamis, she declined to do so and departed.
[12] Shortly after the adjudication hearing was concluded, Washagamis retained new counsel, namely Dean Kropp of Winnipeg. Mr. Kropp wrote to Mr. Chapman on March 10, 2005 requesting that the hearing be reopened to allow Washagamis to call evidence. Mr. Chapman declined that request in a letter dated March 14, 2005.
[13] A second request to reopen was then made by Mr. Kropp but it, too, was refused by Mr. Chapman on April 5, 2005.
[14] On July 5, 2005, Mr. Chapman made his award in favour of all nine Respondents. He found that they had all been wrongfully dismissed and he assessed their respective damages on the basis of one month of salary for each year of employment. The global award of damages and costs in favour of the Respondents came to almost $210,000.00.
[15] Mr. Chapman’s decision contains the following rationale for his rulings on Washagamis’ motions to adjourn and to reopen the hearing:
After my appointment as Adjudicator, I contacted the parties on several occasions. It is important that the facts relating to the hearing dates be recorded. Initially Mr. D. Keshen, Barrister, of Kenora, Ontario represented the Complainants. Within days of my appointment as Adjudicator I was advised that Mr. O. Currie, Barrister, of Winnipeg, would now be acting for the Employer. I accordingly attempted to schedule a conference call with counsel but had great difficulty in having Mr. Currie, or his office, confirm that he would be available for any specific date. Nevertheless a conference call was initially scheduled for September 7th, 2004 but was rescheduled for September 20th, 2004. At that time the hearings were scheduled, by agreement, for November 8th, 9th and 10th, 2004 in Kenora. On October 5th, 2004 counsel for the Employer advised that the Employer was going to allege that it had Just Cause for the terminations and requested an adjournment so that it could investigate and obtain the necessary information and documentation. The Employer was unable to estimate how long it might require to obtain that information and to prepare the case. Counsel for the Complainants was asked but refused to consent to the adjournment and it was denied. The Employer then issued subpoenas to witnesses.
Counsel for the Employer then ascertained that the Employer had insurance coverage but was unable to confirm that the insurer, who by then had assumed conduct of the matter on behalf of the Employer, would retain him. Counsel for the Complainants advised that she confirmed that an insurer was involved and accordingly consented to an adjournment on condition that the matter proceed to hearing no later than February of 2005.
From November, 2004 until approximately the latter part of January, 2005 the Adjudicator made numerous attempts to ascertain from Mr. Currie, or his office, if he was acting on behalf of the insurer. That confirmation and, in fact, any other information was not received. On January 30th, 2005 the Adjudicator wrote to the parties and advised that if he did not receive any information prior to February 11th, a conference call would be held on Monday, February 14th, 2005 at which time hearing dates would be set. No response was received either from counsel for the Employer or from any of his associates and they apparently chose not to be available for the conference call which took place on February 14th. In fact, the Employer was also advised of the conference call but no one from the First Nation made themselves available for that call. Counsel for the Complainants took part in the call and the hearing date was set to take place on March 2nd, 2005 in Thunder Bay, Ontario. However as most of the Complainants lived in close proximity to Kenora, Ontario, the hearing was re-scheduled to take place there. Notice was sent to all parties advising of the date, time and place of the hearings.
On February 24th, 2005 the associate counsel for the Employer advised that they had been retained by the insurer and requested an adjournment due to other commitments and to obtain further information. As well, there were numerous telephone conferences between the Adjudicator and that associate. An adjournment of some two months was requested. Counsel for the Complainants strenuously objected to any further adjournment. The adjournment was denied. On March 1st, 2005 Mr. Currie wrote to counsel for the Complainants and advised that he was no longer acting for the Employer. A copy of that letter was received by the Adjudicator on March 2, 2005 at the hearing.
Approximately two days before the hearing Ms. Morrison, on behalf of the Employer contacted the Adjudicator and requested an adjournment of an unspecified length and could not give any idea as to who the First Nation would retain to act as counsel for the Employer, when such person might be appointed or when they might be available. Her request for such an adjournment was denied. However the Adjudicator strongly recommended that she or someone on behalf of the Employer appear at the hearing.
When the hearing convened all of the Complainants were present along with their counsel, Ms. Dusolt who had travelled to the hearing from Thunder Bay. Ms. Morrison and a member of the Band Council were present. She advised that she would only make a statement and would then leave. She was urged to remain and the Adjudicator made a lengthy statement as to what had transpired. It was repeatedly explained to her that the proceedings did not have the same formality as in a Court of law. However, she was adamant, made her statement basically alleging that the lack of counsel was not the fault of the Employer, and then left. She was again specifically told that if the evidence of the Complainants were unchallenged, it would most probably be accepted. She again stated that she would not take part in the proceedings and left. The hearing then proceeded.
Subsequent to the hearing, another firm in Winnipeg was retained to act on behalf of the Employer and on March 10th, 2005 that firm requested that the hearings be re-opened. The request was denied.
It had been pointed out to each counsel for the Employer, and to Ms. Morrison that close to two years had elapsed since the terminations and that many of the Complainants were without funds, employment or resources. There did not appear to be any sympathy for the circumstances of the Complainants either on the part of Counsel or the Employer. Of course no determination of any kind had been made at that time as to whether any of the Complainants would be successful.
It should be noted that all of the Complainants attended at the hearing and it may well have been difficult for many of them to be required to attend at a later date, especially when that date was unknown.
[16] According to Ms. Morrison’s affidavit, the Chief and Council for Washagamis instructed Mr. Kropp to “appeal” Mr. Chapman’s award. Those instructions were provided on or about July 15, 2005.
[17] By letter dated July 21, 2005 counsel for Washagamis advised Ms. Dusolt that an appeal from Mr. Chapman’s award was a possibility and that he was seeking “instructions” from the Band. Some efforts to achieve settlements of the claims were then pursued by the parties but those proved to be unsuccessful.
[18] It was not until January 2006, that Mr. Kropp prepared a draft Notice of Application for Judicial Review. He then advised Washagamis that, because the application was out-of-time, a motion to extend time would be required.
[19] It took until March 2, 2006 for Mr. Kropp to file the Notice of Motion seeking an extension of time to bring an application for judicial review. When that motion was argued before me at Winnipeg on September 11, 2006, Mr. Kropp had been replaced by Mr. Greg Rickford and it bears repeating that Mr. Rickford has not been responsible for the delays in moving this matter forward.
[20] It is also noteworthy that even as late as March 1, 2006 Washagamis had not yet identified or compiled all of the documents upon which it intended to base its defence case. In an affidavit by Alfred Thiessen sworn on March 1, 2006 on behalf of Washagamis, he states:
I am advised by the Applicant, and do verily believe, that it is in the possession of further materials which contradicts the length of service being claim by the majority of the Respondents which we would intend to lead at a further hearing should one be granted. The Applicant has and continues to collect materials which are contained in numerous boxes packed in a storage basement.
Issue
1. Is this an appropriate case under Rule 8 to extend time to allow Washagamis to commence an application for judicial review from the decision of Adjudicator Chapman?
Analysis
[21] It is now almost 3 ½ years since Washagamis terminated the employment contracts of the nine Respondents and almost 1 ½ years since the Respondents obtained their respective Canada Labour Code awards. Washagamis does not now contend that it had just cause for these terminations; however, it wants an opportunity to re-adjudicate the issue of quantum by contesting the length of service of some of the Respondents. Washagamis says that Adjudicator Chapman wrongly deprived it of the right to be heard by refusing its adjournment request and by later denying it the right to reopen the case to allow additional evidence to be called.
[22] By the time Washagamis brought this motion to extend time it was already over six months late. Its reason for the delay is essentially to attribute responsibility to its legal counsel, Mr. Kropp, but, in the affidavit of Ms. Morrison, it is deposed that Washagamis is “unaware as to why Mr. Kropp had not complied with the limitation period requirement”. The affidavit sworn by Mr. Kropp’s articling student, Mr. Thiessen, acknowledges that Washagamis received Adjudicator Chapman’s decision on July 15, 2005 and, at least by July 25, 2005, Mr. Kropp had been given instructions to “appeal”. Nothing seems to have been done to further that intention beyond occasional references to an appeal in settlement correspondence exchanged over the next four months.
[23] The considerations that are typically applied to the exercise of the discretion to extend time under Rule 8 have been frequently discussed. In 687764 Alberta Ltd. v. Canada, [1999] F.C.J. No. 545, 166 F.T.R. 87, Justice Karon Sharlow held as follows:
14 There are no hard and fast rules that will determine in any particular case whether leave will be granted to extend a time limit for the commencement of a legal proceeding. The purpose of the time limit is to give effect to the principle that there must be an end to litigation. On the other hand, giving the court the discretion to extend the time limit recognizes that an extension of time may be necessary to do justice between the parties. These competing considerations must be borne in mind in considering whether to grant the extension.[See Note 2 below]
Note 2: Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (F.C.A.); Consumers' Ass'n (Can.) v. Ontario Hydro [No. 2], [1974] 1 F.C. 460 (F.C.A.).
15 The cases set out the factors to be taken into account. The most important of these is that the applicant must demonstrate an arguable case for the remedy sought or, as is said in some cases, a reasonable chance of success. In addition, the delay should be explained or justified, and there should be evidence that the applicant exercised reasonable diligence in asserting its rights. Usually this consists of evidence of a bona fide intention, in existence within the statutory time limits, to seek redress for the impugned decision, and evidence of the steps taken to pursue the matter. Any prejudice to the respondent or third parties must be taken into account.
[24] More recently in Jakutavicius v. Canada (Attorney General), [2004] F.C.J. No. 1488, 2004 FCA 289, Justice Marshall Rothstein confirmed the relevant considerations for extending time as noted above by Justice Sharlow. He went on to state that this list of considerations was not exhaustive and should not be applied mechanically. He also confirmed that the weight to be applied to the factors may vary from case to case.
[25] In order to apply Rule 8, I will now consider the several factors which bear on the exercise of that discretion.
Continuing Intention to Proceed
[26] The evidence suggests that Washagamis had instructed its counsel to “appeal” the Adjudicator’s decision within the time allowed. That intention is reflected in some of the subsequent communications between counsel but moreso as leverage to pursue a settlement objective than as an unqualified statement of actual intention. The significance of this is also diminished somewhat by the failure of Washagamis’ counsel to do anything in furtherance of his client’s apparent instructions for over six months. This is not a situation of inadvertence or simple mistake but rather a situation where counsel either deliberately ignored or was indifferent to the filing requirement for a considerable period of time.
Length of Extension Requested
[27] The delay in this case is a long one and well beyond the norm. Most of the cases where relief is granted involve delays of days or a few weeks, but not months.
Prejudice to the Opposing Party
[28] There is a clear and obvious prejudice to the nine Respondents if an extension is granted. Washagamis does not contend that it had cause for dismissal of any of the Respondents and, in the materials filed, it apparently only takes issue with the length of service attributed to three of the Respondents. In other words, Washagamis concedes that it owes all of the Respondents some amount and probably owes several of the Respondents the entire amounts awarded. Nevertheless, the Respondents have received nothing from Washagamis in even partial settlement of their respective awards. Despite its obligations, Washagamis has required the Respondents to attempt to collect their awards by resorting to the difficulty and expense of execution. Washagamis is, therefore, asking for discretionary relief in the face of its own flagrant indifference to its legal obligations and in circumstances where it, or its counsel, or both, clearly obstructed the timely disposition of the Canada Labour Code adjudication.
[29] The Respondents have waited 3 ½ years for their compensation and, if a judicial review was now to proceed, an additional delay of up to a year could well be the result. Washagamis could have minimized the effect of this factor had it made partial payments to the Respondents and/or paid any disputed amounts into Court. Instead, it has maintained a strategy of continuing resistance to all of the Respondents despite evidence of substantial hardship to many of them.
Explanation for Delay
[30] The explanation by Washagamis for the delay is to shift responsibility to its legal counsel. Even at that, it only says that it instructed counsel and is ‘unaware as to why Mr. Kropp had not complied with the limitation period requirement”. Mr. Thiessen’s affidavit says nothing about the failure to file beyond noting the stated intention to appeal and by referring the conduct of intervening settlement discussions. The latter consideration is, of course, no excuse for failing to initiate the application as required by the Rules.
[31] The Federal Court authorities are not entirely uniform in their treatment of the issue of solicitor negligence as an explanation for a failure to meet a filing deadline. Some of the authorities treat the client and its counsel as one and do not excuse the client for the negligence or failings of its counsel: see Chin v. Canada, [1993] F.C.J. No. 1033, 69 F.T.R. 77 at para. 10 and Cove v. Canada, [2001] F.C.J. No. 482; 2001 FCT 266 at para. 10. Other authorities have been somewhat more open to excusing a litigant for the failings of its counsel: see Mathon v. Canada, [1988] F.C.J. No. 707, 28 F.T.R. 217; Panta v. Canada, [1993] F.C.J. No. 898, 66 F.T.R. 73 and Bogdanov v. Canada, [1992] F.C.J. No. 1190.
[32] The arguable conflict among the Federal Court authorities was nicely summarized by Prothonotary Hargrave in Muhammed v. Canada, [2003] F.C.J. No. 1080, 2003 FC 828, where he observed at paras. 20 and 21:
20 Chin and Mathon are difficult to reconcile. In Chin the focus is on the concept that client and counsel are one and the same, thus the client is dragged under by the weight of the incompetent counsel. In Mathon, the case of the missed filing date, the focus, by way of Supreme Court of Canada authority, is on the concept that a client "who has acted with care should not be required to bear the consequences of such an error or negligence" (page 229). This is all the more the situation where the client lost a right as a result.
21 In choosing between the two approaches it is fitting to turn to Grewal (supra) which requires me to balance the factors bearing on a time extension with the overall view of doing justice between the parties. I will follow the line of cases culminating in Mathon, for the present instance presents the clear and specific case referred to by Mr. Justice Rothstein, as he then was, in Drummond (supra). Taking all of the circumstances into consideration, including the continuing intention to pursue the application; the merit of the application; the lack of any prejudice accruing to the Respondent by reason of delay; the explanation for the delay and particularly that it was former counsel who, by abandoning the Applicants after allowing time to run, deprived the Applicants of their right; and that to terminate this judicial review proceeding on the basis of the procedural negligence and/or incompetence of former counsel would constitute a windfall to the Crown, a time extension is appropriate. Costs shall be in the cause.
[33] I am inclined to the view that where a litigant establishes that it clearly instructed its counsel to proceed on a timely basis and that the failure to do so was solely the result of an error by counsel, the litigant should not be constructively held to have been a party to the error. Such an approach is also consistent with that adopted by other courts in dealing with solicitor error and missed limitation periods: see Woudstra v. Piston, [2004] O.J. No. 594, [2004] O.T.C. 160 (S.C.J.); Dreifelds v. Burton (1998), 38 O.R. (3d) 393, [1998] O.J. No. 946 (C.A.) and Tait v. CNR (1984), 11 D.L.R. (4th) 460, 64 N.S.R. (2d) 187, [1984] N.S.J. No. 398 (S.C.).
[34] Nevertheless, the problem of solicitor error in this case is not quite so apparent because the evidence to support the argument is weak. It is not obvious from the affidavits filed on behalf of Washagamis that it was completely uninformed about its counsel’s apparent failure to follow its instructions. Where the delay is lengthy and the litigant has been actively engaged in the conduct of a case and the furtherance of a litigation strategy such as that adopted here, the case for shifting complete responsibility to counsel for a filing error is weakened. A litigant cannot be wholly excused where it chooses to sit idly on the sidelines and fails to hold its counsel accountable.
[35] The circumstances of this case are similar to those in Nunez v. Canada, [2000] F.C.J. No. 555, 189 F.T.R. 147, where the affidavit evidence to support an allegation of solicitor negligence
was found to be deficient. There Justice Pelletier declined to grant relief for the following reasons:
16 The failure of a solicitor to take the proper steps on behalf of the client was found to be special reasons in Panta v. Canada [1993] F.C.J. No. 898 but in that case, the solicitor filed an affidavit admitting her role in the delay. Conspicuously, that is not the case here.
…
19 I am not prepared to accept an allegation of serious professional misconduct against a member of the bar and an officer of this court without having the member's explanation for the conduct in question or evidence that the matter has been referred to the governing body for investigation. In this case, there was ample opportunity to do one or the other but neither was done. The failure to do so is inconsistent with the gravity of the allegations made. This is not a question of being solicitous of lawyers' interests at the expense of their clients. It is a question of recognizing that allegations of professional negligence are easily made and, if accepted, generally result in the relief sought being granted. The proof offered in support of such an allegation should be commensurate with the serious nature of the consequences for all concerned.
[36] This issue of the sufficiency of evidence was also considered in Jules v. Canada, [2001] F.C.J. No. 1027; 2001 FCT 697, where Justice Yvon Pinard found the allegation of solicitor negligence to be insufficient because it was too “general” in nature (see para. 4).
[37] It is not enough for a litigant to allege that its counsel was negligent and then to claim that it knows nothing more. A litigant in such a situation must make the necessary inquiries of its counsel to find out exactly why the filing deadline was missed and to offer clear and convincing evidence to substantiate its own lack of responsibility. Usually that is accomplished by providing an affidavit sworn by counsel admitting to the error and confirming that the client was blameless. If that evidence is not put forward, it is often because counsel has a different version of what took place. The affidavits filed here on behalf of Washagamis are not sufficient to establish that it bears no responsibility for the filing error. In fact, the affidavits are insufficient to establish why the filing deadline was missed at all.
Has Washagamis Established an Arguable Case for Quashing the Adjudication Decision?
[38] In this case, Washagamis wants to challenge the procedural rulings made by Adjudicator Chapman by which its requests for an adjournment and for a reopening of its case were refused. It says that it has an arguable case and refers to Penelakut Indian Band v. Charlie, [1994] F.C.J. No. 95, 73 F.T.R. 150 and Clerk v. CPR, [2001] F.C.J. No. 710; 2001 FCT 449, as authorities for the right to be heard in the context of motions to adjourn or to reopen a hearing.
[39] The facts which grounded the rulings in Penelakut Indian Band and Clerk, above, were far removed from those which support Adjudicator Chapman’s procedural decisions. From Washagamis’ admittedly unjustified terminations of the Respondents’ employment to the repeated obstructionist conduct Washagamis and its counsel, Adjudicator Chapman had a plausible basis for denying Washagamis’ last minute requests for further delay.
[40] While I am prepared to find that Washagamis has an arguable case, its proposed challenge to Adjudicator Chapman’s procedural ruling is not without considerable doubt. When one adds to this consideration that Washagamis has, at best, only a partial defence to the claims of several of the Respondents, the significance of this factor is further diminished.
Conclusion
[41] After considering the test for relief under Rule 8, I am not prepared to grant an extension to Washagamis to commence its proposed application for judicial review. If it has been prejudiced by the failings of its legal counsel, it has other available recourse.
[42] The motion is, therefore, dismissed with costs payable to the Respondents in the amount of $3,500.00 inclusive of disbursements.
ORDER
THIS COURT ORDERS that the motion for an extension to file an application herein for judicial review is dismissed with costs payable to the Respondents in the amount of $3,500.00 inclusive of disbursements.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: 06-T-20
STYLE OF CAUSE: WASHAGAMIS FIRST NATION OF KEEWATIN, ONTARIO v. JEREMY LEDOUX ET AL
PLACE OF HEARING: Winnipeg, MB
DATE OF HEARING: September 11, 2006
APPEARANCES:
|
Greg Rickford
|
|
|
Lori Bertoni
|
SOLICITORS OF RECORD:
|
Keshen Major Kenora, Ontario
|
|
|
Carrel & Partners LLP Thunder Bay, Ontario
|