Date: 20041209
Citation: 2004 FCA 418
EVANS J.A.
PELLETIER J.A.
BETWEEN:
DENNIS NOWOSELSKY
Appellant
and
TREASURY BOARD
(Solicitor General Canada - Correctional Service)
Respondent
Heard at Saskatoon, Saskatchewan, on November 10, 2004.
Judgment delivered at Ottawa, Ontario, on December 9, 2004.
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: DESJARDINS J.A.
EVANS J.A.
Date: 20041209
Docket: A-174-03
Citation: 2004 FCA 418
CORAM: DESJARDINS J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
DENNIS NOWOSELSKY
Appellant
and
TREASURY BOARD
(Solicitor General Canada - Correctional Service)
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1] Mr. Dennis Nowoselsky is a former parole officer who was fired for cause. He grieved his dismissal but an adjudicator dismissed his grievance. Believing that the adjudicator's decision should be set aside, Mr. Nowoselsky made an application for judicial review but without the assistance of a lawyer. As is often the case with self-represented litigants, the course of that application has been marked by a series of procedural irregularities. Mr. Nowoselsky's most recent misstep was his failure to file a motion for an extension of time to appeal a decision of a prothonotary. As a result, the Court declined to accept his appeal for filing. Given that the decision which Mr. Nowoselsky was seeking to appeal was an order dismissing his application for judicial review for failure to meet a prior filing deadline, Mr. Nowoselsky finds his application dismissed unless the Motions Judge's decision is set aside. Sympathetic as I am to Mr. Nowoselsky's plight, I can not grant him the relief he seeks.
[2] This unfortunate saga began when Mr. Nowoselsky missed the deadline for filing his application record. This prompted the Crown to bring a motion seeking to have Mr. Nowoselsky's application dismissed because of his failure to comply with the Federal Court Rules, 1998 (the Rules). In disposing of that motion, Prothonotary Hargrave (the Prothonotary) had this to say:
That this matter has languished is the fault of both sides and of the Court. I note that the Respondent took over three months to get an appearance filed. The Applicant was then unable to meet a deadline for filing his record. Counsel for the Respondent and ad hoc counsel for the Applicant were subsequently unable to reach an agreement as to an extension for filing the record, an agreement which might have resolved matters a number of months ago. At various times Registry officials perhaps have misunderstood both what was happening and the ultimate goal of moving this matter along.
[Endorsement dated March 20, 2002.]
[3] The Prothonotary dismissed the Crown's motion and gave Mr. Nowoselsky a period of time within which to file a motion for an extension of time to file his record. Mr. Nowoselsky complied and made his request for an extension of time. The Prothonotary dismissed that motion because the material filed in support of the motion did not show that Mr. Nowoselsky had an arguable case, a requirement which this Court endorsed in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399. The Prothonotary was well aware of the consequences of his decision. He began his reasons by writing:
Depriving a litigant of a day in court is not a step that should be undertaken lightly. However, even a lay litigant is bound to follow the Federal Court Rules. Moreover, the Rules and the law which develops around the Rules must be applied fairly and equally to all litigants.
[Endorsement dated June 25, 2002.]
[4] Mr. Nowoselsky sought to appeal the Prothonotary's order, but he did so outside the time limit provided in the Rules. His material was rejected. He wrote directly to the Case Management Judge asking for his assistance in organizing a telephone conference call with counsel for the Crown to sort the issue of the filing deadline. The Court responded with a Direction advising Mr. Nowoselsky that he must bring a motion for an extension of time for filing his appeal.
[5] In purported compliance with this direction, Mr. Nowoselsky filed a Notice of Motion appealing the Prothonotary's order, seeking an extension of time for filing his application record, allowing the re-filing of his Application Record and Memorandum of Fact and Law and an order dispensing with compliance with the Rules "such that the Applicant's Notice of Application filed March 29, 2001 may be heard upon the merits." The head of relief which is conspicuous by its absence is a request for an extension of time for filing his appeal from the Prothonotary's decision. The Motions Judge before whom the matter came dismissed Mr. Nowoselsky's motion, noting the specific direction which he had been given to file a motion seeking an extension of time. Mr. Nowoselsky now appeals that order.
[6] Before us, Mr. Nowoselsky makes the simple but compelling point that he has tried his best to comply with the Rules and that all he wants is a chance to have his case heard on the merits. That said, Mr. Nowoselsky asks us to overturn a decision of a Motions Judge in which the judge applied the Rules according to their terms. In order for us to intervene, we would have to find that the judge acted on a wrong principle or failed to give the sufficient weight to relevant considerations. Pharmascience Inc. v. Canada (Minister of Health) (F.C.A.), [2004] 2 F.C.R. 349, 2003 FCA 333, at para. 5. After careful consideration, I cannot say that the judge acted on a wrong principle or that she failed to give sufficient weight to relevant considerations when she dismissed Mr. Nowoselsky's motion.
[7] Rule 8(1) provides that the Court may, on motion, extend or abridge a period provided by the Rules or fixed by an order. Rule 47(2) says that where the Rules provide that the powers of the Court are to be exercised on motion, they shall only be exercised on motion. The effect of these two Rules is that the Court cannot overcome the absence of a motion seeking an extension of time by acting on its own motion. The Motions Judge could not proceed in the absence of a Notice of Motion seeking an extension of time. While Mr. Nowoselsky's material also asked for an order dispensing with compliance with the Rules under Rule 55, the Motions Judge did not see fit to exercise her discretion in his favour. Given the history of this file, I cannot say that she acted on a wrong principle in doing so.
[8] The obligation to comply with the Rules weighs more heavily on those who do not have the benefit of professional advice. But that fact alone does not justify the Court in dividing litigants into two classes: those who are bound by the Rules and those who are not. Everyone is bound to comply. The imperatives of the Rules may be mitigated somewhat by the grace of counsel facing an unrepresented litigant, or by the Court's judicious exercise of the discretion to excuse compliance, but these are remedial measures and not a licence for non-compliance. In the end, the amounts saved by foregoing the assistance of counsel may well have to be paid out in time spent in becoming acquainted with the law and the Rules.
[9] For these reasons, I would dismiss the appeal.
"J.D.Denis Pelletier"
J.A.
"I agree
Alice Desjardins J.A."
"I agree
John M. Evans J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-174-03
STYLE OF CAUSE: DENNIS NOWOSELSKY V. TREASURY BOARD
PLACE OF HEARING: SASKATOON, SASKATCHEWAN
DATE OF HEARING: NOVEMBER 10, 2004
REASONS FOR JUDGMENT : PELLETIER, J.A.
CONCURRED IN BY: DESJARDINS J.A.
EVANS J.A.
DATED: DECEMBER 9, 2004
APPEARANCES:
Mr. Dennis Nowoselsky
on his own behalf FOR THE APPELLANT
Mr. Chris Bernier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Dennis Nowoselsky
Prince Albert, Saskatchewan FOR THE APPELLANT
Morris Rosenberg
Deputy Attorney General of Canada
Saskatchewan Regional Office FOR THE RESPONDENT