Date: 20050113
Docket: A-163-04
Montréal, Quebec, January 13, 2005
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
DELCO AVIATION LTÉE
Appellant
and
MINISTER OF TRANSPORT
Respondent
JUDGMENT
The appeal is dismissed without costs.
"Gilles Létourneau"
J.A.
Certified true translation
K.A. Harvey
Date: 20050113
Docket: A-163-04
Citation: 2005 FCA 8
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
DELCO AVIATION LTÉE
Appellant
and
MINISTER OF TRANSPORT
Respondent
Hearing held at Montréal, Quebec, January 10 and 13, 2005.
Judgment delivered from the bench at Montréal, Quebec, January 13, 2005.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20050113
Docket: A-163-04
Citation: 2005 FCA 8
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
DELCO AVIATION LTÉE
Appellant
and
MINISTER OF TRANSPORT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, January 13, 2005)
LÉTOURNEAU J.A.
[1] The appellant is appealing from an order of Mr. Justice Blanchard dated February 24, 2004. It is asking that this order be set aside to allow the motion it filed on November 17, 2003 to be set down for a formal hearing. The latter motion was to set aside an order dated October 9, 2002, which dismissed for delay its application for judicial review in docket T-1923-01. The reference to a formal hearing must be taken to mean an oral hearing in which the appellant wishes to call witnesses on its motion.
[2] Notwithstanding the regrettable circumstances that surrounded the proceedings in docket T-1923-01 of the Federal Court, we are of the opinion that this appeal should be dismissed.
[3] The appellant disputed by way of judicial review a decision of the Appeal Panel of the Civil Aviation Tribunal which, on September 19, 2001, upheld the appellant's conviction for two offences to the Aeronautics Act, R.S.C. 1985, c. A-2 (this Tribunal has since been replaced by the Transportation Appeal Tribunal of Canada: see the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29). The counsel who represented the appellant at the time, and who is not the one who appeared on its behalf on this appeal, did not pursue the judicial review proceeding he had commenced, although he was urged to do so by the Federal Court, on July 12, 2002, through a Notice of Status Review.
[4] In fact, not only was the negligence of the appellant's counsel such that he failed to respond to this invitation within the allotted time, which was August 23, 2002, but he never responded to it, even though the Federal Court waited until October 9, 2002 before dismissing the application for judicial review.
[5] The appellant was informed in May 2003 that its counsel had neglected to pursue his application and that it had been dismissed on October 9, 2002. However, it was not until November 17, 2003 that the appellant, represented by a new attorney, filed a motion to have the order of dismissal of October 9, 2002 set aside. The motion to set aside was itself dismissed, primarily on the ground, based on a long line of cases, that the negligence of a party's counsel does not, in itself, constitute a reason to set aside an order dismissing a proceeding for delay: see pages 2 and 3 of the decision.
[6] The appellant's counsel does not dispute the merits of this conclusion of the judge and its underlying reasoning. Instead, he criticizes the procedure that was followed in the Federal Court, which, he says, flouted the intentions clearly expressed by his client. A brief word of description and explanation of this procedure is necessary.
[7] The appellant's counsel filed his motion for a hearing to set aside the order of dismissal in the prescribed form. It had been put on the motions roll and was to be heard on January 26, 2004. However, it was struck from the roll on January 23, 2004 by a Direction of Mr. Justice Pinard. This Direction also ordered that the appellant's motion be decided, without appearance of the parties, pursuant to Rule 369, by the judge who had made the order in the first place. This Direction meant, therefore, that the decision would be made on the basis of the record, without hearing from witnesses.
[8] Once informed of this Direction, the appellant's counsel immediately contacted the administrator of the Registry to tell him that he was asking to be heard orally in the context of a formal hearing. He sent the Registry a written request along these lines, on January 29, 2004. The respondent's counsel confirmed in writing that they had no objection to proceeding in this way, but that they would defer to the discretion of the Court. The decision on the motion to set aside was made on the record without an oral hearing.
[9] The appellant's counsel does not dispute that the appellant is not strictly entitled to call witnesses and acknowledges that the Court has discretion in determining this question and the way in which the motion to set aside may be heard. In fact, an agreement between the parties on how to proceed does not bind the Court, which may, in the exercise of its discretion, prescribe another method permitted by the Rules, if it considers it less onerous and just as apt to determine the issue. But, counsel says, this discretion must still be exercised judiciously and, in the judicial exercise of this discretion, the parties' agreement on the appropriateness of proceeding with an oral hearing is one factor that the Court must consider. However, in this case, counsel complains, there is no indication in the judge's decision that he was informed of the appellant's request for an oral hearing.
[10] At the hearing, the appellant's counsel explained to us that the president of the corporation had wanted to testify in order to explain his difficulties with his first attorney and that he was frustrated at not having been heard.
[11] Rule 371 of the Federal Court Rules limits the hearing of witnesses on an issue of fact raised on a motion to special circumstances. Under rule 363, evidence of the facts is made by affidavit. A witness's desire or preference to be heard orally is not a special circumstance: Ye v. Canada (Min. of Employment and Immigration) (1992), 17 Imm. L.R. (2d) 77 (F.C.A.). Furthermore, no evidence was submitted that it was impossible in this case to relate by affidavit the facts surrounding the negligence of the first attorney. It is therefore far from certain that, even in the case of an oral hearing, leave to hear the witness would have been granted. Quite the contrary.
[12] As to the actual oral hearing, Pinard J. had already, when ordering that the analysis be conducted on the record, without appearance of the parties, cited the consistent case law in regard to this kind of motion. The adverse party, by his letter sent to the Court registry, deferred to the Court's discretion. The letters of the appellant and the respondent of January 29, 2004 were conveyed to Mr. Justice Blanchard that same day, by fax, at 10:04 a.m. and 11:47 a.m., as the Federal Court record reveals. The appellant asked in its letter to notify Blanchard J. of its request for a hearing in proper form, which was done forthwith by Mr. Poggi on behalf of the Federal Court. Although the judge did not specifically mention this exchange of correspondence, it is not unreasonable to think that he examined the appellant's request and considered it in light of his colleague's Direction, the common practice on this type of motion and the reply by the respondent, who had deferred to the Court's discretion.
[13] Whatever the case, the judge did consider the reasons behind the order dismissing the application for judicial review and he rightly found that the counsel's negligence could not excuse the delay in proceeding. Having done so, he had no choice but to dismiss the motion to set aside since the dismissal order was justified in law.
[14] Finally, we are concerned by this appeal by an appellant who, in January 2005, seeks to set aside a decision of October 2002 (one that is justified, moreover) penalizing the negligence of his mandatary, in order to enable him to recover from his failure to proceed with diligence, and, if successful, to allow him then to contest, with right of appeal and consequent delays, two convictions upheld in September 2001 for actions taken in May 1999. We can already anticipate another three or four years of litigation before it is finally ended.
[15] Both the procedural and the penal law recognize, in the beneficial interests of the parties and the administration of justice alike, the principle of the finality of judgments. The procedural rules governing the conduct of proceedings and appeals of judgments impose time limits precisely for the purpose of leading a dispute with dispatch to a decision that is ultimately clothed with the authority of res judicata.
[16] We can understand the disappointment and frustration of the appellant. But we do not believe it is in the interests of the administration of justice to reactivate the file on a motion to quash and for judicial review for which the chances of success on the grounds for revocation, the grounds in support of the defence and ultimately the two take-off charges are very minimal, given the admissions of fact, the evidence, the standard of review, the decisions and findings of fact of the Tribunal and the Appeal Panel, as well as the expertise of both these adjudicative bodies.
[17] For these reasons, the appeal will be dismissed without costs.
"Gilles Létourneau"
J.A.
Certified true translation
K.A. Harvey
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-163-04
STYLE: DELCO AVIATION LTÉE v. MINISTER OF TRANSPORT
PLACE OF HEARING: Montréal
DATE OF HEARING: January 10 and 13, 2005
REASONS FOR JUDGMENT
OF THE COURT: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
DELIVERED FROM
THE BENCH BY: LÉTOURNEAU J.A.
DATED: January 13, 2005
APPEARANCES:
Stéphane Gauthier FOR THE APPELLANT
Bernard Letarte FOR THE RESPONDENT
Marie-Eve Sirois Vaillancourt FOR THE RESPONDENT
SOLICITORS OF RECORD:
CAIN LAMARRE CASGRAIN WELLS FOR THE APPELLANT
Montréal, Quebec
John Sims FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario