Date: 20060301
Docket: 06-A-8
Citation: 2006 FCA 91
Present: SHARLOW J.A.
BETWEEN:
KAREN E. MAHEU
Applicant
AND
THE ATTORNEY GENERAL OF CANADA
AND THE COMMISSIONER OF CORRECTIONS
AND THE CHAIRPERSON VRB MISSION INSTITUTION
CORRINE JUSTASON
Respondents
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on March 1, 2006.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20060301
Docket: 06-A-8
Citation Number: 2006 FCA 91
Ottawa, Ontario, March 1, 2006
PRESENT: SHARLOW J.A.
BETWEEN:
KAREN E. MAHEU
Applicant
AND
THE ATTORNEY GENERAL OF CANADA
AND THE COMMISSIONER OF CORRECTIONS
AND THE CHAIRPERSON VRB MISSION INSTITUTION
CORRINE JUSTASON
Respondents
REASONS FOR ORDER
[1] A motion record has been submitted on behalf of the applicant to seek an extension of time for appealing the order of the Federal Court dated September 9, 2005. That order denied, on grounds of mootness, a motion filed on July 28, 2005 for an extension of time to file an application for judicial review. It appears that the application for judicial review would have been a challenge to the decision of certain prison authorities in relation to the applicant's visiting rights at Mission Institution.
[2] According to Canada v. Hennelly (1999), 244 N.R. 399 (F.C.A.), the factors to be considered in an application to extend time to commence an appeal are:
1. whether the applicant has demonstrated a continuing intention to pursue the appeal;
2. whether the appeal has some merit;
3. whether the respondent is prejudiced by the delay;
4. whether there is a reasonable explanation for the delay.
[3] The respondent has not filed a motion in response, but rather has sought directions because the applicant's notice of motion was not signed by the applicant or by a solicitor, in apparent contravention of Rule 119 of the Federal Courts Rules, SOR/98-105. However, the respondent has not filed a notice of motion to strike out the applicant's motion on that basis, and as far as I can tell from the motion record, the applicant's spouse was permitted to represent her in the Federal Court. In these circumstances, it seems to me appropriate to deal with the applicant's motion without the benefit of a response. I will also assume in the applicant's favour that the respondent would not be prejudiced by the delay.
[4] It appears that the commencement of the appeal was delayed because the applicant did not receive a copy of the order at her address in Texas. Apparently it had been sent to the address of her representative, who claims to be her common law spouse and a para-legal, but it did not reach him because he is an inmate of a federal penitentiary and, due to a transfer and other difficulties, was unable to access his mail until late November of 2005. The notice of motion was filed on January 31, 2005. It appears that the intervening period was taken up with the preparation of documents and the execution of an affidavit of the applicant in Texas.
[5] The material in the motion record is not sufficient to establish whether the Federal Court order was sent to the applicant's address of record as it appears in the Federal Court File (05-T-57). If it was, it is difficult to see why she should complain about a failure to receive it.
[6] A more important problem is that it is not possible to determine, from the applicant's motion record, whether the appeal has merit.
[7] The order sought to be appealed was a discretionary one. Such a decision will not be reversed unless it was based on an error of law or there has been a wrongful exercise of discretion in that no weight or insufficient weight was given to relevant considerations, or irrelevant factors were considered: Elders Grain Co. v. Ralph Misener (The) (F.C.A.), [2005] 3 F.C.R. 367.
[8] It appears that the appeal in this case would essentially be a challenge to the judge's finding of mootness, on the basis that this case is not distinguishable from Soper v. Attorney General of Canada, 2004 FC 669 (see also Soper v. Attorney General of Canada, 2004 FC 1457). However, it cannot be determined from the material filed exactly what was before the judge when the September 9, 2005 order was made. Therefore, it is impossible to determine whether the judge's finding of mootness was correct in law, or whether the judge properly considered the factors that might be taken into account in determining whether an appeal should be heard despite being moot: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
[9] Even if the motion record did contain enough material to permit an evaluation of the judge's finding of mootness, it would be deficient because it contains nothing to permit a consideration of whether the judge had a sufficient basis for considering the Hennelly factors.
[10] For these reasons, this application for an extension of time will be dismissed.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 06-A-08
STYLE OF CAUSE: KAREN E. MAHEU
Applicant
and
THE ATTORNEY GENERAL OF CANADA
AND THE COMMISSIONER OF CORRECTIONS
AND THE CHAIRPERSON VRB MISSION INSTITUTION
CORRINE JUSTASON
Respondents
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: MARCH 1, 2006
WRITTEN REPRESENTATIONS BY:
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FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
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Deputy Attorney General of Canada |
FOR THE RESPONDENTS |