Date: 20040218
Docket: A-470-03
Citation: 2004 FCA 71
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
Sylvio Belmonte et al.
Applicants
v.
Longshoremen's Union
CUPE Local 375
and
Maritime Employers Association
Respondents
Motion in writing decided without appearance of the parties.
REASONS FOR ORDER: PELLETIER J.A.
Date: 20040218
Docket: A-470-03
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
Sylvio Belmonte et al.
Applicants
v.
Longshoremen's Union
CUPE Local 375
and
Maritime Employers Association
Respondents
REASONS FOR ORDER
PELLETIER J.A.
[1] The respondent, Longshoremen's Union CUPE Local 375, has filed a motion to strike out the application for judicial review on three grounds:
(1) the application for judicial review was filed out of time and no application for an extension of time has been filed;
(2) the substance of the dispute that is the subject matter of the application is res judicata; and
(3) the applicants have not exhausted their remedies with the Canada Industrial Relations Board, namely, a request for reconsideration.
[2] The applicants dispute the validity of the grounds cited by the respondent and request a hearing as provided in subsection 369(2) of the Federal Court Rules, 1998. The reasons given for their request for a hearing demonstrate a lack of understanding of this Court's procedures. The applicants would not be allowed to use the hearing of the motion to supplement the evidence or to call witnesses concerning the allegations of the respondent. The framework of the hearing would be the respondent's motion and not the applicants' allegations before the Canada Industrial Relations Board. Given the inconsistency in the reasons in support of the request for a hearing, that request is denied.
[3] On the motion itself, two of the three grounds cited cannot be characterized as questions that would justify summarily striking out an application for judicial review. These are questions the factual and legal complexity of which warrant a hearing before this Court. The third ground, the one alleging the filing forthwith of the application for judicial review, is an appropriate subject for a motion to strike.
[4] In their submissions, the applicants dispute that their application was filed out of time, relying on the fact that their counsel was not in his office when the disputed decision was sent to his firm. The respondent assumes that the conveyance of the decision to the applicants' counsel is deemed to be its communication to the applicants, a question that is not addressed in the applicants' submissions. However, the latter request "[translation] the right to file a motion to that effect if applicable, and if this Honourable Court should consider it necessary". The applicants and their legal advisors will have to decide whether such an application is necessary; it is not the job of this Court to indicate to them the appropriate course of action for the purpose of arguing their position.
[5] In the interests of dealing fairly with an important question, I am staying the examination of the respondent's motion for fifteen days, during which the applicants may, if they consider it appropriate, file a motion for an extension of time with proof and written submissions in support. Should the applicants conclude that it is unnecessary to file such a motion, the Court will dispose of the motion on the strength of the record without additions to the record. An order will be issued following this stay period.
"J.D. Denis Pelletier"
J.A.
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-470-03
STYLE: Sylvio Belmonte et al.
Applicants
v.
Longshoremen's Union
CUPE Local 375
and
Maritime Employers Association
Respondents
MOTION IN WRITING EXAMINED WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER: PELLETIER J.A.
DATED: February 18, 2004
WRITTEN OBSERVATIONS BY:
Robert Astell
For the applicants
Isabelle Leblanc
For the Longshoremen's Union CUPE Local 375
Marie-Hélène Jetté
For the Maritime Employers Association
SOLICITORS OF RECORD:
Astell Leblanc Downs For the applicants
Montréal, Quebec
Lamoureux, Morin, Lamoureux
Longueuil, Quebec
For the Longshoremen's Union CUPE Local 375
Ogilvy Renault, General Partnership
Montréal, Quebec
For the Maritime Employers Association