Date: 20000601
Docket: A-688-98
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
IRVINE FORREST
Appellant
- and -
THE SOLICITOR GENERAL FOR CANADA
CORRECTIONAL SERVICE OF CANADA (ONTARIO REGION)
Respondent
Dealt with in writing without appearance of parties
JUDGMENT delivered at Ottawa, Ontario, the 1st of June 2000
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 20000601
Docket: A-688-98
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
IRVINE FORREST
Appellant
- and -
THE SOLICITOR GENERAL FOR CANADA
CORRECTIONAL SERVICE OF CANADA (ONTARIO REGION)
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] On October 13, 1998, a Judge of the Trial Division dismissed the application of Mr. Forrest for judicial review of a decision refusing his request to be transferred to a medium security institution. On November 12, 1998, Mr. Forrest filed a notice of appeal of that decision. By order of McDonald J.A. rendered on May 4, 1999, and amended May 27 and June 15, 1999, the contents of the Appeal Book were determined and the Administrator was directed to prepare the Appeal Book. The Appeal Books were prepared, served and filed by August 19, 1999.
[2] The Appellant has never filed a memorandum of fact and law. On January 6, 2000, a notice of status review was issued. Mr. Forrest made submissions in support of the continuation of his appeal. The Respondent argued that the appeal should be dismissed with costs. Rothstein J.A. reviewed the submissions filed by Mr. Forrest and the Respondent and ordered Mr. Forrest to serve and file his memorandum of fact and law on or before April 14, 2000, failing which his appeal would be dismissed. He made no mention of costs.
[3] Mr. Forrest has not filed a memorandum of fact and law. Instead, on April 11, 2000 he filed a notice of motion asking for more time, and for an order directing the Ontario legal aid to provide him with assistance or alternatively for an order to appoint counsel. He says that he requires a transcript of the proceedings in the Trial Division which he cannot afford. He also says that for various other reasons he is unable to proceed without financial assistance. Counsel for the Respondent seeks directions as to whether or not Mr. Forrest's appeal will be dismissed in accordance with the order of Rothstein J.A.
[4] I have carefully reviewed Mr. Forrest's motion and the material filed with it. I am not persuaded that it would be appropriate in this case to order the Ontario legal aid authorities, or any lawyer, to provide legal assistance to Mr. Forrest, assuming I have the jurisdiction to do so. From the material filed by Mr. Forrest, it appears that his application for legal aid was refused because the legal aid authorities concluded that the appeal has insufficient merit to justify the expenditure of public funds on his behalf. The legal aid authorities note that even if the appeal were to succeed, the immediate practical result would not be the transfer sought by Mr. Forrest. They also suggest that the decision under appeal is moot, in the sense that it has been superceded by subsequent decisions.
[5] I am not persuaded that Mr. Forrest's failure to comply with the order of Rothstein J.A. was the result of lack of funds to obtain a transcript. It is rare that the transcript of a hearing in an application for judicial review is relevant to an appeal. The order directing the contents of the Appeal Book does not refer to the transcript, and Mr. Forrest does not say why he believes the transcript is necessary. Nor is there anything else in the material filed by Mr. Forrest that affords a reasonable excuse for his delay in filing a memorandum of fact in law.
[6] For these reasons, Mr. Forrest's motion for an extension of time and for an appointment of legal counsel will be dismissed.
[7] Having dismissed these motions, there is no reason not to give effect to the order of Rothstein J.A. Accordingly, this appeal will be dismissed. No order is made as to costs.
Karen R. Sharlow
J.A.
"I concur
Marshall Rothstein J.A."
"I agree
Brian Malone J.A."