Date: 19990602
Docket: A-617-95
CORAM: LINDEN J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
(Applicant)
- and -
PHILIP HENNELLY
Respondent
(Respondent)
Heard at Toronto, Ontario, Wednesday, June 2, 1999
Judgment delivered orally from the Bench
at Toronto, Ontario on Wednesday, June 2, 1999
REASONS FOR JUDGMENT OF THE COURT BY: McDONALD J.A.
Date: 19990602
Docket: A-617-95
CORAM: LINDEN J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
(Applicant)
- and -
PHILIP HENNELLY
Respondent
(Respondent)
REASONS FOR JUDGMENT OF THE COURT
(Delivered orally from the Bench at Toronto, Ontario
on Wednesday, June 2, 1999)
McDONALD J.A.
[1] We are all of the opinion that this appeal must be dismissed. We recognize that it is usually routine for parties to consent to extensions of time in circumstances such as these and equally routine for the Court to allow an extension on this basis.
[2] Nonetheless, the presence or absence of consent for an extension of time is not determinative of the issue.
[3] The proper test is whether the applicant has demonstrated
| 1. a continuing intention to pursue his or her application; |
| 2. that the application has some merit; |
| 3. that no prejudice to the respondent arises from the delay; and |
| 4. that a reasonable explanation for the delay exists. |
[4] Any determination of whether or not the applicant's explanation justifies the granting of the necessary extension of time will turn on the facts of each particular case.
[5] We do not understand the Motions Judge to be saying that one of the criteria for granting an extension is whether or not consent has been given.
[6] In this case the Motions Judge found that inadvertence was an insufficient explanation for the appellant's delay.
[7] We can find no compelling reason to interfere with the Motions Judge's exercise of discretion in finding that the appellant failed to provide an adequate explanation which would justify granting an extension of time.
[8] The appeal will be dismissed with costs to the respondent fixed in the amount of $100.00.
"F.J. McDonald"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-617-95
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
| Appellant |
(Applicant)
- and -
| PHILIP HENNELLY |
| Respondent |
(Respondent)
DATE OF HEARING: WEDNESDAY, JUNE 2, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McDONALD J.A.
Delivered at Toronto, Ontario
on Wednesday, June 2, 1999
APPEARANCES: Mr. Derek Edwards
| For the Appellant |
(Applicant)
Mr. Philip Hennelly
In Person For the Respondent
(Respondent)
| SOLICITORS OF RECORD: Morris Rosenberg |
Deputy Attorney General
of Canada
| For the Appellant |
(Applicant)
Philip Hennelly
489 Heatherhill Place
Waterloo, Ontario
N2T 1H7
In Person For the Respondent
(Respondent)
FEDERAL COURT OF APPEAL
Date: 19990602
Docket: A-617-95
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
(Applicant)
- and -
PHILIP HENNELLY
Respondent
(Respondent)
REASONS FOR JUDGMENT
OF THE COURT