| This
was an appeal from a decision of a Motions Judge by which he dismissed
B’s motion for an order extending the time to file an application for
judicial review from the decision of the CSC ordering his involuntary
transfer from a medium security to a maximum security institution. B had
brought his application for judicial review approximately eight months
after he received the final denial of his grievance. In allowing the appeal,
Létourneau J.A. first considered the basic rule established by s18(2)
of the Federal Court Act. It is that judicial review must be sought within
30 days from the day the impugned decision is rendered. An extension of
the time may be granted but, as a general rule, such extension will be
allowed only if the entire delay is satisfactorily accounted for and if
the application discloses a fairly arguable case within the jurisdiction
of the Court. However, it should be borne in mind that the underlying
consideration in applications of this kind is whether, in the circumstances
presented, to do justice between the two parties calls for the granting
of the extension. In applying these principles, Létourneau J.A. held that
B had given a reasonable and satisfactory explanation for the eight-month
delay in bringing his application for judicial review and that he has
established an arguable case. In terms of the delay, Létourneau J.A. noted
that throughout the almost three years he had been in maximum pursuant
to the transfer, B has relentlessly tried to attack the decision but in
vain. While his initial grievance was still pending, B sought legal advice
and unsuccessfully attempted to acquire Legal Aid. Létourneau was sensitive
to the fact that by the time B’s final grievance was denied, he was alone
in a maximum security penitentiary, without legal knowledge and legal
representation and with a freedom of movement severally restricted which
greatly reduced his access to legal services. B continuously tried to
obtain the services of a lawyer to challenge before the Federal Court
his involuntary transfer. In the end, in despair, without appropriate
resources and some eight months after the expiration of the delay to challenge
the dismissal of his grievance, B wrote to the court and sent his claim.
In regards to an arguable case, the facts established a serious concern
over the CSC’s obligation to provide disclosure. Létourneau concluded
that in this case justice required that an extension be granted to have
the legality of the transfer reviewed. |
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