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M wished to seek judicial review of a decision of involuntary transfer.
The notice of application for judicial review was filed on May 16, 2001,
but in breach of Rule 301 (c)(ii) of the Federal Court Rules, 1998, failed
to set out the date of the decision under review and the date on which
it was first communicated to M. The Solicitor General objected to the
application for judicial review in its entirety on the grounds that the
final decision to transfer M was communicated to him on July 14, 2000.
Therefore, the Solicitor General argued that the application for judicial
review had been filed more than nine months after the expiry of the 30-day
time limit for challenging such decisions as set out in subsection 18.1(2)
of the Federal Court Act. Within the next months, both applicant and respondent
filed affidavit evidence. On January 14, 2002, a notice of motion was
filed by M requesting leave to file an additional affidavit (sworn 10
days prior), and an extension of time for the filing of the application.
The two issues dealt with by the Court: 1) Should leave be given to file
M’s supplemental affidavit? 2) Should an extension of time be granted
with respect to the filing of the application for judicial review?
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Dawson J. began the analysis by considering the first issue. The applicable rule is Rule 312(a). Reviewing judicial consideration of Rule 312, Dawson J. established that the filing of a supplementary affidavit is allowed in limited instances and special circumstances. The general test is whether the additional material will serve the interests of justice, will assist the Court and will not seriously prejudice the other side, it is also important that any supplemental affidavit neither deal with material which could have been made available at an earlier date. Moreover, a motion to file reply affidavit evidence ought to be brought promptly. In applying the principles to the facts in M’s case, Dawson J. concluded that evidence relevant to the timeliness of the application for judicial review and any required extension of time could and should have been made available at an earlier date. In the exercise of its discretion the Court declined to give leave for the filing of the supplemental affidavit. In considering the second issue, whether an extension of time should be granted, Dawson J. reviewed the applicable principles and concluded that in this case, the Court was not satisfied that justice required that the extension of time be granted. To begin with, Dawson J. was not satisfied in any way that M displayed due diligence. The Court accepted the parole officers’ evidence that M, did in fact, receive the impugned decision on July 14, 2000, and concluded that M did nothing to challenge the decision until May 16, 2001. Also relevant was the absence of any evidence as to the intent to commence proceedings and the absence of any explanation for the delay in commencing proceedings. The length of delay was also a factor. In considering what justice requires, Dawson J. also reviewed the merits of M’s underlying application for judicial review. Given the absence of due diligence and that Dawson J. viewed the arguments to be advanced on the application for judicial review as appearing weak, it was concluded in the exercise of the Court’s discretion that the extension of time be refused. The application, therefore, should be refused as being brought out of time. Dawson J. not only dismissed M’s application but also went on to award the Solicitor General costs in the amount of $500.00.
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