Date: 20030228
Docket: T-425-02
Neutral citation: 2003 FCT 253
Ottawa, Ontario, February 28th, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
Applicant (the "Union")
and
TELUS MOBILITY
Respondent (the "Employer")
REASONS FOR ORDER AND ORDER
[1] The applicant Union seeks an order extending the time period for filing an appeal. It wishes to appeal an order of Rouleau J. dated December 6, 2002. It filed its Notice of Appeal on January 9, 2003, beyond the 30-day time period stipulated in s. 27(2) of the Federal Court Act. The failure to file the Notice of Appeal in a timely fashion was due, according to counsel for the applicant, to a misunderstanding surrounding the calculation of the 30-day period in light of the intervening Christmas recess. The misunderstanding derived, at least in part, from a communication between counsel and the Federal Court Registry. According to Mr. David Aaron, one of the applicant's counsel, he was informed by the Registry that the Christmas recess did not form part of the reckoning of the 30-day appeal period.
[2] Subsection 6(3) of the Federal Court Rules states:
6. (3) Unless otherwise directed by the Court, a day that falls within the Christmas recess shall not be included in the computation of time under these Rules for filing, amending or serving a document.
[3] This Rule clearly applies only to time periods set out in the Rules themselves. It does not supercede subsection 27(2) of the Act, which provides:
| 27. (2) An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Court (a) in the case of an interlocutory judgment, within ten days, and (b) in any other case, within thirty days, in the calculation of which July and August shall be excluded, after the pronouncement of the judgment or determination appealed from or within such further time as the Trial Division or the Tax Court of Canada, as the case may be, may, either before or after the expiration of those ten or thirty days, as the case may be, fix or allow.
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27. (2) L'appel interjeté dans le cadre du présent article est formé par le dépôt d'un avis au greffe de la Cour, dans le délai imparti à compter du prononcé du jugement en cause ou dans le délai supplémentaire que la Section de premièère instance ou la Cour canadienne de l'impôt, selon le cas, peut, soit avant soit après l'expiration de celui-ci, fixer ou accorder. Le délai imparti est de : a) dix jours, dans le cas d'un jugement interlocutoire; b) trente jours, compte non tenu de juillet et août, dans le cas des autres jugements.
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[4] Case law under s. 27(2) sets out the factors that must be present in order for an extension to be given to the statutory time frame. See, e.g., Karon Resources Inc. v. Canada, [1993] F.C.J. No. 1322 (T.D.), which sets out the following factors:
(1) whether the appeal itself has merit; there must be arguable issues to put before the Court of Appeal;
(2) whether there are special circumstances showing or explaining why the appeal was not brought within the prescribed time limit;
(3) whether a bona fide intention to appeal existed before the time for appeal expired;
(4) whether the delay has been excessive;
(5) whether the other party(ies) will be prejudiced by an extension of the time within which to appeal; and
(6) whether it is in the interests of justice to grant the time extension.
[5] It is conceded by the respondent that factors 3, 4 and 5 are present here. The second factor relates to the existence of special circumstances and I accept the applicant's explanation for the cause of the missed deadline as describing a special circumstance. The final factor is a general, overarching one that should be considered in light of all of the facts and circumstances. I shall leave it to the end. The real controversy in this motion relates to the first factor: whether there is an arguable issue on the appeal.
[6] In its motion record the applicant attempts to satisfy this aspect of the test by reference solely to its Notice of Appeal. The respondent argues that this gives no indication of whether there is any arguable point of law raised by the appeal. The applicant attempted to provide more information by outlining the foundation of its appeal in its reply. However, the respondent states that the applicant should not be allowed, in effect, to amend its motion record by supplementing it on reply, thereby denying the respondent the ability to make appropriate submissions. I agree. I have not considered the applicant's reply submissions with respect to the existence of an arguable case for the appeal.
[7] As I read the case law, however, the applicant's tendering of its Notice of Appeal in satisfaction of the requirement to show that the appeal has some merit is not necessarily fatal. In Karon Resources Inc., the applicant filed no evidence, beyond its Notice of Appeal, to demonstrate the merits of its appeal. Justice Simpson reviewed the notice and found that the grounds of appeal set out in it "shed no light on the appeal's merits" (at para. 10). She did not hold that a Notice of Appeal could never be sufficient on its own. In fact, the case turned primarily on the absence of evidence relating to the second factor - special circumstances. Under that heading she stated:
I have found there is no proper evidence before me on this subject and for this reason the application must fail. The Affidavit should have clearly stated that a solicitor's error was involved. It should have explained the error and shown that a diligent effort was made to correct it by promptly filing an application for an extension of time for filing the Notice of Appeal (at para. 10).
[8] It should also be noted that the affidavit filed by the applicant in Karon Resources Inc. was extremely scant. Simpson J. stated that it was "of no assistance on several important issues" and "bare to the point of being misleading" (at paras. 5 and 6). In the end, therefore, she found that the evidence submitted by the applicant in support of the motion was "not sufficient to justify the extension" (at para. 10).
[9] It remains to be decided, therefore, whether the Notice of Appeal is sufficient in this case to support a conclusion that the appeal raises an arguable issue and, if so, whether the interests of justice justify extending the time for filing the Notice of Appeal.
[10] The Notice of Appeal sets out twelve errors alleged to have been made by the trial judge under four categories: "Error in Interpretation of Order"; "Error in Determining Compliance with Order"; "Error in Determining Enforceability of Order"; and "Other". In my view, the Notice of Appeal does more than "simply demonstrate that an appeal exists" (as in Karon Resources Inc.). It provides details on the errors alleged to have been made and, in my view, on the facts in this case, is sufficient to conclude that there is some arguable foundation for the appeal. This is certainly not to say that a Notice of Appeal will always be sufficient for these purposes.
[11] The final question is whether an extension of time is in the interests of justice. I am concerned that the applicant may have been inadvertently misled by Court personnel. Obviously, this is no criticism of the Court's staff. Compliance with the Act and the Rules is the responsibility of counsel. Still, considering all of the foregoing factors and the overall circumstances of this matter, I conclude that interests of justice favour permitting an extension to the time limit set out in s. 27(2) of the Act in order to permit the filing of the Notice of Appeal.
[12] I have dealt with this motion on the basis of the materials filed by the Telecommunications Workers Union and Telus Mobility. I have not considered the materials filed by Mr. David Wells as he is not currently a party in this matter.
ORDER
THIS COURT ORDERS that the applicant's motion for an extension of time to file its Notice of Appeal is granted.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: T-425-02
STYLE OF CAUSE:
TELECOMMUNICATIONS WORKERS UNION
Applicant (the "Union")
and
TELUS MOBILITY
Respondent (the "Employer")
MOTION DEALT IN WRITING WITHOUT
THE APPEARANCE OF PARTIES: Ottawa, Ontario
REASONS FOR ORDER OF: The Honourable Mr. Justice O'Reilly
DATED: February 28, 2003
WRITTEN REPRESENTATIONS BY:
Morkey D. Shortt, Q.C. FOR THE "Union"/ Applicant
Israel Chafetz . FOR THE "Employer"/ Respondent
SOLICITORS OF RECORD:
Shortt, Moore & Arsenault
Suite 1300, 1140 West Pender Street
Vancouver, British Columbia FOR THE "Union"/ Applicant
Taylor Jordan Chafetz
Suite 1010 - 777 Hornby St.
Vancouver, British Columbia FOR THE "Employer"/ Respondent