Date: 20011005
Docket: T-1282-01
Neutral citation: 2001 FCT 1094
BETWEEN:
STÉPHANE MARLEAU
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
[1] This is a motion by the applicant under rule 369 to reopen the proceedings and set a new timetable.
[2] The applicant brought an application for judicial review of a decision of the National Parole Board; that application for judicial review was filed on July 12, 2001.
[3] In response to an express request by the applicant, the prothonotary, Richard Morneau, rendered a decision on August 28, 2001, setting a specific timetable for the parties to follow.
[4] It should be noted that in that decision, prothonotary Morneau mentioned that the applicant had demanded a hearing before September 15, 2001, but that counsel for the applicant was not available between September 15 to October 8, 2001, because of his honeymoon.
[5] However, because the applicant wanted to be heard at the earliest possible time so that the application would not be futile, the Judicial Administrator set the hearing down for
October 17, 2001, in Montréal, by a decision dated August 31, 2001.
[6] The applicant subsequently decided to bring a petition for habeas corpus in the Superior Court, which he did on September 7, 2001.
[7] In the meantime, the applicant decided to file a discontinuance, with the consent of the other party, in this application for judicial review, which was to be heard on October 17, 2001.
[8] The transcript of the hearing before the Superior Court of Quebec indicates that the applicant acknowledged that he was not satisfied with the date of October 17, 2001, and that he therefore applied to the Superior Court to obtain a date more speedily.
[9] The decision rendered on September 7, 2001, by the Superior Court indicates that the petition for habeas corpus was dismissed.
[10] Counsel for the applicant even acknowledged before the Superior Court that it was not really a habeas corpus.
[11] The appellant is therefore trying to backtrack, now that his action has been dismissed in the Superior Court, and ask that the application for judicial review be reinstated as though nothing had happened, and that the times be adjusted accordingly so that a hearing on October 17, 2001, would still be possible.
[12] It seems clear to me that when the applicant filed his discontinuance on
September 4, 2001, he quite simply terminated his application for judicial review, with full knowledge of what he was doing.
[13] I agree with the respondent's argument that the applicant has no choice but to file a fresh application for judicial review of the decision of the Appeal Division of the National Parole Board in accordance with the provisions and rules of the Federal Court.
[14] When a discontinuance is filed with the Court, it cannot be withdrawn without a valid reason being stated, and that was certainly not done here.
[15] The reason cited by the applicant, lis pendens, could no doubt have been found to be valid had it been submitted before he filed his notice of discontinuance. The Court does have the power to stay an application pending in the Federal Court while waiting for another issue between the same parties to be resolved in another proceeding.
[16] However, it is now far too late and that choice would have had to be made before September 4, 2001.
[17] For all of these reasons, the motion by the applicant is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 5, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1282-01
STYLE OF CAUSE: STÉPHANE MARLEAU v. HER MAJESTY IN RIGHT OF CANADA
MOTION IN WRITING WITHOUT PERSONAL APPEARANCE
REASONS FOR ORDER OF MR. JUSTICE BLAIS
DATED: October 5, 2001
WRITTEN REPRESENTATIONS BY:
Daniel Royer FOR THE APPLICANT
Eric Lafrenière FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudreault, Côté
et Ass.
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT
Ottawa, Ontario