PRACTICE |
Variation of Time |
Canadian Freightways Ltd. v. Canada (Attorney General)
T-2279-01
2003 FC 926, Hargrave P.
28/7/03
6 pp.
Motion for extension of time within which to appeal Dawson J.'s order as to costs--Issues: acceptable explanation for delay; prima facie case: Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.)--Here, Attorney General did not attend award of costs, neither consented to nor opposed case, as overlooked possibility of award of costs being made against Attorney General--Not want of due diligence to overlook something completely unexpected-- However, applicant did clearly set out it sought costs in application for judicial review--Attorney General may not have strongest argument by which to explain delay, but by Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (C.A.), Court must balance strength, weaknesses of application for extension of time--As to prima facie case, while Attorney General argued inappropriate to award costs against independent tribunal (Canada Appeals Office on Occupational Health and Safety), costs awarded against Attorney General, not tribunal--Costs have been awarded against Attorney General in situations analogous to present: Griffiths v. Canada (Attorney General) (2000), 182 F.T.R. 130 (F.C.T.D.); R. v. James Lorimer and Company Limited, [1984] 1 F.C. 1065 (C.A.)--Crown also arguing costs should not have been awarded against Attorney General as did not act in adversarial manner, did not oppose application--First, Attorney General virtually forced applicant to take judicial review matter to hearing--Second, could have applied to escape from proceeding by way of Federal Court Rules, 1998, r. 303(3), or have taken proper step of consenting to have decision set aside--Third, by forcing applicant to proceed with hearing, but not addressing matter of costs or making some arrangements before hearing, Attorney General knowingly assumed risks of adverse award of costs, especially given it knew applicant seeking costs--Overall, Attorney General has not suggested prima facie case for reconsideration of exercise of discretion, as to costs, by hearing judge--While marginally reasonable excuse for delay, no merit whatsoever in argument that costs should not have been awarded against Attorney General--No prima facie case to support application for extension of time--Motion denied--Federal Court Rules, 1998, SOR/98-106, r. 303(3).