PRACTICE
Variation of Time
Appeal from Prothonotary’s order dismissing application for extension of time within which to serve, file supporting affidavits because delay in pursuing action not adequately explained, appellant failed to submit proposed affidavits—Prothonotary erring in principle by requiring appellant to address question of delay which had already been decided when matter put into case management—Current status review system criticized for not providing indication of steps needed to regularize proceeding—Only test: why has applicant not taken next step required by Federal Courts Rules, SOR/98-106 (as am. by SOR/2004-283, s. 2) to move file forward?—Because appellant complied with order according to terms, prothonotary should have exercised discretion, in spirit of r. 3, to allow appellant to file r. 306 affidavits in order that prothonotary could dispose of motion on merits—Appeal allowed.
Nowoselsky v. Canada (Attorney General) (A-544-04, 2006 FCA 382, Pelletier J.A., judgment dated 21/11/06, 5 pp.)