PRACTICE |
Variation of Time |
La-Z-Boy Canada Ltd. v. Allan Morgan and Sons Ltd.
A-115-04
2004 FCA 368, Rothstein J.A.
1/11/04
7 pp.
Cross-motion by appellant to extend time to file notice of appeal from decision of Competition Tribunal--Notice filed 27 days after Tribunal's order--Competition Tribunal Act, s. 13(1) providing that order from Tribunal to be treated as judgment of F.C.--Pursuant to Federal Courts Act, s. 27(2)(a), time for filing notice of appeal within 10 days after pronouncement of interlocutory decision--In any other case time is 30 days pursuant to s. 27(2)(b)--Whether order interlocutory, final depending on its character, effect--Appeal herein from order granting leave--Such order interlocutory as not determining substantive rights of parties--Notice of appeal thus filed out of time--Considerations on application to extend time summarized in Sim v. Canada (1996), 108 F.T.R. 291 (F.C.T.D.)--Respondent's argument sufficient evidence in record for Court to exercise own discretion re: leave application rejected because (1) material before Court not including evidence before Tribunal; (2) appellant need show only arguable issue, not that it will be successful; (3) Court not in position to determine how appeal panel might exercise discretion--La-Z-Boy demonstrating appeal has merits--Respondent's argument that prejudiced by unrecoverable costs of appeal rejected, as such prejudice not resulting from granting of extension--Where criteria for granting extension, particularly that there is merit to appeal, satisfied, in interests of justice that extension be granted-- Motion granted--Competition Tribunal Act, R.S.C., 1985 (2nd Supp.), c. 19, s. 13(1) (as am. by S.C. 2002, c. 8, s. 130)--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 27(2) (as am. by R.S.C., 1985 (4th Supp.), c. 51, s. 11; S.C. 1990, c. 8, ss. 7, 78 (E); 2002, c. 8, s. 34).