Digests

Marshall v. Canada (Solicitor General)

T-834-01

2002 FCT 168, Dawson J.

14/2/02

19 pp.

Motion for leave to file supplementary affidavit, extension of time to file notice of application--Application for judicial review seeking to set aside decision of Warden of Drumheller Institution in Alberta to transfer applicant on involuntary basis to Stony Mountain Institution in Manitoba, and order requiring applicant's return to institution in Alberta--Notice of application filed May 16, 2001, but in breach of Federal Court Rules, 1998, r. 301(c)(ii) as failed to set out date of decision under review, date on which first communicated to applicant--After filing application, applicant moved for interim order requiring return to institution in Alberta-- Respondents objecting to application for judicial review on ground filed more than nine months after expiry of 30-day time limit for challenging such decisions prescribed by Federal Court Act, s. 18.1(2)--Motion for interim relief dismissed--On June 1 respondents filing certified record, including institutional file relating to impugned decision to transfer--Applicant filing affidavit in support of application for judicial review on June 15 but only evidence relevant to issue of timely commencement of application for judicial review statement that not given formal notice of decision--On July 18 respondents filed affidavit of parole officer stating told applicant of decision to proceed with transfer on July 4 and personally served final notice of transfer on applicant on July 14--Copies of visitor logbook, records in offender management system, Institution Transfer (Involuntary) Referral Decision Sheet attached to affidavit as exhibits-- Nine days before hearing, applicant filing motion requesting leave to file additional affidavit, extension of time for filing of notice of application--Additional affidavit silent on when decision communicated to applicant, when formed intent to bring application for judicial review, whether ever waivered in that intent, explanation for delay--(1) Leave for filing supplemental affidavit refused--Principles governing exercise of Court's discretion set out in Wayzhushk Onigum Nation v. Kakeway (2000), 182 F.T.R. 100 (F.C.T.D.): while general test whether additional evidence will serve interests of justice, assist Court, not seriously prejudice other side, important that any supplementary affidavit not deal with material which could have been made available at earlier date; motion to file reply affidavit evidence ought to be brought promptly-- Evidence relevant to timeliness of application could, should have been made available earlier--Applicant knowing respondents' position application out of time since May 24-- Once respondents' record served on September 24, motion to file evidence in reply should have been brought promptly-- Given its nature, failure to deal with timeliness, proposed evidence neither serving interests of justice nor assisting Court--(2) Extension of time refused--Although knew of decision to transfer him by at least August 2000, applicant not commencing this proceeding until May 16, 2001--After quoting principles governing exercise of discretion to extend time articulated in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (C.A.); Council of Canadians v. Canada (Director of Investigation and Research, Competition Act) (1997), 212 N.R. 254 (F.C.A.) stating applicant must display due diligence--Justice not requiring extension of time given applicant's failure to display due diligence: no evidence as to intent to commence proceedings; no explanation for delay in commencing proceedings; length of delay; weak merits of underlying application for judicial review--As to latter, Warden entitled to weigh factor in Corrections and Conditional Release Act, s. 28(b)(i) (accessibility to person's home community and family) alongside safety, security concerns of penitentiary; evidence of compliance with Regulations, s. 12(b); some basis in evidence for Warden's decision applicant presented security risk; evidence applicant given notice of final decision, containing reasons therefor--Federal Court Rules, 1998, SOR/98-106, rr. 301(c)(ii), 369--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5)-- Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 28(b)(i)--Corrections and Conditional Release Regulations, SOR/92-620, s. 12.