Digests

Global Enterprises International Inc. v. Aquarius (The)

T-16-01

2002 FCT 193, Hargrave P.

21/2/02

21 pp.

Motion to extend time within which to file initial extension of time material, by which, in turn, to file appeal materials in proper form--Syndic, Polish trustee in bankruptcy, acting for estate of Gryf Deep Sea Fishing Company (Gryf)--On December 10, 2001 Syndic submitting three notices of appeal: (1) of indefinite adjournment of challenge to apparently non-existent motion of claimant to sale proceeds; (2) of order denying request both that Court appoint pro bono counsel for estate in bankruptcy of Gryf and that Syndic be released from any costs in proceeding; (3) of November 19, 2001 order striking out affidavit of claim--Because material in unacceptable form, December 17, 2001 direction issued, accepting documents for filing subject to conditions i.e. Syndic to provide affidavits of service; if material not filed within time required, Syndic must apply for extension of time; Syndic to authorize Registry to delete references to "Appeal Division" so that appeals might be directed to judge of Trial Division; Syndic to advise all counsel whether appeals to be spoken to or to be dealt with as motions in writing-- Directions including procedure for obtaining extension of time, indicating motion in writing must be based on proper evidentiary record, referring to need for affidavits-- Conditions precedent to be complied with by January 25, 2002--On January 18 Syndic forwarding to Court, counsel motion for extension of time to file notices of appeal and order dispensing with filing of motion record--Referring to affidavit in support, which was never received--Motion returnable January 23--On January 23, Syndic sending second similar motion, accompanied by affidavit of service, returnable on January 28--On January 28, no one having appeared for Syndic, and motions being bare motions, directions issued giving Syndic until February 1 to fax affidavit in support, written representations--Syndic then providing motion record containing bare motion, dated February 4, 2002, seeking reconsideration of January 28 direction, specifically as to February 1 deadline for service of material in support of Syndic's time extension motion-- Grounds set out in motion: Syndic's e-mail equipment in Poland not compatible with that of Federal Court of Canada and January 28 direction not received in timely manner; Syndic not present for longer time in Ssczecin, being registered place of business; only Syndic able to sign material related to these proceedings; Syndic away until February 11; affidavits must be sworn at Canadian Embassy in Warsaw, which requires time--February 8 direction authorizing acceptance of February 4 motion, to be dealt with as motion in writing February 15--Motion denied as conditions precedent to acceptance of notices of appeal not met--Such unsworn grounds should not be given any weight--That Syndic failing to retain counsel unfortunate but not itself bar to Syndic taking further steps--While motion record normally containing affidavit material, that requirement not necessarily absolute where facts on record providing basis for allowing motion--Absent affidavit material, adequate written representations to explain where to find facts in Court's record expected--Written reply representations filed by Syndic not evidence, not referring to material forming part of record of Court, but rather argument or material which, if in affidavit form, would invite cross-examination--That Syndic failed both to file affidavit material, written representations in support of motion to detriment of all, perhaps to prejudice of some, but not fatal--Inadequate material in support of motion not preventing consideration of motion on merits, looking at grounds set out in motion, for while may be difficult to understand some of material, cope with inadequate or non-existing material, no ambush--Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.) setting out tests for time extension--(1) Must be continuing intention to pursue present motion--No evidence from Syndic as to continuing intention to pursue motion for time extension--Measure of intent lack of effort put into filing material in support of motion--Thin, missing, unsubstantiated material in support indication of no real continuing intent to pursue motion-- Delay, without explanation, in perfecting motions of appeal, also indicative of lack of both interest, intent--(2) Application must have some merit--Of three underlying appeals, first doomed to failure; second resting on unstable grounds as possible estoppel preventing Syndic from seeking public funds in Canada by which to seek representation as funds already paid out of estate, and fact no absolute right to counsel at common law; third could not succeed as no material indicating why decision might be incorrect--Nothing showing appeals have some merit--(3) Must be no prejudice to other side--Delay of three months in appealing order prejudicial to all parties, claimants--Should priorities hearing have to be adjourned, could be many months before hearing could be rescheduled--(4) Must be reasonable explanation for delay-- Grounds for motion unacceptable excuse--Leaves unanswered why Syndic unable to meet fairly generous initial deadline--Syndic failed to establish exercise due diligence.