80-A-323
Westclox Canada Limited, Hunter Enterprises
Orillia Limited, Dicon Systems Limited and
Tellus Instruments Limited (Applicants)
v.
Pyrotronics of Canada Limited (Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, June 12, 1980.
Customs and excise — Application for extension of time
within which to apply for leave to appeal and motion for leave
to appeal from decision of Tariff Board — Whether or not
leave to appeal must be obtained and filing and service of a
notice of appeal must be effected, within sixty days from the
making of the order — Whether or not time for obtaining leave
to appeal may be extended after expiry of period of time to be
extended — Application and motion dismissed — Customs
Act, R.S.C. 1970, c. C-40 as amended, s. 48(1)(c) — Federal
Court Rule 2(2) — Interpretation Act, R.S.C. 1970, c. I-23,
s. 11.
APPLICATION for extension of time within which
to appeal and motion for leave to appeal.
COUNSEL:
A. de Lotbiniére Panet, Q.C. for applicants.
John D. Richard, Q.C. for respondent.
SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for applicants.
Gowling & Henderson, Ottawa, for respond
ent.
The following are the reasons for order ren
dered in English by
HEALD J.: I agree with counsel for the respond
ent that paragraph 48(1)(c) of the Customs Act,
R.S.C. 1970, c. C-40, as amended, requires per
sons in the position of these applicants, to both
obtain leave to appeal and to file and serve a notice
of appeal within 60 days from the date of the
making of the order, finding or declaration. Since
the applicants have neither obtained leave to
appeal, nor filed a notice of appeal within the
60-day period set out in paragraph 48(1)(c), they
have failed to comply with the provisions of that
paragraph.
I also agree with respondent's counsel that this
Court cannot extend the time for obtaining leave
to appeal and filing the notice of appeal under said
paragraph 48(1)(c) since the period of time to be
extended no longer exists—that is—there is no
time period remaining for the Court to extend.
The applicants submit that Rule 2(2)' of this
Court, enables the Court to extend the time for
obtaining leave to appeal. In my view, that Rule
does not assist the applicants here. That Rule has
reference to "the substantive law" and could not
operate to enable the Court to ignore the clear
words of a statutory enactment. The applicants
also cite section 11 of the Interpretation Act,
R.S.C. 1970, c. I-23. In my view that section,
likewise, does not assist these applicants. A
requirement to give to a statute: "... such fair,
large and liberal construction and interpretation as
best ensures the attainment of its objects" would
not empower a Court to ignore the clear and
unambiguous mandate set out in said paragraph
48(1)(c) of the Customs Act.
The applicants make the following further
submission:
Pursuant to section 48(1) of the Customs Act, R.S.C. 1970,
c. C-40, the Applicants herein have sixty days to institute an
appeal. However, since leave to appeal must be obtained from
this Honourable Court within the sixty day time period and
since the rules of natural justice require that the other parties
be allowed to file submissions to the application for leave to
appeal and allow the Applicant a reply to those submissions,
and further, since this Honourable Court must be allowed time
to consider the application for leave to appeal, it is clear that
the sixty day time period is not within the Appellant's control.
If the Respondent is correct in saying that this Honourable
Court cannot grant an extension of time, then the effect of the
Respondent's Submission is that the sixty day time period in
section 48(1) of the Customs Act, R.S.C. 1970, c. C-40 is
something less and the Respondent is further saying, that in
spite of Rule 2(2) and the Federal Court Act sub-sections
46(1)(c) and 46(2), this Honourable Court cannot ensure the
proper working of the Customs Act.
The answer to this submission is that the appli
cants could have requested, pursuant to Rule 1107,
that their application for leave to appeal be heard
Rule 2(2) reads as follows:
Rule 2....
(2) These Rules are intended to render effective the sub
stantive law and to ensure that it is carried out; and they are
to be so interpreted and applied as to facilitate rather than to
delay or to end prematurely the normal advancement of
cases.
orally and would undoubtedly, in the circum
stances, have been able to obtain an early date for
the hearing of the application for leave. It is
therefore not correct to suggest that these appli
cants had lost control of the situation or that the
Court is unable to ensure the proper working of
the Customs Act.
For these reasons, the application for extension
of time within which to apply for leave to appeal,
as contained in applicants' counsel's letter of May
15, 1980 is dismissed and the applicants' motion
for leave to appeal is also dismissed.
* * *
URIE J.: I agree.
* * *
RYAN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.