Federal Court Decisions

     Court No. T-2096-96

BETWEEN:

     COUNCIL OF CANADIANS and

     JAMES MCGILLIVRAY

     Plaintiffs

     - and -

     DIRECTOR OF INVESTIGATION AND RESEARCH

     (CompetitionAct) and HOLLINGER INC.

     Defendants

     REASONS FOR ORDER

CULLEN, J.:

     This is a motion, by the applicants, to extend the time for the bringing of an application under section 18.1 of the Federal Court Act.

THE FACTS

     The respondent Director of Investigation and Research (hereinafter, the "Director") issued an advance ruling certificate (hereinafter, "ARC") in respect of a transaction whereby the co-respondent Hollinger Inc. (hereinafter, "Hollinger") acquired effective control of Southam Inc. (hereinafter, "Southam"). A press release announcing the transaction was issued on May 24, 1996.

     The applicant Council of Canadians (hereinafter, the "Council") is a non-profit organization with over 60,000 members, which provides a critical voice on national issues such as social programmes and policy, Canadian culture and sovereignty, the environment, and free trade. The applicant Council learned about the above transaction on May 27, 1996.

     The steps that the applicant Council took regarding the transaction are as follows:

     The Council discussed the transaction, and on June 5, 1996, issued its own press release calling for government intervention in the takeover. The Council obtained a copy of the Competition Act, and inquired at the Competition Bureau about how to launch an appeal. The Council received a reply from the Competition Bureau by the third week of June, and then discussed the issue some more. There was a press conference on July 2, 1996, where the Council again called for government intervention in the takeover. The following week, the Council requested a legal opinion as to what legal action, if any, it could take. The Council received a legal opinion on July 19, 1996, stating that there was a thirty-day time limit on an application for judicial review. At that time, the Council's lawyer sent a letter to the Competition Bureau indicating a possibility of litigation in the matter. The Council held a strategy session with other groups on July 24, 1996, in which the possibility of launching the said lawsuit was raised. There was no consensus on the issue, and the Council agreed to meet with the groups again on August 21, 1996. At the August 21 meeting, there still was no consensus on whether the lawsuit should be launched. Finally, on September 6, 1996, a consensus to support the lawsuit was achieved, and the Executive Board of the Council officially approved the Council's involvement in the lawsuit. The Council filed the originating notice of motion in this matter on September 18, 1996.

     The applicant James McGillivray (hereinafter, "McGillivray") is a graduate student who is a reader of the daily press and is involved in alternative media projects. The applicant McGillivray learned of the transaction on September 5, 1996. McGillivray joined the Council in issuing the originating notice of motion on September 20, 1996.

THE ISSUE

     There are two issues in this motion. First, was there a justifiable delay in the applicants' commencing the action herein? Second, if there was a justifiable delay, do the applicants have standing to bring such an action?

DISCUSSION

Motion to extend time: when does the clock start ticking?

The law: Under subsection 18.1(2) of the Federal Court Act, judicial review of a decision of a federal board, commission or other tribunal shall be made to the court within thirty days after the communication of the decision to the party directly affected thereby, or within such further time as a judge of the Trial Division may allow.

     In order to obtain the unusual, discretionary remedy of a time extension under subsection 18.1(2), an applicant must both justify the delay in commencing an action within the thirty day period, and establish a reasonable chance of success on the merits.¹ To justify the delay, the applicant must show evidence of a stated intent to commence an application within the thirty day period. There must be a continuing intention to bring an application for judicial review, and, at a bare minimum, the applicant must show that there is, at least, an arguable case.²

     In my opinion, the applicants' case fails on the issue of justifying the delay. In order to succeed, the applicants ought to have shown an intent to commence the current application before the end of June. The Council has demonstrated that it intended to do something from the time that it learned of the issuance of the ARC. But, it has not demonstrated that the intent was focussed on bringing an application for judicial review. Litigation was but one of the avenues of redress under consideration. The earliest that I am able to identify a clear intent to commence the application is September 6, 1996, when the Executive Board of the Council finally approved the Council's involvement in the application. One cannot conclude, on the basis of the evidence before me, that the Council had formed an intent to pursue the current application before that September 6 meeting. By any account, the Council was clearly beyond the thirty day limit prescribed in the legislation, in intent and in its actions, when it brought the application before this Court.

     The same can be said for James McGillivray. The statutory clock does not start ticking when a person finds out about a decision, but when the decision is actually made and communicated to the party directly affected thereby.

     It is one thing to ask for an extension of time pursuant to the legislation, but it is entirely another to change the provision as to when that time starts to run -- which is exactly what counsel for the applicants would have this Court do. Although the granting of a time extension is a discretionary decision, the provision is quite clear as to the time limits within which such a request can be made and communicated. The clock starts running when the decision to approve the transaction was made and communicated to the parties directly affected, and not from the time that the applicants received a legal opinion on the transaction. And even if the clock were to have started running when the legal opinion was given, the applicants would still have been out of time.

     One may well empathize with the applicants in their delay in commencing this application for judicial review. It takes a lot of time, energy, commitment from various sources, and money to launch a lawsuit by a non-profit organization. However, this does not exempt the applicants from meeting the minimum legal standards in such an application.

     Because the applicants have failed in justifying the delay, I find no need to comment on the latter part of the test regarding the chance of success of the application.

     Nor need I decide the issue of standing. However, had I found that a time extension was justified, I am still not satisfied that either applicant had standing. Are the applicants "directly affected by the matter in respect of which relief is sought," per subsection 18.1(1)? Neither applicant was a party to any of the said proceedings before the Director. There is a possible argument that the Council represents the public interest, but it is a weak argument at best. And as for James McGillivray, it would be even more difficult to prove standing. As the applicant was in Shiell v. Amok,³ the applicant McGillivray here will not be affected in any way different from that felt by any other member of the general public. The applicants may have fine political arguments to make about the interests at stake, but such arguments are best made in different fora, as they simply do not satisfy the legal test for standing. The legal test is whether or not a party is directly affected by the event at issue. Interest and concern relative to the issues raised by this application do not, per se, confer the requisite "standing" entitling the applicants to bring this application.

CONCLUSION

     Having regard to counsels' able submissions and all of the evidence before me, I hereby dismiss this motion.

OTTAWA

     B. Cullen

septembre 17, 1999

     J.F.C.C.

__________________

     ¹Kue v. Canada (Solicitor General) (1993), 22. Imm. L.R. (2d) 140 (Fed. T.D.).

     ²Canada (Human Rights Commission) v. Canada (Armed Forces) (1994), 29 Admin. L.R. (2) 81 (Fed. T.D.).

     ³33 Admin. L.R. (2d) 122 (Fed. T.D.).