Date: 19980227
Docket: 97-T-45
BETWEEN:
VICTOR WALCOTT
Appellant
- and -
EMPLOYMENT AND IMMIGRATION CANADA
TREASURY BOARD
Respondents
REASONS FOR ORDER
ROTHSTEIN, J.:
[1] This is an application by the respondent to file responding materials on the applicant's application for an extension of time to file his application for judicial review, for rehearing the application for extension of time and for an order setting aside the order of the Rule 324 motions Judge of January 15, 1998 granting the extension of time. The respondent relies on Rules 329, 330 and 1733 of the Federal Court Rules, C.R.C. 1987, c. 663, as amended.
[2] The applicant's application to extend time to file his judicial review application was placed before the motions Judge on January 15, 1998. Although on January 9, 1998 the respondent had faxed the Court indicating an intention to oppose the extension application, this letter was not brought to the attention of the motions Judge. On the basis of the applicant's submission alone and in the absence of representation from the respondent, the motions Judge granted the extension application.
[3] The respondent's material in opposition to the extension application was received by the Court on January 16, 1998 after the decision to grant the application had been rendered. On January 28, 1998 the applicant filed his application for judicial review.
[4] The decision under attack is one made by another judge of the Trial Division. I agreed to hear the application only because the Court had previously directed that the matter be heard orally and because the applicant, appearing on his own behalf, had taken a day off work and it would place undue hardship on him not to proceed. However, judges of the Trial Division do not sit in appeal from decisions of other judges of the same division. The preferable practice is to bring an application under Rules 329 or 330 to the same judge who issued the original decision, except in exceptional circumstances. See Canada (Director of Investigation and Research) v. Softkey Software Products Inc. (1994), 84 F.T.R. 153; 57 C.P.R. (3d) 480.
[5] Rule 329(1) provides:
| 329. (1) Where the Court hearing a motion has proceeded in the absence of a party, then, provided that any order made on the hearing has not been carried out or acted upon, the Court, if satisfied that it is just to do so, may re-hear the motion. |
The applicant filed his judicial review application on January 28, 1998. For this reason Rule 329(1) is not applicable.
[6] The only rule that appears relevant is Rule 330:
| 330. The Court may rescind |
| (a) any order that was made ex parte, or |
| (b) any order that was made in the absence of a party who had failed to appear through accident or mistake or by reason of insufficient notice of the application; |
| but no such rescission will affect the validity or character of anything done or not done before the rescinding order was made except to the extent that the Court, in its discretion, by rescission order expressly provides. |
[7] There is no doubt that the January 15, 1998 order granting the extension of time was made in the absence of the respondent. It appears there was a mistake made by the Registry of the Court in not indicating to the motions Judge that the respondent intended to file material in opposition to the extension application.
[8] I think the facts are sufficient to bring the matter within Rule 330. For this reason the Court is prepared to receive the respondent's material and to rehear the applicant's motion to extend time.
[9] The respondent submits that the entire application should be dismissed because the applicant did not exhibit a continuing intention to bring his judicial review application, did not adequately explain his delay and does not demonstrate that he has a reasonable chance of success in an arguable case. These considerations on extension applications are well known. See, for example, Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (F.C.A.).
[10] I am satisfied the material shows that the applicant did demonstrate a continuing intention to seek judicial review and has adequately explained his delay. The only issue is whether the applicant has a reasonable chance of success in an arguable case.
[11] The applicant seeks to challenge a decision of the Deputy Chairperson of the Public Service Staff Relations Board acting as an adjudicator, which denied the applicant's grievance of the termination of his employment with the Department of Employment and Immigration.
[12] The applicant's materials are wide-ranging and exuberant as to the grounds for judicial review. As best as I can make out, the applicant alleges that certain evidence given before the adjudicator should have been considered as not credible. Had the adjudicator not believed this evidence, he would have ruled in favour of the applicant. In a number of rather animated assertions, the applicant goes to some lengths to explain why the evidence should not have been believed.
[13] There is also a suggestion of incompetence on the part of applicant's counsel before the adjudicator. The allegations are that counsel was inexperienced and that he refused to accept instructions and information from the applicant.
[14] As to the question of incompetence of counsel, it is not uncommon for unsuccessful litigants to blame counsel. Where incompetence can be demonstrated, there are procedures for complaints and claims against counsel. Further, the incompetence of counsel can only implicate a decision of a tribunal where that incompetence was so obvious and egregious that it was unfair for the tribunal to proceed. Such circumstances would be unusual. There is no indication in any of the material before me that the adjudicator would have been aware of any difficulties the applicant says he was having with counsel. The allegation of incompetency of counsel does not provide a basis for embarking upon a judicial review in this case.
[15] The allegations respecting evidence before the adjudicator also do not provide grounds for judicial review. Determinations as to the credibility of witnesses and the weighing of evidence are matters with which the Court will not normally interfere. This must especially be the case with the a Public Service Staff Relations Board adjudicator who is a specialized administrative tribunal. In Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455 at 464-465, Dickson, C.J. stated:
| A restrained approach to disturbing the decisions of specialized administrative tribunals, particularly in the context of labour relations, is essential if the courts are to respect the intentions and policies of Parliament and the provincial legislatures in establishing such tribunals. . . |
| A reviewing court, whether under s. 28(1)(b) of the Federal Court Act, or under the common law principles of judicial review, should not interfere with the decision of a statutory decision maker in a case such as this unless the statutory decision maker makes a mistake of law, such as addressing his or her mind to the wrong question, applying the wrong principle, failing to apply a principle he or she would have applied, or incorrectly applying a legal principle. |
More recently, the doctrine of judicial deference, as explained in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 and Southam Inc., et al. v. Canada (Director of Investigation and Research), [1997] 1 S.C.R. 748, would apply to a Public Service Staff Relations Board adjudicator when a decision is made within the scope of the adjudicator's jurisdiction. In such cases the Court will not interfere unless such decisions are patently unreasonable. There is no such indication here.
[16] Indeed in this case the Public Service Alliance of Canada which represented the applicant before the adjudicator concluded there were insufficient grounds to support an application for judicial review.
[17] I have concluded that the applicant does not have a reasonable chance of success on a reasonably arguable issue. As such he has failed to satisfy an essential ground for the granting of an order to extend time to file a judicial review application.
[18] The respondent's motion for an order setting aside the order of January 15, 1998 granting the applicant an extension of time to file his application for judicial review is granted. The
applicant's application to extend time is dismissed. The application for judicial review filed January 28, 1998 is declared invalid and is therefore dismissed.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
February 27, 1998
FEDERAL COURT OF CANADA
Date: 19980227
Docket: 97-T-45
BETWEEN:
VICTOR WALCOTT
Appellant
- and -
EMPLOYMENT AND IMMIGRATION CANADA
TREASURY BOARD
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: 97-T-45
STYLE OF CAUSE: VICTOR WALCOTT
| - and - |
| EMPLOYMENT AND IMMIGRATION CANADA, TREASURY BOARD |
| DATE OF HEARING: FEBRUARY 23, 1998 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: ROTHSTEIN, J. |
DATED: FEBRUARY 27, 1998
APPEARANCES: Mr. Victor Walcott
For the Appellant
Ms. Anne Margaret Oberst
For the Respondents
| SOLICITORS OF RECORD: Mr. Victor Walcott |
906 - 3575 Kaneff Crescent
Mississauga, Ontario
L5A 3Y5
For the Appellant
George Thomson
Deputy Attorney General
of Canada
For the Respondents