Date: 20050125
Docket: A-224-04
Citation: 2005 FCA 33
CORAM: DÉCARY J.A.
NADON J.A.
SEXTON J.A.
BETWEEN:
RON J. MCMAHON
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia on January 25, 2005.
Judgment delivered from the Bench at Vancouver, British Columbia on January 25, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date: 20050125
Docket: A-224-04
Citation: 2005 FCA 33
CORAM: DÉCARY J.A.
NADON J.A.
SEXTON J.A.
BETWEEN:
RON J. MCMAHON
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on January 25, 2005)
DÉCARY J.A.
[1] The issue in this appeal from a decision of Lemieux J., of the Federal Court, is whether subsection 14.02(4) of the Bankruptcy and Insolvency Act is mandatory or directory. The subsection reads:
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The decision of the Superintendent after a hearing referred to in subsection (1), together with the reasons therefor, shall be given in writing to the trustee not later than three months after the conclusion of the hearing, and is public.
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La décision du surintendant est rendue par écrit, motivée et remise au syndic dans les trois mois suivant la clôture de l'audition, et elle est publique.
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[2] In the case at bar, the Superintendent of Bankruptcy rendered his decision seven months after the expiration of the time prescribed. He offered no justification for the long delay. The appellant trustee sought judicial review of the decision and asked that it be quashed on the basis that the word "shall" made the time limit mandatory. As a result of its untimeliness, the trustee argues, the decision is void.
[3] Lemieux J. found that in the circumstances "shall" had to be read as directory only. We agree with his conclusion. We wish only to add that the fact that the time limit imposed by subsection 14.02(4) of the Bankruptcy and Insolvency Act (the "Act") may, under subsection 187(11) of the Act, be extended by the Court (i.e. a Court sitting in bankruptcy) before or after its expiration is another statutory indication it is directory rather than mandatory despite the use of the word "shall". Subsection 187(11) reads:
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(11) Where by this Act the time for doing any act or thing is limited, the court may extend the time either before or after the expiration thereof on such terms, if any, as it thinks fit to impose.
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(11) Lorsque la présente loi restreint le délai fixé pour accomplir une action ou chose, le tribunal peut prolonger ce délai, avant ou après son expiration, aux termes, s'il en est, qu'il estime utile d'imposer.
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[4] We are satisfied that Lemieux J. made no reviewable error in balancing the respective interests of the public and of the appellant and in finding that the appellant had "suffered little inconvenience or prejudice in the Superintendent's failure to decide within the prescribed time".
[5] That being said, we cannot accept that the Superintendent's failure to comply with the Act should not be sanctioned at all. We will, as suggested by the Supreme Court of Canada, albeit in a different context, in Blenco v. British Columbia (Human Rights Commissioner) [2000] 2 S.C.R. 307, grant the appellant his costs in this Court and in the Federal Court, on the basis of the upper end of Column V of Tariff B. To that extent, the decision of the Federal Court will be varied and an Order as to costs will be added to it.
[6] The appeal will therefore be dismissed with costs, except to the extent that the Order as to costs in the Federal Court is varied.
(Sgd.) "Robert Décary"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-224-04
STYLE OF CAUSE: Ron J. McMahon v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 25, 2004
REASONS FOR JUDGMENT : Décary, J.A.
DATED: January 25, 2004
APPEARANCES:
Mr. H. C. Ritchie Clark, Q.C. FOR THE APPELLANT
Mr. Jack Wright FOR THE RESPONDENT
SOLICITORS OF RECORD:
Devlin, Jensen FOR THE APPELLANT
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General for Canada