[1994] 1 F.C. 81
T-1270-93
Luc LeBlanc (Applicant)
v.
National Bank of Canada (Respondent)
Indexed as: LeBlanc v. National Bank of Canada (T.D.)
Trial Division, MacKay J.—Halifax, July 26; Ottawa, August 25, 1993.
Practice — Variation of time — Application to extend time for filing application for judicial review of adjudicator’s decision denying unjust dismissal complaint — Late filing of application said to result from delay in receiving English translation of decision — Adjudicator not exceeding jurisdiction in addressing issue of just cause — Factual and legal basis for judicial review not established — No reasonable explanation for delay — No reasonable chance of success in application for judicial review if extension granted.
This was an application to extend the time limit prescribed by the Federal Court Act, subsection 18.1(2) for filing an application for judicial review. The decision under attack was rendered by an adjudicator who dismissed a complaint of unjust dismissal made by the applicant under section 240 of the Canada Labour Code. The applicant’s solicitors received the Adjudicator’s 78-page decision, which was rendered in French, on March 17, 1993, but it was only two weeks later that they were sent the English translation which they had requested. The application for judicial review having been filed on May 28, more than thirty days after the communication of the decision, the respondent moved to have the applicant’s originating notice of motion struck as filed out of time. Noël J. granted that motion “without prejudice to the applicant’s right to re-apply before the Trial Division for an order extending the time to file his application”. The applicant argued that he could not have prepared the application for judicial review until he was in receipt of the translation and that, given the length of the decision and the complexity of the issues raised by the application, it was not possible to prepare the documentation within the time limit required by the Act. The issue was whether the explanation given by the applicant provided a legal basis for the Court to exercise discretion and grant an extension of time.
Held, the application should be dismissed.
It could not be said that the Adjudicator had exceeded his jurisdiction in addressing the issue of just cause arising from the applicant’s complaint, in that the circumstances set out in subsection 242(3.1) of the Canada Labour Code were not established. The applicant could hardly have established an arguable case merely by repeating the general grounds set out in subsection 18.1(4) of the Federal Court Act as a basis for the Court’s intervention. Some reference to the factual and legal basis for judicial review should have been provided in support of the position that applicant had a reasonable chance of success. It was not evident from reading the affidavit of the applicant that the alleged errors in findings of fact could all be said to have been made in a perverse or capricious manner or without regard to the evidence before the Adjudicator, or that they were the basis of his decision. While the Court, in considering an extension of time, must not weigh finally the merits of the case, the case law is clear that the Court must be persuaded that the applicant has a reasonable chance of success in an arguable case. The explanation for delay in seeking an extension of time revealed some inept steps by counsel in not making timely application which could have been done even after receipt of the English version. However, these missteps would not be enough to preclude the exercise of discretion, had the applicant established a basis for the Court to conclude, in the interests of justice between the parties, that there was a reasonable chance of success in an application for judicial review. The applicant’s affidavit did not reveal a reasonable chance of success if an extension of time to commence proceedings for judicial review were now granted; nor did it set out grounds for concluding that the Adjudicator had acted without jurisdiction in his interpretation of the law or by making findings of fact in a patently unreasonable manner.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 242 (as am. idem, s. 16), 243.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem., s. 5), 51.
Federal Court Rules, C.R.C., c. 663, RR. 324, 1614 (as enacted by SOR/92-43, s. 19).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263; (1985), 63 N.R. 106 (C.A.).
CONSIDERED:
CUPE, Local 76 v. Campbellton (City of) (1983), 46 N.B.R. (2d) 83; 121 A.P.R. 83 (C.A.).
REFERRED to:
Montreal Flying Club Inc. v. Syndicat des employés de l’Aéro-club de Montréal (1975), 7 N.R. 177 (F.C.A.); Canada Post Corp. v. Pollard, [1992] 2 F.C. 697; (1992), 53 F.T.R. 112 (T.D.); Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,029; 26 N.R. 341; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81.
APPLICATION to extend the time limit prescribed by subsection 18.1(2) of the Federal Court Act for filing an application for judicial review. Application dismissed.
COUNSEL:
Heather C. Doyle Landry for applicant.
Cathy Auchinleck for respondent.
SOLICITORS:
Petrie Richmond, Fredericton, for applicant.
Ogilvy Renault, Ottawa, for respondent.
The following are the reasons for order rendered in English by
MacKay J.: This is an unusual application for an order pursuant to Rule 1614 of the Federal Court Rules [C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] to extend the time limit prescribed by subsection 18.1(2) of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5] as amended, for filing an application for judicial review.
The application, opposed by the respondent, was heard in Fredericton, New Brunswick, on July 26, 1993, when decision was reserved. On July 30, I signed an order dismissing the application, with costs to the respondent. These are my reasons for that order, filed in accord with section 51 of the Federal Court Act.
The applicant’s objective, if an extension of time were granted, is to have judicial review of the decision of Me Léonce Roy, an adjudicator appointed under section 242 of the Canada Labour Code, R.S.C., 1985, c. L-2 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16] to consider the complaint of the applicant, Luc LeBlanc, under section 240 [as am. idem, s. 15] of the Code, that he had been unjustly dismissed from his employment by the respondent, National Bank of Canada.
The applicant’s complaint was originally referred to Adjudicator Jean-Claude Roy who heard and dismissed a preliminary motion by the applicant to limit evidence regarding the grounds of dismissal, and decision on that preliminary motion rendered May 29, 1992, was not questioned by judicial review. Thereafter, that Adjudicator withdrew and Adjudicator Léonce Roy was appointed to hear the complaint. Hearings on the merits were held September 30, October 1, 13 and 14, 1992.
At the conclusion of the hearings, the Adjudicator is said to have undertaken to provide the applicant’s solicitors, who are unilingual English speaking, with an English translation of his decision when it should be issued. On March 17, 1993 the applicant’s solicitors received the Adjudicator’s decision, dated March 5, 1993, some 78 pages in the French language. They immediately requested, of the Adjudicator and Labour Canada, an English translation. It appears that Labour Canada and counsel for the respondent received the decision of March 5, about a week earlier than it was received by the applicant’s solicitors. Subsequently, on April 2, 1993, the applicant’s solicitors received an English translation of the decision.
On April 6, solicitors for the applicant sought consent of the respondent’s solicitors for an extension of time to file an application for judicial review of the decision or as counsel for the respondent describes it, they sought consent that time for filing the application should commence after April 2, the date on which the English translation of the decision was received, not after March 17 when the decision, in French, was received. Consent was refused. There was a difference of opinion between counsel for the parties about the date when time would begin to run for the filing of an application under subsection 18.1(2) of the Federal Court Act which limits the time for applying for judicial review to a time “within thirty days after the time the decision or order was first communicated … to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.” Counsel for the respondent says there was also a difference between him and counsel for the applicant in their telephone conversation on April 6 about the division of this Court in which application for an extension of time should be filed. Counsel for the applicant believed that should be done in the Court of Appeal, but counsel for the respondent avers that he indicated that was not the proper forum and that the Federal Court Act should be reviewed by applicant’s counsel.
I note that when this discussion took place there was still time for the application for judicial review to be filed in accord with the Rules even if the respondent were right that time for filing, 30 days, should begin to run as of March 17 when the decision in French was received by applicant’s counsel. Presumably in support of his position about the time allowed by the Rules respondent’s counsel avers that senior counsel for the applicant indicated during the course of the hearing that he was capable of understanding and reading French but he was unable to converse in the French language, while the applicant himself was fluently bilingual and chose to testify in the French language.
On April 21, 1993 applicant’s counsel, without advice to the respondent’s counsel, filed an application, ex parte, in the Federal Court of Appeal, requesting that the time for filing an application for judicial review be extended to June 15, 1993. An affidavit of one of counsel for the applicant, in support of the motion urged that the matter be considered on an ex parte basis, since proceeding by Rule 324 would unduly delay consideration of the matter beyond the time ordinarily provided for filing in the Rules, a time which counsel averred would expire on May 1. On April 30, the applicant’s ex parte motion was granted by one of my colleagues in the Court of Appeal who by order extended the time for filing to May 31.
When that order reached counsel for the respondent he wrote to counsel for the applicant, indicating that the Federal Court of Appeal was, in his view, the wrong forum for the proceedings and that the respondent would oppose any motion in the Trial Division to extend the time for filing an application for judicial review.
On May 28 applicant’s counsel filed an application for judicial review in the Trial Division of this Court, without including a request for an extension of time for filing. By letter of June 3 applicant’s counsel advised counsel for the respondent that an originating notice of motion and supporting affidavit had been filed in the Federal Court of Appeal, though copies of those documents enclosed with the letter indicated they had been filed in the Trial Division of the Court, as had in fact been done.
On June 4, the respondent filed notice of motion, returnable at Ottawa on June 17, that the originating notice of motion be struck on the ground that it was filed out of time, and the order of the Court of Appeal extending time could not be relied upon in a section 18 [as am. by S.C. 1990, c. 8, s. 4] (or 18.1) application to the Trial Division. When that motion came on for hearing, with representations in writing by counsel for Mr. LeBlanc, that motion was granted by my colleague Mr. Justice Noël. In his reasons, Noël J. notes that this was done “without prejudice to the applicant’s right to re-apply before the Trial Division for an order extending the time to file his application.”
This application to extend the time for filing an originating notice of motion in the Trial Division was filed June 29, and heard, as noted above, on July 26 in Fredericton, N.B. It is supported by the affidavit of Heather C. Doyle Landry, one of counsel for the applicant. That affidavit does not append as an exhibit the draft of an originating notice of motion proposed to be filed if that now be permitted though it does refer to the originating notice of motion filed May 28 and the order of Noël J. disposing of it, and copies of those are included in the exhibits to the solicitor’s affidavit. The affidavit filed in support of the motion for an extension of time recounts much of the history of this matter, not entirely to the satisfaction of the respondent, and includes the following paragraphs.
10. It was not possible to prepare the Application for Judicial Review until the Applicant was in receipt of the English translation of the Decision. Given the length of the Decision and the complexity of the issues which we expect to be raised in the Judicial Review Application, it was not possible to prepare the documentation required within the time limit specified in section 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 (the “Act”).
11. The 30 days for filing an Application for Judicial Review pursuant to section 18.1(2) of the Act expired on May 1, 1993.
12. On April 21, 1993, the Applicant filed an Ex Parte Motion with the Federal Court of Appeal (Court File No.: 93-A-401) for an extension of the time for filing an Application for Judicial Review. The Ex Parte Motion was filed before the expiry of the 30-day limitation period for filing an Application for Judicial Review. Attached hereto and marked as Exhibit “D” is a copy of the Ex Parte Motion and Affidavit in support thereof.
13. I erroneously and inadvertently filed the Ex Parte Motion with the Federal Court of Appeal (rather than the Trial Court) believing it to be the proper Court.
It then reviews events following the order extending time granted by the Court of Appeal up to the decision of Noël J. striking the applicant’s originating notice of motion. The affidavit continues:
22. I am not aware of any prejudice that the Respondent has suffered or will suffer as a result of an extension of time for the filing of the Originating Notice of Motion. Mr. Coleman [counsel for the respondent] has been aware from the outset that the Applicant would be making an Application for Judicial Review.
23. The Applicant would be extremely prejudiced if an Order extending the time for filing the Originating Notice of Motion were not granted.
24. I have reviewed the English translation of the Adjudicator’s Decision and do verily believe that the Applicant has a more than reasonable chance of success in its Application for Judicial Review on the merits.
25. The grounds for the Application for Judicial Review are as follows: the Adjudicator failed to observe the principals [sic] of natural justice and procedural fairness that he was required by law to observe; the Adjudicator erred in law in making his decision; the Adjudicator based his decision on erroneous finding of fact which he made in a perverse and capricious manner and without regard for the material before him, and; the Adjudicator acted without jurisdiction by making a finding of just cause with respect to the Applicant’s suspension and further, the Adjudicator purported to find just cause when the Bank itself did not raise the issue of cause in the dismissal of the Applicant.
26. The Applicant would not object if the Respondent brought a motion for an extension of time for the filing of affidavits with respect to the Applicant’s Application for Judicial Review, should an extension be granted by this Honourable Court.
For the applicant it is urged that there is merit in the application for judicial review, that here the intent to seek such relief was known to the respondent from April 6, when solicitors for the parties discussed the matter by telephone, that even if that were not the case where there is no prejudice to the respondent and it is in the interests of justice that leave to proceed should be granted (Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (C.A.)). Where an intent to appeal a decision has not been abandoned, there is an arguable case and the respondent is not unduly prejudiced, an extension of time to perfect an appeal was allowed by the New Brunswick Court of Appeal in CUPE, Local 76 v. Campbellton (City of) (1983), 46 N.B.R. (2d) 83, and it is urged that principle should here apply. Moreover, in this case, no English version of the Adjudicator’s decision was available until April 2, and its length and complexity precluded initiation of the application within the time normally provided. Thus the applicant had sought an extension of time by application on April 21, though, it was averred, by inadvertence that was sought in the Court of Appeal. Finally, it was urged that an extension would create no prejudice to the respondent, that the applicant would suffer great prejudice if an extension were not granted, and in the interests of justice the applicant’s case should be dealt with on its merits, not on procedural grounds.
For the respondent it is urged that the two criteria for exercise of the Court’s discretion to extend the time are not here established. Those criteria are that there be a satisfactory explanation for the delay and that there be a reasonable chance of success in the application for which an extension of time is sought. It is urged that the applicant received the decision on March 17 when the decision in French reached the applicant’s solicitors, one of whom is said to be capable of reading and understanding French and the applicant himself is fluently bilingual, and in these circumstances inability to deal with the decision rendered in French is not a ground for delay. Nor is the alleged difficulty of dealing with the decision, 69 pages of which, in English, reviewed the evidence and facts found by the Adjudicator. That reason for delay is said not to provide satisfactory explanation, in light of jurisprudence that awaiting opportunity to assess reasons for a decision is not a satisfactory ground for delay. Moreover, in this case even after the conversation between counsel for the parties on April 6, no action was taken by the applicant until April 21, when an ex parte application was filed in the Court of Appeal without notice to the respondent, who learned of it only after the application was allowed, even though the applicant knew from the conversation of April 6 that the respondent would oppose any application for an extension of time. It was urged that the action of counsel for the applicant in filing the ex parte application, and in the wrong division of the Court, added to the applicant’s delay and that was done despite the comment by counsel for the respondent on April 6 that the Federal Court of Appeal was not the proper forum. It is urged that in all the circumstances here the applicant cannot satisfactorily explain or account for the whole period of the delay in seeking, in the proper forum, an extension of time (Montreal Flying Club Inc. v. Syndicat des employés de l’Aéro-club de Montréal (1975), 7 N.R. 177 (F.C.A.)).
The respondent also urges that the application and supporting affidavit seeking an extension of time do not provide an evidentiary basis on which the Court can conclude that the applicant has an arguable case. The only grounds suggested are those set out in paragraph 25 of the affidavit quoted earlier, and as there set out these, except for the last ground concerning jurisdiction, are merely repetitious of the general statutory grounds for judicial review under section 18.1 of the Federal Court Act.
The last of the grounds included in that paragraph, that “the Adjudicator acted without jurisdiction by making a finding of just cause … and … when the Bank itself did not raise the issue of cause in the dismissal of the Applicant” is said by the respondent to relate to the finding of the Adjudicator originally appointed, who withdrew after determining preliminary issues, a decision not questioned previously, though counsel for the applicant does not agree with that characterization of the issue and concedes that the decision on preliminary issues is here irrelevant. For my part, I do not understand how that ground for judicial review can be reasonably argued in the circumstances of this case where the Adjudicator appointed under section 242 of the Canada Labour Code is to adjudicate the complaint of the applicant under section 240 that he was unjustly dismissed, and he is required to consider whether the dismissal was unjust (under subsection 242(3)) unless the person who has complained has been laid off because of lack of work or the discontinuance of a function (subsection 242(3.1)). In the circumstances, the issue of just cause arises from the complaint, whether or not it was raised by the Bank, and the Adjudicator could not avoid addressing that issue, unless the circumstances set out in subsection 242(3.1) are established, which the adjudicator here found not to be the case.
Over the objections of counsel for the respondent, which I note, I invited counsel for the applicant, in replying to the respondent’s submissions, to elaborate on the grounds for judicial review here sought, giving counsel for the respondent an opportunity to respond to any elaboration. For the applicant, it was urged that there were internal inconsistencies in the decision of the Adjudicator, that some facts found in his review of the evidence were contrary to those relied upon in the reasons for his decision, though the details underlying this submission were not discussed. Counsel reiterated the grounds as set out in her affidavit, quoted above, and her belief as set out in paragraph 24 of her affidavit that she verily believes the applicant has a more than reasonable chance of success in an application for judicial review considered on its merits.
The Court had anticipated more reference to the specifics of the applicant’s case for judicial review. They were not forthcoming. In my view, this Court can hardly be persuaded that there is an arguable case merely by repeating the general grounds set out in subsection 18.1(4) of the Federal Court Act as a basis for its intervention. Some reference to the factual and legal basis for judicial review must be provided, which supports the view that there is a reasonable chance of success, in this particular instance. The general submission that the Adjudicator found certain facts inconsistent with those upon which he subsequently relied in his decision sheds little light on the merits of an application for judicial review.
I have noted there was no proposed originating motion or supporting affidavit filed with the application to extend time. The originating motion previously filed and struck out by order of Noël J., and the affidavit filed by the applicant with that application may indicate what is the basis for judicial review here sought. After argument, while decision was reserved, I took the unusual step of reviewing the affidavit of Luc LeBlanc filed in support of the originating notice of motion that was subsequently struck. I did this in order to ensure that I understood the factual basis for the grounds upon which judicial review might be sought, in so far as that could be surmised from the originating motion and affidavit previously filed, in order to satisfy myself that injustice not result if an extension of time were not granted. In that affidavit the applicant describes the circumstances of his differences with the respondent Bank, his complaint under section 240 of the Code, and the adjudication of that complaint. He avers that the proceedings before the Adjudicator were not transcribed. Several findings of fact of the Adjudicator, set out in his decision, are then said to be in error in light of testimony and documentary evidence before him, others are said not to be based on the evidence adduced at the hearing, and others are said to be based on inappropriate weight given to certain evidence.
It is not evident from reading the affidavit of Luc LeBlanc that the alleged errors in findings of fact can all be said to be made in a perverse or capricious manner or without regard to the evidence before the Adjudicator. Nor is it evident that any that might be so characterized were the basis of the Adjudicator’s decision, as would be required to be established if an application for judicial review, concerned with findings of fact, were to be successful (paragraph 18.1(4)(d), Federal Court Act). The only suggestion of an error in law by the Adjudicator set out in the affidavit of Luc LeBlanc, aside from the allegation that certain findings of fact were not based on evidence adduced at the hearing, concerns the conclusion of the Adjudicator summing up his decision in the form of an order dismissing the complaint, which as worded in relation to the alleged unjust dismissal is said to be a finding that was not within jurisdiction of the Adjudicator. I have already dealt with that issue as it concerns the Adjudicator’s jurisdiction but I add that read in the context of the portion of the decision which that conclusion sums up, i.e., the portion headed “Decision” in the English translation, it is not evident, at least on the face of the record, that the Adjudicator exceeded his jurisdiction.
While this Court, in considering an extension of time, must not weigh finally the merits of the applicant’s case, the jurisprudence is clear that it must be persuaded the applicant has a reasonable chance of success in an arguable case. Grewal, supra, upon which the applicant relies in part, is distinguishable from normal cases of this sort for there the reasonable chance of success was evident in light of subsequent clarification of Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985 Appendix II, No. 44]] rights by the Supreme Court of Canada and the tribunal’s decision was made by a process in conflict with the Charter rights so clarified. In Grewal, Mr. Justice Marceau, concurring with the majority but for reasons separately expressed, said at page 282:
The imposition of time limits to dispute the validity of a legal decision is of course meant to give effect to a basic idea of our legal thinking that, in the interest of society as a whole, litigation must come to an end (interest reipublicae ut sit finis litium), and the general principles adopted by the courts in dealing with applications to extend those limits were developed with that in mind. Only if the ultimate search for justice, in the circumstances of a case, appears to prevail over the necessity of setting the parties’ rights to rest will leave to appeal out of time be granted. Hence the requirement to consider various factors, such as the nature of the right involved in the proceedings, the remedy sought, the effect of the judgment rendered, the state of execution of that judgment, the prejudice to the other litigants in the dispute, the time lapsed since the rendering of the judgment, the reaction of the applicant to it, his reason for having failed to exercise his right of appeal sooner, the seriousness of his contentions against the validity of the judgment. It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay.
In this case the explanation for delay in seeking an extension of time essentially reveals some inept steps by counsel for the applicant in not making timely application which could have been done even after receipt of the decision in English. I note that the originating notice of motion ultimately filed May 28 alleged as grounds the statutory grounds set out in paragraph 18.1(4) of the Federal Court Act, a motion that could have been filed before April 17, or even May 1, with an affidavit in support. One or more supplementary affidavits might have been filed subsequently, as is often the case, to form part of the applicant’s record when the matter is heard. In this case, no step was taken by the applicant until April 21 when application was made to the Court of Appeal, for an extension of time, on an ex parte basis though counsel ought to have been aware that any application to extend the time would be opposed. Nevertheless, despite missteps by counsel, that would not be enough, in my view, to preclude the exercise of discretion in a case where the applicant establishes a basis for the Court to conclude, in the interests of justice between the parties, that there is a reasonable chance of success in an application for judicial review.
In this case, I am not persuaded that the applicant has established a reasonable chance of success if the application for judicial review were now to proceed. I come to this conclusion because the evidence provided with this application for judicial review, by affidavit of one of the applicant’s counsel, is not so persuasive. That evidence is said by counsel for the respondent to be all this Court should properly consider, and that is the basis of objection by counsel for the respondent to the Court’s invitation to counsel for the applicant to elaborate on the grounds for judicial review.
Further, having reviewed the affidavit of Luc LeBlanc filed with the originating motion subsequently struck, I am not persuaded that the applicant has a reasonable chance of success if an extension of time to commence proceedings for judicial review were now granted. I reach that conclusion bearing in mind judicial deference for the decision of an adjudicator appointed under section 242 of the Code in light of the privative clause in section 243 which makes the decision final and not subject to review, unless the reviewing court is persuaded that the adjudicator has clearly acted without jurisdiction by interpretation of the law or finding of facts in a patently unreasonable manner. (See, Canada Post Corp. v. Pollard, [1992] 2 F.C. 697 (T.D.); Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324.) In my view, Mr. LeBlanc’s affidavit does not set out grounds for such a finding.
While it is urged that an extension of time will serve the interests of justice, that is urged to provide for the applicant’s case to be heard. The respondent urges that the case has already been heard in detail through hearings of the Adjudicator. At best, it seems to me the applicant may have an arguable case, which at this stage seems unlikely to be successful. That provides no basis for the Court here to exercise discretion and grant an extension of time. If it were otherwise, the time limited for commencing judicial review under the statute would be meaningless.
In these circumstances, this Court declines to exercise discretion to extend the time for filing an application for judicial review, and thus the application was dismissed by order. At the hearing counsel addressed the matter of costs and the order issued awards costs, as asked, to the respondent.