T-2950-76
Chinoin Gyogyszer es Vegyeszeti Termekek
Gyara R.T. (Applicant)
v.
Deputy Attorney General of Canada (Respondent)
Before The Honourable Mr. Justice Addy of the
Federal Court of Canada as persona designata
under section 2 of the Postal Services Interruption
Relief Act—Ottawa, November 25 and December
15, 1976.
Patents — Practice — Application for extension of time for
filing patent application — Application made pursuant to
Rule 324, respondent having consented to order Fiduciary
role of Deputy Attorney General in such matters — Whether
Rule 324 applies to judge sitting as `persona designata" —
When application deemed to be made — Postal Services
Interruption Relief Act, R.S.C. 1970, c. P-15, ss. 2 and 3 —
Federal Court Rule 324.
Applicant is seeking an extension of time for the filing of a
foreign patent on the grounds that a postal strike in Canada
caused the application to be delayed in the mails. The applica
tion was originally presented pursuant to Rule 324 without
personal appearance, the Deputy Attorney General of Canada
having consented in writing to the granting of the order.
Held, the application is dismissed. Although the delay in
applying to file the foreign patent was caused by an interrup
tion of postal services, the application to the Court was not
made "without undue delay" as provided for in section 3(c) of
the Postal Services Interruption Relief Act. In any event,
neither Rule 324 nor the practice mentioned therein applies to
judges acting as persona designata unless the statute so pro
vides; the manner in which the matter may be dealt with is thus
a question of procedure involving the exercise of judicial
discretion.
Knapsack Actiengesellschaft v. Deputy Attorney General
of Canada [1968] 2 Ex.C.R. 59, applied.
APPLICATION.
COUNSEL:
N. Fyfe for applicant.
L. Holland for respondent.
SOLICITORS:
Smart & Biggar, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
ADDY J.: The applicant is seeking an extension
of time for the filing in Canada under the Patent
Act' of a foreign patent application originally filed
in Hungary, on the ground that a postal strike in
Canada caused the application to be delayed in the
mails beyond the last day for filing.
The application to this Court is made pursuant
to section 3 of the Postal Services Interruption
Relief Act 2 and was originally presented pursuant
to Rule 324 without personal appearance, the
Deputy Attorney General for Canada having con
sented in writing to the granting of the order.
On examining the material filed in support of
the motion, I found it to be deficient and endorsed
the notice of motion as follows:
Although the material filed states that there was an interrup
tion of normal postal services which commenced on the 21st of
October 1975, the material is silent as to the nature of the
interruption (i.e. areas affected and its duration and extent).
It must have been evident that application was late when
received and filed on 3rd December 1975. Yet present applica
tion was filed nearly 11 months later, namely on 10 Nov. 1976.
I would like to hear argument as to why relief should not be
refused, in view of section 3(c) of the Postal Service Interrup
tion Act.
Counsel for both parties are to be requested to appear before
me for oral hearing of this matter on Thursday 25 Nov. 1976 at
10:30 A.M. in Ottawa.
Subsequently the matter came before me for
oral hearing on the 25th of November. At that
time, counsel for the respondent was informed that
it was quite improper for the solicitor, acting on
behalf of the Attorney General for Canada, to
have consented to the granting of the order as the
material was patently deficient on the face of it.
An application of this nature is quite different
from a mere inter partes issue. The respondent
herein has no direct interest as a party in the
outcome of the proceeding but is made a party in
order to protect the interests of the public at large
and more particularly of any undisclosed and
' R.S.C. 1970, c. P-4.
2 R.S.C. 1970, e. P-15.
unknown persons who might ultimately have a
direct and very real and tangible interest in the
ultimate disposition of the application. Where a
person is a party in a fiduciary or quasi-fiduciary
capacity such as in the case before me, there exists
a very strict and solemn duty on that person to
ensure that all the provisions of the law are
enforced or at least brought to the attention of the
Court. Any person who is sui juris is quite free to
be as indifferent or as careless as he wishes in
dealing with his own rights, but it is trite to say
that such a course of conduct is not open to a
person acting as a protector and guardian of the
rights of others.
Where the solicitor for the Attorney General
merely consents to the order, without examining
the material, not only is he derelict in his duty to
the public but to the Court itself as one of its
officers. Unlike ex parte applications where the
Court will in fact carefully scrutinize the material
with the merits of the case and the interest of the
absent respondent carefully in mind, where a
matter is consented to by a party who is supposed
to represent adverse interests, there is an express
representation made to the Court by that party
that there exists no objection in law or on the
merits to the granting of the order.
Pursuant to my request, two additional affida
vits were subsequently filed. One dealt with the
duration, nature and extent of the strike and the
applicant has now satisfied me by that affidavit
that the delay was in fact caused by an interrup
tion of postal services.
The second issue is whether the application to
this Court "was made without undue delay," as
provided for in section 3(c) of the Postal Services
Interruption Relief Act. The last day for filing the
application in our Patent Office was the 23rd of
October 1975. It was received by mail by the
applicant's Ottawa agents on the 3rd of December
1975 and was filed in the Patent Office on the
same day. An originating notice of motion, without
any return date indicated on it, was filed with the
Court together with supporting material on the
29th of July 1976. On the 10th of November 1976,
an application in writing to have the matter heard
pursuant to Rule 324 was made. I heard the
matter orally on the 25th of November.
I granted special leave to file the second affida
vit after the oral hearing. The affidavit which
deals with justification of the delay in applying to
the Court contains the following chronology of
events.
4th of December, 1975—Ottawa agents write to
request whether Hungarian principals wanted
action taken pursuant to Postal Services Inter
ruption Relief Act;
30th of December, 1975—pursuant to instruc
tions received, Ottawa agents advise Hungarian
principals by letter of steps required to obtain
relief;
31st of March, 1976—cable from Hungary
authorizing proceedings;
13th of May, 1976—draft affidavit sent to Ilun-
garian principals for signature;
2nd of July, 1976—letter from Hungary return
ing affidavit duly signed;
29th of July, 1976—originating notice of motion
and supporting material filed in Court and
served on Deputy Attorney General together
with letter requesting whether Department of
Justice would consent to the order;
27th of September, 1976 letter from Depart
ment of Justice indicating that it would consent
to the order and requesting draft order;
18th of October, 1976—consent and draft order
sent to the Department of Justice;
22nd of October, 1976—executed consent and
draft order returned by Department of Justice;
2nd of November, 1976—letter to Court filing
the consent and draft order and requesting that
the application be dealt with pursuant to Rule
324.
The first question to be determined is the date
when the application was actually made.
A judge hearing an application under the Postal
Services Interruption Relief Act does so as per
sona designata. A reading of both sections 2 and 3
cf the Act makes this apparent. The matter has
also been specifically decided by Jackett J., as he
then was, in the case of Knapsack Actiengesell-
schaft v. The Deputy Attorney General of
Canada'.
Whether a judge is sitting as a member of a
court or as persona designata an application is not
made to that judge or to the Court in the event of
an application to the Court, at the time of filing a
notice of motion and supporting material in the
Court Registry. The application in the case of an
oral hearing is made at the time of hearing. The
notice of motion is merely a notice of the time
when the application will be made. In such a case,
since the date of the application is the date of
hearing or, in other words, of the return of the
motion and not the date of filing, a fortiori the
filing of a notice of motion which does not contain
any return date whatsoever is never to be con
sidered as the date of the application. Therefore,
the filing of the notice of motion with supporting
material on the 28th of July 1976 is not the date of
application.
In the case of an application without oral hear
ing under Rule 324, the date of application would
normally be the date on which the Court finally
receives all of the required material from the
applicant and from all persons opposing the
application or, in the case of consent matters when
the consent is also received or, where the other
parties interested have neither consented nor for
warded any representations opposing the applica
tion, after such time as the Court might have
considered reasonable for interested parties to
have made their representations either orally or in
writing.
In the present case, the application under Rule
324 with the consent having been filed on the 2nd
of November 1976, this last-mentioned date would
be considered the date of application if such an
application were authorized under the Rule in the
circumstances.
However, although the question was never
raised at the hearing before me and notwithstand
ing that applications of this nature have in the past
been regularly disposed of under Rule 324, I find
that the Rule does not apply to cases where a
judge of the Federal Court is acting as persona
designata under a statute, unless of course the
statute so provides. There is nothing whatsoever in
3 [1968] 2 Ex.C.R. 59.
the Rule to state this. The Rule is contained in
Part III of the Rules which is entitled "General
Rules Applicable to Proceedings in Court". This,
of course, does not mean "proceedings before a
judge as persona designata." Furthermore, the
Rules, as a whole, are rules for the Trial Division
and Appellate Division of the Court and there is
no provision that the Rules or any part of them
should apply to a judge acting as persona
designata.
Where, as in most cases, the statute naming the
judge is silent as to procedure, or where a contrary
procedure is not provided for in the statute, it
would be logical to assume that in addition to
practice and procedure traditionally adopted by
judges and tribunals being applicable, by analogy
the general rules of practice of the Court of which
the judge forms a part would be a useful guide as
to the practice to be adopted and the form and
contents of documents. However, a procedure by
way of a written application without personal
appearance is an extraordinary procedure peculiar
to this Court and to the few other jurisdictions
which might have adopted it in very recent years
and is by no means a proceeding which has
attained the character of being a general custom
among tribunals and judges. On the contrary, the
general rule or custom is that an application to any
person acting in a judicial capacity especially
where other parties are entitled to be heard, is to
be made in the physical presence of that person.
I therefore conclude that neither Rule 324 nor
the practice mentioned therein applies to judges
acting as persona designata unless, of course, the
statute so provides. In deciding this, however, I
wish to make it clear that I am not saying in any
way that a judge to whom an application is made
is precluded, when circumstances justify it, from
deciding that the matter be dealt with in writing
and without personal appearance of any of the
parties if he should deem it advisable to do so. It is
therefore not a matter of general practice as such,
but a question of procedure which may be made
the object of judicial discretion in any particular
case.
It follows, from the above, that the application
was made on the date when I heard the matter,
namely on the 25th of November 1976.
As to what constitutes undue delay, having
regard to the recent decision of my brother Walsh
J. in the case of Alexander v. The Deputy Attor
ney General of Canada 4 , I have no difficulty in
finding that the delay of nearly one year very
clearly constitutes undue delay. I would go consid
erably further and state that a delay in any way
approaching this length of time would almost in
evitably constitute undue delay unless there were
very extraordinary circumstances justifying it. In
so doing, I am not unaware of other findings in
some cases in recent years where relief was grant
ed without explanation being given for the delay
and where the delay varied from six to twelve
months. I wish to point out, however, that these
were all motions under Rule 324 and were granted
on the consent of a solicitor acting on behalf of the
Deputy Attorney General. My views on this have
been sufficiently expressed earlier in these present
reasons.
Altogether apart from the question of the time
which elapsed from the date on which the applica
tion for patent was received in Ottawa (the 3rd of
December 1975) and the date when the applica
tion was made to me for relief (the 25th of
November 1976), I would have found that, stand
ing by itself, the delay between the 13th of March
1976, when the affidavit was sent to Hungary for
signature, and the 2nd of July 1976, when a letter
was addressed to Ottawa agents returning the
affidavit, namely a period of some three-and-a-
half months, constitutes undue delay, since no
reasonable explanation was given as to why the
delay occurred.
The application is therefore dismissed and the
relief requested will be denied.
I am also ordering that the style of cause be
amended by ,deleting the words "The Federal
Court of Canada Trial Division" and by sub
stituting "Before The Honourable Mr. Justice
Addy of the Federal Court of Canada as persona
designata under section 2 of the Postal Services
Interruption Relief Act, R.S.C. 1970, Chapter
P-15."
4 [1977] 1 F.C. 737.
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.