McKinney v. Canada (Solicitor General)

McKinney v. Canada (Solicitor General)
Court (s) Database
Federal Court Decisions
Date
2002-08-12
Neutral citation
2002 FCT 933
File numbers
T-898-02
Decision Content
Docket: T-898-02
Neutral citation: 2002 FCT 933
BETWEEN:
CHRISTINE MCKINNEY
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
Let the attached certified transcript of my Reasons for Order delivered orally from the Bench at Edmonton, Alberta on the 6th day of August, 2002, now edited, be filed to comply with section 51 of the Federal Court Act.
"Eleanor R. Dawson"
Judge
Vancouver, British Columbia
August 12, 2002
IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION
____________________________________
Court Number T-898-02
BETWEEN:
CHRISTINE McKINNEY
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
______________________________________________
DECISION
August 6, 2002
Held at the Federal Court of Canada
Edmonton, Alberta
Volume 1
_______________________________________________
TAKEN BEFORE:
The Honourable Madam Justice Eleanor R. Dawson
APPEARANCES
TAKEN BEFORE:
02
03
03
04 The Honourable Madam Justice Eleanor R. Dawson
04
05
05 --------------------------------------
06
06
07 On Her Own Behalf Appeared for the Applicant
07
08 R. Nichwolodoff, Esq. Appeared for the Respondent
08
09
09 --------------------------------------
10
10
11 Chantal St. Jean Court Registrar
11
12 Susan J. Hedberg, CSR(A), RPR Realtime Reporter
12
13
13 * * * * * * * * * * * * * * *
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0003
01 (PROCEEDINGS RESUMED AT 9:45 A.M.)
02 THE REGISTRAR: Court is now resumed.
03 THE COURT: Having taken time to review the
04 materials filed in support of this motion and having
05 heard the submissions of the applicant and counsel
06 for the respondent, I am now prepared to render my
07 decision and reasons for that decision.
08 On this motion, the applicant
09 seeks leave for the late filing of her affidavit
10 evidence in support of the application for judicial
11 review which she has filed.
12 As has been written on a number
13 of occasions, the time requirement set by the Federal
14 Court Rules are not merely deadlines to be attempted
15 to be met; they are Rules to be observed.
16 Where an affidavit in support
17 of an application for judicial review is not filed on
18 time and an extension of time for the filing of the
19 affidavit is sought, the Court has established
20 criteria which are to be met by an applicant.
21 The Court is to consider the
22 reasons for the delay in filing the affidavit
23 evidence and to consider whether the proposed
24 affidavit evidence contains evidence which is
25 relevant and admissible. Put another way, the Court
26 balances the length of delay against the intrinsic
01 worth of the proposed affidavit. As authority for
02 this see -- and I will spell the case name --
03 S-t-r-y-k-i-w-s-k-y v. Stony Mountain Institution
04 [2000] F.C.J. No. 1404 at paragraph 7 and 8. See
05 also Canadian Parks and Wilderness Society v. Canada
06 (Minister of the Environment) [1994] F.C.J. No. 603
07 at paragraph 13.
08 In the present case, the
09 applicant has neither put the proposed affidavit
10 before the Court nor advised in any detail as to what
11 that evidence will be. In consequence, the Court is
12 unable to consider the intrinsic worth of the
13 affidavit. The applicant, Ms. McKinney, advises and
14 swears in her affidavit that the affidavit which she
15 proposes to file is now prepared and can be filed
16 within the week.
17 The respondent seeks the
18 dismissal of this motion or, in the alternative, asks
19 that the motion be adjourned until cross-examination
20 of Ms. McKinney on her affidavit in support of the
21 motion for an extension can be arranged and
22 completed.
23 In the result, my order is as
24 follows: This motion is adjourned to the general
25 sittings of this court to take place on October 7th,
26 2002, at 9:30 a.m. in Edmonton on the following
01 conditions: First, Ms. McKinney will serve and file
02 on or before Friday, August 9th, an affidavit which
03 identifies and attaches all of the proposed
04 affidavits and the exhibits which she wishes to file
05 in support of her application for judicial review. I
06 would encourage her to serve and file this material
07 as soon as possible.
08 The second condition is that
09 Ms. McKinney will make herself available within the
10 next four weeks at a date, time, and place convenient
11 to counsel for the respondent and Ms. McKinney so
12 that she may be cross-examined on her affidavit in
13 support of the motion for an extension of time.
14 The costs of this appearance
15 are to be dealt with by the judge who hears and
16 determines the motion for an extension of time.
17 Does either party have any
18 question?
19 MR. NICHWOLODOFF: No, Madam Justice.
20 MS. McKINNEY: I have none.
21 THE COURT: You understand this order?
22 MS. McKINNEY: Correct. To have that filed
23 and served by August 9th.
24 THE COURT: That's right.
25 MS. McKINNEY: And to make myself available
26 for cross-examination.
01 THE COURT: Within the month.
02 And you should make that
03 arrangement directly with counsel for the
04 respondent.
05 MS. McKINNEY: Okay.
06 THE COURT: I would encourage you to not
07 leave this until the last minute so that you make
08 sure you meet this filing deadline before the
09 registry closes on Friday.
10 MS. McKINNEY: Okay.
11 THE COURT: All right. Then this matter is
12 concluded. Thank you.
13 MS. McKINNEY: Thank you.
14 (PROCEEDINGS CONCLUDED AT 9:57 A.M.)
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16 * * * * * * * * * * * * * * *
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0001
01
01
02 IN THE FEDERAL COURT OF CANADA
02 TRIAL DIVISION
03
03 ____________________________________
04 Court Number T-898-02
04
05
05 BETWEEN:
06
06
07 CHRISTINE McKINNEY
07
08 Applicant
08
09 - and -
09
10
10 THE SOLICITOR GENERAL OF CANADA
11
11 Respondent
12
12
13
13
14
14 ______________________________________________
15
15
16 DECISION
16
17 August 6, 2002
17
18 Held at the Federal Court of Canada
18 Edmonton, Alberta
19
19 Volume 1
20
20 _______________________________________________
21
21
22
22
23
23
24
24
25 TAKEN BEFORE:
25
26 The Honourable Madam Justice Eleanor R. Dawson
26
0002
01 APPEARANCES
01
02 TAKEN BEFORE:
02
03
03
04 The Honourable Madam Justice Eleanor R. Dawson
04
05
05 --------------------------------------
06
06
07 On Her Own Behalf Appeared for the Applicant
07
08 R. Nichwolodoff, Esq. Appeared for the Respondent
08
09
09 --------------------------------------
10
10
11 Chantal St. Jean Court Registrar
11
12 Susan J. Hedberg, CSR(A), RPR Realtime Reporter
12
13
13 * * * * * * * * * * * * * * *
14
15
16
17
18
19
20
21
22
23
24
25
26
0003
01 (PROCEEDINGS RESUMED AT 9:45 A.M.)
02 THE REGISTRAR: Court is now resumed.
03 THE COURT: Having taken time to review the
04 materials filed in support of this motion and having
05 heard the submissions of the applicant and counsel
06 for the respondent, I am now prepared to render my
07 decision and reasons for that decision.
08 On this motion, the applicant
09 seeks leave for the late filing of her affidavit
10 evidence in support of the application for judicial
11 review which she has filed.
12 As has been written on a number
13 of occasions, the time requirement set by the Federal
14 Court Rules are not merely deadlines to be attempted
15 to be met; they are Rules to be observed.
16 Where an affidavit in support
17 of an application for judicial review is not filed on
18 time and an extension of time for the filing of the
19 affidavit is sought, the Court has established
20 criteria which are to be met by an applicant.
21 The Court is to consider the
22 reasons for the delay in filing the affidavit
23 evidence and to consider whether the proposed
24 affidavit evidence contains evidence which is
25 relevant and admissible. Put another way, the Court
26 balances the length of delay against the intrinsic
0004
01 worth of the proposed affidavit. As authority for
02 this see -- and I will spell the case name --
03 S-t-r-y-k-i-w-s-k-y v. Stony Mountain Institution
04 [2000] F.C.J. No. 1404 at paragraph 7 and 8. See
05 also Canadian Parks and Wilderness Society v. Canada
06 (Minister of the Environment) [1994] F.C.J. No. 603
07 at paragraph 13.
08 In the present case, the
09 applicant has neither put the proposed affidavit
10 before the Court nor advised in any detail as to what
11 that evidence will be. In consequence, the Court is
12 unable to consider the intrinsic worth of the
13 affidavit. The applicant, Ms. McKinney, advises and
14 swears in her affidavit that the affidavit which she
15 proposes to file is now prepared and can be filed
16 within the week.
17 The respondent seeks the
18 dismissal of this motion or, in the alternative, asks
19 that the motion be adjourned until cross-examination
20 of Ms. McKinney on her affidavit in support of the
21 motion for an extension can be arranged and
22 completed.
23 In the result, my order is as
24 follows: This motion is adjourned to the general
25 sittings of this court to take place on October 7th,
26 2002, at 9:30 a.m. in Edmonton on the following
0005
01 conditions: First, Ms. McKinney will serve and file
02 on or before Friday, August 9th, an affidavit which
03 identifies and attaches all of the proposed
04 affidavits and the exhibits which she wishes to file
05 in support of her application for judicial review. I
06 would encourage her to serve and file this material
07 as soon as possible.
08 The second condition is that
09 Ms. McKinney will make herself available within the
10 next four weeks at a date, time, and place convenient
11 to counsel for the respondent and Ms. McKinney so
12 that she may be cross-examined on her affidavit in
13 support of the motion for an extension of time.
14 The costs of this appearance
15 are to be dealt with by the judge who hears and
16 determines the motion for an extension of time.
17 Does either party have any
18 question?
19 MR. NICHWOLODOFF: No, Madam Justice.
20 MS. McKINNEY: I have none.
21 THE COURT: You understand this order?
22 MS. McKINNEY: Correct. To have that filed
23 and served by August 9th.
24 THE COURT: That's right.
25 MS. McKINNEY: And to make myself available
26 for cross-examination.
0006
01 THE COURT: Within the month.
02 And you should make that
03 arrangement directly with counsel for the
04 respondent.
05 MS. McKINNEY: Okay.
06 THE COURT: I would encourage you to not
07 leave this until the last minute so that you make
08 sure you meet this filing deadline before the
09 registry closes on Friday.
10 MS. McKINNEY: Okay.
11 THE COURT: All right. Then this matter is
12 concluded. Thank you.
13 MS. McKINNEY: Thank you.
14 (PROCEEDINGS CONCLUDED AT 9:57 A.M.)
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