Federal Court of Appeal - Neis v. Baksa

[1] This is an appeal from an order of Dawson J. dated July 24, 2001, wherein she dismissed an application for an extension of time to file an application for judicial review by Dwight Neis (the appellant). The appellant sought an extension of time to file an application for judicial review of a labour adjudicator's decision, wherein the adjudicator awarded damages for wrongful dismissal to Shane Baksa (the respondent) as against "Dwight Neis, carrying on business as Brookside Transport."

[2] Subsection 18.1(2) of the Federal Court Act provides that an application for judicial review shall be brought within 30 days of the date within which the decision is communicated to the parties. This limitation may be extended by the Court, upon motion, in appropriate circumstances. The analysis to be followed in motions for extension of time is that found in Grewal v. M.E.I., [1985] 2 F.C. 263 (FCA), and stated in Canada (A.G.) v. Henelly, [1999] 244 N.R. 399 (FCA). Those cases set out the four criteria necessary to establish that an extension of time is warranted. They are as follows: a continuing intention to pursue the application; the matter discloses an arguable case; there is no prejudice to the respondent in allowing the extension; and there is a reasonable explanation for the delay. As noted in Grewal, supra, the underlying consideration must be whether the denial or grant of an extension must do justice between the parties.

[3] We are not persuaded that Dawson J. committed any reviewable errors. She correctly enumerated the relevant factors to be considered, and applied the evidence to each factor. She found the evidence lacking in many respects. The appellant failed to demonstrate the date at which he had been notified of the decision, and failed to adduce evidence in support of his position that he had an arguable case. The appellant offered no explanation for the delay between receiving notice of the Writ of Seizure and Sale and his application on May 30, 2001.

Dawson J. gave sufficient weight to all the relevant circumstances, and we agree with her order based on the facts presented.

[4] The appeal will be dismissed with costs in the amount of $2,000.00 inclusive of disbursements.

"Brian D. Malone"

J.A.

FEDERAL COURT OF CANADA

FEDERAL COURT OF APPEAL

Date: 20020529

Docket: A-465-01

BETWEEN:

DWIGHT NEIS

Appellant

- and -

SHANE MICHAEL BAKSA

Respondent

REASONS FOR JUDGMENT

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-465-01

STYLE OF CAUSE: DWIGHT NEIS v. SHANE MICAHEL BAKSA

PLACE OF HEARING: Calgary, Alberta

DATE OF HEARING: May 29, 2002

REASONS FOR JUDGMENT

Delivered from the Bench: MALONE, J.A.

DATED: May 29, 2002

APPEARANCES:

Mr. Steve J. MacNeil FOR THE APPELLANT

Ms. Susan F. Robertson FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ho MacNeil Jenuth

Calgary, Alberta FOR THE APPELLANT

Ms. Susan F. Robertson

Brooks, Alberta FOR THE RESPONDENT