PRACTICE |
Affidavits |
Schwartz Hospitality Group v. Canada (Attorney General)
T-137-02
2002 FCT 961, Campbell J.
11/9/02
4 pp.
Appeal from Prothonotary's findings respecting late filing of two affidavits--Appeal granted, time extended for filing of both affidavits--Standard of review: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)--Prothonotary correctly cited test for extensions of time to file affidavits (Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 37 F.T.R. 199 (F.C.T.D.)); reason for delay must be "valid" (Mapei Inc. v. Flextile Ltd. (1995), 59 C.P.R. (3d) 211 (F.C.T.D.))-- However, regarding first affidavit, Prothonotary erred in law in interpreting "valid" to mean "effective and valid" and "substantial"--Raised bar too high--On considering question of late filing of first affidavit de novo, uncontested statement that applicant "attempting to discuss negotiated resolution, without success" considered valid reason for delay-- Regarding second affidavit exhibiting post-decision evidence that decision under review made in "bad faith", Prothonotary erred in law in deciding that since affidavit not before decision-maker at time decision made, affidavit irrelevant-- Post-decision evidence can be very relevant to argument of "bad faith" or "bias"--On considering question de novo, affidavit relevant and reason for delay in filing valid.