T-1622-91
Frantz Etienne (Plaintiff)
v .
Her Majesty the Queen and The Minister of
National Defence (Defendants)
and
The Commissioner of Official Languages of
Canada (Mis en cause)
INDEXED AS: ETIENNE V. CANADA (T.D.)
Trial Division, Teitelbaum J.—Montréal, September
16; Ottawa. September 23, 1992.
Practice — Judgments and orders — Reversal or variation
— Motion pursuant to Federal Court Rules, RR. 303 and 1733
(matter subsequently discovered), to amend and set aside order
rejecting application for extension of time to apply to Federal
Court under Official Languages Act, s. 77 in relation to com
plaint investigated by Commissioner of Official Languages —
Order already under appeal before Appeal Division — Motion
dismissed — Not case where order not in conformity with rea
sons for order — Therefore, no jurisdiction in Court to amend
or vary order as matter now before Appeal Division —
Improper to do so — R. 303 (amendment of any document) not
applicable.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 303, 337(5),
1733.
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s.
77.
CASES JUDICIALLY CONSIDERED
APPLIED:
Flexi-Coil Ltd v. Smith-Roles Ltd. et al. (1985), 4 C.P.R.
(3d) 174 (F.C.T.D.); Henry v. Canada, T-1529-85, Rou-
leau J., judgment dated 29/3/89, F.C.T.D., not reported.
DISTINGUISHED:
Metaxas et al. v. Ship "Galaxias" (No. 3) (1988), 24
F.T.R. 241 (F.C.T.D.).
REFERRED TO:
Metaxas v. Galaxias (The), [1989] 1 F.C. 386; (1988), 19
F.T.R. 108 (T.D.).
MOTION pursuant to Rules 303 and 1733 of the
Federal Court Rules, on ground of matters subse
quently discovered, to amend and set aside an order
of this Court (T-1622-91, dated 19/5/92, not yet
reported) rejecting an application for extension of
time to file an application in the Federal Court under
section 77 of the Official Languages Act in relation to
a complaint investigated by the Commissioner of
Official Languages. Motion dismissed.
COUNSEL:
Peter B. Annis for plaintiff and mis en cause.
Carole Johnson for defendants.
SOLICITORS:
Scott & Aylen, Ottawa, for plaintiff and mis en
cause.
Deputy Attorney General of Canada for defend
ants.
The following are the reasons for order rendered in
English by
TErrELBAUM J: On June 21, 1991, the plaintiff filed
in the Federal Court Registry in Montréal a notice of
motion pursuant to section 77 of the Official Lan
guages Act, R.S.C., 1985 (4th Supp.), c. 31 in which
he requests, among other requests:
[TRANSLATION] The application also seeks an extension of the
usual deadline for filing an action in this Honourable Court
pursuant to section 77(2) of the Act.
On May 19, 1992 [T-1622-91, F.C.T.D., not yet
reported], I refused the application.
On June 15, 1992, the plaintiff appealed my May
19, 1992 decision to the Federal Court of Canada,
Appeal Division.
On the day following the filing of the notice of
appeal, June 16, 1992, the plaintiff filed a motion to
amend and to set aside judgment due to matters sub
sequently discovered. This application, according to
the motion to amend, is made pursuant to Rules 303
and 1733 of the Federal Court Rules [C.R.C., c. 663]
which state:
Amendment of any Document
Rule 303. (1) For the purpose of determining the real question
in controversy, or of correcting any defect or error, the Court
may, at any stage of a proceeding, and after giving all inter
ested parties an opportunity to be heard, order any document in
the matter to be amended on such terms as seem just, and in
such manner as it may direct.
(2) This Rule does not apply to a judgment or order.
Setting Aside Judgments for New Matter or Fraud
Rule 1733. A party entitled to maintain an action for the rever
sal or variation of a judgment or order upon the ground of mat
ter arising subsequent to the making thereof or subsequently
discovered, or to impeach a judgment or order on the ground
of fraud, may make an application in the action or other pro
ceeding in which such judgment or order was delivered or
made for the relief claimed.
With respect to counsel for the plaintiff, at the time
of filing the notice of motion, Rule 303 does not
appear to be applicable with the facts of this case.
What plaintiff now requests is an amendment or vari
ance of my order of May 19, 1992.
The motion is for leave to file an amended affidavit and to set
aside the judgment of Mr. Justice Teitelbaum, dated May 19th,
1992, on the grounds of matters subsequently discovered.
In the plaintiff's original application of April 22,
1992, he states in his affidavit that he had filed a
complaint with the Official Languages Commission
on February 21, 1990 and that he received, on or
about March 23, 1991 the results of the investigation
arising out of his complaint.
Pursuant to section 77 of the Act, the applicant
[plaintiff] had 60 days to commence proceedings, if
he wished to, from the date he received the report
which the plaintiff stated to be [TRANSLATION] "on or
about March 23, 1991".
The plaintiff did not commence proceedings within
the time stipulated in section 77 of the Act. As his
reason, he stated:
[TRANSLATION] I thought that the time for bringing proceedings
only ran during working days and that it expired on June 21,
1991.
As I have stated, I dismissed this April 22, 1992
application as I found that even if the above was cor
rect, that is the [TRANSLATION] "working days" reason,
the plaintiff was outside the 60-day delay stipulated
and no other reason was alleged for the late filing of
the claim.
With the filing of the present application, the plain
tiff filed the affidavits of Jean Guy Patenaude dated
May 27, 1992, the plaintiff's affidavit of June 15,
1992 and the affidavit of Mark G. Peacock, an attor
ney, who had represented the plaintiff before me on
the original application filed by the applicant [plain-
tiff]. The plaintiff is now represented by another
attorney.
By reading the three affidavits, it is clearly appar
ent that the plaintiff could not have received the
Commission's report on March 23, 1991 as the plain
tiff had first stated but received the report either
between the dates of April 4 and April 23, 1991 or on
April 22 or May 23, 1991.
According to the plaintiff, this information was
subsequently discovered.
As a result of this "discovery", the plaintiff now
seeks leave to vary the decision given on May 19,
1992 on the basis of a subsequently discovered mat
ter pursuant to Rule 1733 of the Federal Court Rules.
There are two issues put before the Court and I
could state it no better than counsel for the plaintiff
did in his memorandum of points of argument:
Whether the Court may entertain a motion pursuant to Rule
1733 for the variation of a judgment on the grounds of a subse
quently discovered matter when the party has appealed the
judgment sought to be varied.
Whether this is an appropriate case for an Order to vary pursu
ant to Rule 1733.
JURISDICTION
Counsel for the plaintiff makes the following sub
mission. Counsel submits that it is in the interests of
justice to allow the application regardless of whether
an appeal has been taken from the order sought to be
varied. He submits the case of Metaxas et al. v. Ship
"Galaxias" (No. 3) (1988), 24 F.T.R. 241 (F.C.T.D.),
at page 242 for the above, principle. Counsel also sub
mits that Rule 1733 was intended to modify the nor
mal rules concerning functus officio. He further states
that , there is nothing on the face of Rule 1733 that
suggests its (Rule 1733) effect is to be limited by one
party filing an appeal to the order.
In his memorandum, counsel further states:
Moreover, a restrictive interpretation of Rule 1733 unnecessa
rily encumbers the rule. Rule 1733 was intended to moderate
the functus rule to avoid wasting the Court's time and to see
that justice was done where the facts militate against an unnec
essary appeal.
It is furthermore submitted that it would be unfair to impose a
requirement not permitting orders to vary in the face of
appeals. One party could preclude the other from bringing a
motion pursuant to Rule 1733 merely by appealing the deci
sion.
In the alternative, it is submitted that mere procedural matters
should not be allowed to interfere with the goal of seeing that
justice is done by permitting the Applicant to fully argue the
motion to vary. Any potential inconsistencies between an
Order under Rule 1733 and an appeal of the judgment sought
to be varied may be avoided were the Court to hear the motion
on its merits and to provide counsel with at least a preliminary
indication of its conclusions. Thereafter the Applicant could
take the necessary steps to discontinue the appeal prior to an
Order varying judgment to avoid any possible inconsistent
results.
DISCUSSION
In the case of Metaxas v. Galaxias (The), Mr. Jus
tice Rouleau, in a decision reported at [1989] 1 F.C.
386 (T.D.) considered the validity of the claims
(there were numerous claims to the proceeds of the
sale of the ship) and ranked the claims in order of
priority. Thereafter, one of the claimants applied,
while the matter was before the Appeal Division, to
amend the Court's order, arguing that the order did
not accord with the reasons given therefore.
In the case of Metaxas, the application to amend
was brought pursuant to Rule 337(5) which, as Mr.
Justice Rouleau states on page 242:
... permits the court to make an amendment to an order or
judgment if it does not accord with the reasons given therefor.
Rule 337(5) states:
Judgments and Orders
Rule 337... .
(5)W ithin 10 days of the pronouncement of judgment under
paragraph (2)(a), or such further time as the Court may allow,
either before or after the expiration of that time, either party
may move the Court, as constituted at the time of the pro
nouncement, to reconsider the terms of the pronouncement, on
one or both of the following grounds, and no others:
(a) that the pronouncement does not accord with the reasons,
if any, that may have been given therefor;
(b) that some matter that should have been dealt with has
been overlooked or accidentally omitted.
Mr. Justice Rouleau goes on to state, on page 242:
I am mindful of the jurisprudence cited by the parties oppos
ing this motion to the effect that once an order has been
appealed, no amendment thereof should be made, e.g., Flexi-
Coil Ltd. v. Smith-Roles Ltd. et al. (1985), 4 C.P.R. (3d) 174,
Apotex Inc. v. Canada (Attorney General and Minister of
National Health and Welfare) (No. 5) (1986), 3 F.T.R. 239
(Fed. T.D.).
These latter decisions question the propriety of a trial judge
amending a judgment which has already been appealed to the
Court of Appeal. I appreciate the thrust of the two cited deci
sions, but in my view where an order of this court does not
reflect the intent of the written reasons therefor due to an over
sight or omission, it is in the interests of justice that the order
be amended to reflect the decision of the presiding judge.
In my view, it is imperative that the April 11, 1988 judg
ment be amended to reflect this provision. It is in the interests
of all parties concerned that the decision under appeal be a true
reflection of the court's decision.
In speaking of a second amendment request, Mr.
Justice Rouleau states, on page 242:
The second amendment to the April 11, 1988 judgment pro
posed by counsel for Baseline Industries Ltd., is that provision
should be made for the possibility that N.A.T. might fail to
provide the Deletion Certificate and that hence the remaining
funds would be held indefinitely by the court. Counsel sug
gests that my order should state that in this eventuality, the
fund should be immediately released for the benefit of the
other creditors of the fund. I am not satisfied that I can prop
erly make this amendment because of the reservations
expressed in the Flexi-Coils case (supra). In any event, such an
amendment would be outside the purvue of rule 337(5)
because this remedy was not contemplated in my original
order and simply admitted due to a clerical error. On the other
hand, it would seem that it would be appropriate forme to pro
vide that the parties may reapply to the court within 120 days
after the exhausting of all appeals to make submissions with
respect to the fund remaining in the court. It might well be at
this later stage that the court would provide the remedy pro
posed by Baseline Industries Ltd., but I feel that it is appropri
ate that this be left for future consideration.
This case is easily distinguished from the case at
bar. What was allowed by Mr. Justice Rouleau was
an amendment to his order so that the order would
conform with his reasons for order. In the case at bar,
I did not issue an order which did not conform with
my reasons for order.
What Mr. Justice Rouleau is saying is that it is in
the interests of justice to amend an order of the
Court, even if the matter is before the Appeal Divi
sion of the Court if the order does not conform with
the reasons given. This is clearly permitted pursuant
to Rule 337(5) as the error was due to an oversight or
omission. Amendment is not permitted where the
order follows from the written reasons. This is also
confirmed by Mr. Justice Rouleau where he states,
regarding a second amendment [supra]:
I am not satisfied that I can properly make this amendment
because of the reservations expressed in the Flexi-Coils case
(supra).
I am satisfied I do not have the jurisdiction to
amend or vary my order of May 19, 1992 in that the
matter is now before the Appeal Division. My order
follows from my reasons and the question of whether
"it is in the interest of justice" as in the Metaxas case
(supra) is not in issue before me. Nor do I believe it
proper for me to vary or amend my order while the
matter is before the Appeal Division.
In the case of Flexi-Coil Ltd. v. Smith-Roles Ltd. et
al. (1985), 4 C.P.R. (3d) 174 (F.C.T.D.), in an appli-
cation pursuant to Rule 337 of the Federal Court
Rules where a variation of an order was sought and
the matter was in appeal, Madam Justice Reed, at
page 175 states:
There is, however, an additional and overriding reason for
rejecting this motion: the December 6, 1984 order is under
appeal. Accordingly, in my view, it would be highly improper
for me to attempt to vary that order now, even should I wish to
do so.
It is important to note that Madam Justice Reed
does not say she does not have the jurisdiction to
vary or amend her order but only that it would be
improper for her to do so while the matter was under
appeal.
I take this to mean that she too would amend or
vary her order if, as a result of an inadvertent omis
sion, her order did not conform with her written rea
sons. For no other reason would she amend or vary
her order while the order was under appeal.
In the case of Henry v. Canada, T-1529-85, March
29, 1989 ( not reported) Mr. Justice Rouleau, in deal
ing with an application to vary or amend a decision
pursuant to Rule 1733 and which decision was under
appeal, as in the case at bar, states:
... I have also reached the conclusion that the Trial Division of
the Federal Court is now functus to deal with this application.
For the above reasons, I am satisfied that as a
result of my May 19, 1992 order being under appeal,
I do not have the jurisdiction, pursuant to Rule 1733,
to vary or amend my order. As I have previously
stated herein, I am also of the belief that it would be
improper for me to do so.
Is this an appropriate case for an order to vary pursu
ant to Rule 1733?
There is much evidence in the 3 affidavits filed as
to when the applicant [plaintiff] probably received
the report from the Commission. In that I have found
that I do not have jurisdiction to vary or amend my
order pursuant to Rule 1733, I believe it would be
most improper for me to comment on this evidence.
The application to amend and set aside judgment
(order) due to matters subsequently discovered pursu
ant to Rules 303 and 1733 of the Federal Court Rules
is denied with costs in favour of the respondents
[defendants].
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.