2023 FC, 2023 FC 1230

Date: 20230912Docket: T-1441-22 Citation: 2023 FC 1230Toronto, Ontario, September 12, 2023PRESENT: The Honourable Madam Justice HeneghanBETWEEN: AFFAN ASHRAFApplicant andJAZZ AVIATION LP Respondent REASONS AND ORDER [1] By a Notice of Motion dated October 25, 2022, Mr. Affan Ashraf (the “Applicant”) seeks reconsideration of the Order made onOctober 19, 2022, by Associate Judge Ring.

In the Order, the Associate Judge dismissed a motion from the Applicant, seeking anextension of time to file his Application Record. [2] The Applicant filed his Application for Judicial Review on July 12, 2022, in respect of a decision made by the Canadian HumanRights Commission on June 29, 2022, dismissing his complaint about alleged discrimination on the part of Jazz Aviation LP (the“Respondent”), his former employer. [3] According to the Reasons of Associate Judge, the Application Record was due to be filed within 30 days after issuance of theApplication for Judicial Review.

The Application Record was not filed within the prescribed time. On September 26, 2022, the Applicantfiled his motion for an extension of time for consideration without personal appearance, pursuant to Rule 369 of the Federal CourtsRules, S.O.R./98-106 (the “Rules”). [4] The Respondent opposed the Applicant’s Motion for an extension of time, citing the decision in Canada (Attorney General) v.Hennelly (1999), (FCA), 244 N.R. 399 (F.C.A.).

Although acknowledging that the Applicant had a continuingintention to pursue his Application for Judicial Review, the Respondent argued that the Application lacked merit and that the Courtshould decline to exercise its discretion to grant an extension of time. [5] In her reasons, the Associate Judge reviewed the factors identified in Hennelly, supra, that is a continuing intention to pursue theproceeding, the merits of the proposed Application, the prejudice to the Respondent if the extension of time were granted, and theexplanation for the delay. [6] The Associate Judge concluded that the Applicant had failed to show merit in the proposed Application for Judicial Review, thatthere would be prejudice to the Respondent, and that the Applicant had failed to provide a reasonable explanation for the whole period ofthe delay. [7] The Applicant filed the present Motion for consideration without personal appearance, again pursuant to Rule 369.

The Index ofRecorded Entries shows an acknowledgement of receipt of the Motion record by the Respondent. [8] The Respondent did not file a responding Motion Record. [9] The Motion Record submitted by the Applicant upon his Motion for reconsideration is lengthy. It includes a copy of the ApplicationRecord that the Applicant wants to file. It includes written representations. [10] Rule 397 allows the Court to reconsider an order in certain circumstances. It provides as follows:

" Motion to reconsider " " 397

(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that " " (

a) the order does not accord with any reasons given for it; or " " (

b) a matter that should have been dealt with has been overlooked or accidentally omitted. " " Mistakes " "

(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. " " " " Réexamen " " 397 (1) " " Dans les 10 jours après qu’une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une

partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l’ordonnance, telle qu’elle était constituée à ce moment, d’en examiner de nouveau les termes, mais seulement pour l’une ou l’autre des raisons suivantes : " " a) " " l’ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier; " " b) " " une question qui aurait dû être traitée a été oubliée ou omise involontairement. " " Erreurs " " (2) " " Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour.

" [ 11 ] The Applicant did not identify any basis upon which the Order of the Associate Judge can be reconsidered, within the scope of Rule 397. He appears to challenge the merits of that Order, something that can be done only upon an appeal. [ 12 ] In any event, a motion for reconsideration does not operate as an appeal in disguise; see the decision in Sharma v. Canada (Revenue Agency) , 2020 FCA 203 . [ 13 ] In my opinion, the Applicant has failed to show any ground for the exercise of discretion for reconsideration of the Order of October 19, 2022. The Motion will be dismissed.

ORDER in T-1441-22 THIS COURT ORDERS that the Motion is dismissed. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1441-22 STYLE OF CAUSE: AFFAN ASHRAF v JAZZ AVIATION LP MOTION IN WRITING CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES REASONS AND ORDER: HENEGHAN J. DATED: SEPTEMBER 12, 2023 WRITTEN REPRESENTATIONS BY : Affan Ashraf For The Applicant Geoffrey J. Litherland For The Respondent SOLICITORS OF RECORD : Harris & Company LLP Vancouver, British Columbia For The Respondent