2019 FC, 2019 FC 1138

Date: 20190905 Docket: T-1641-18 Citation: 2019 FC 1138 Ottawa, Ontario, September 5, 2019 PRESENT: The Honourable Mr. Justice Pamel BETWEEN: WILLIAM FENWICH WEST Applicant and PAROLE BOARD OF CANADA AND ATTORNEY GENERAL OF CANADA Respondents ORDER AND REASONS [ 1 ] On October 10, 2018, the Applicant, Mr. William Fenwick West, filed with this Court an Application for Judicial Review [Application] of a decision of the Appeal Division of the Parole Board of Canada dated August 9, 2018 [Board Decision] denying his parole release which Mr.

Fenwick West was seeking in order to provide homecare for his elderly and dying mother. His mother passed away on September 13, 2018. [ 2 ] In support of his Application, Mr. Fenwick West filed a first affidavit containing 67 pages, 116 paragraphs and no exhibits. [ 3 ] Mr. Fenwick West should have filed his Applicant’s Record by December 20, 2018. He failed to do so. His attempt to file it on January 10, 2019, was refused by the Registry as he was out of time. [ 4 ] On February 6, 2019, Mr.

Fenwick West filed a motion in writing under Rule 369 of the Federal Courts Rules , SOR/98-106 [Rules]: for (1) leave to file a second affidavit containing five pages, seven paragraphs and 18 exhibits [Supplement Affidavit]; and (2) an extension of time to serve and file his Applicant’s Record that should have been filed by December 20, 2018. [ 5 ] The issue came before Madam Prothonotary Steele. On July 24, 2019, the Prothonotary dismissed Mr. Fenwick West’s motion [Prothonotary’s Order] primarily because Mr.

Fenwick West did not meet the test for permission to file additional affidavit evidence, and also failed to meet the test for an extension of time for the filing of his Applicant’s Record. [ 6 ] On August 6, 2019, Mr. Fenwick West filed a Notice of Motion for an Order “from a Judge allowing reconsideration of the decision of Madam Prothonotary Alexandra Steele dated July 24, 2019”. Mr.

Fenwick West is a self-represented litigant and other than referring specifically to Rule 369 in his Notice of Motion, did not reference any other rule of practice of this Court in his Notice of Motion. [ 7 ] On August 7, 2019, the Attorney General of Canada filed its Respondent’s Motion Record, contesting Mr. Fenwick West’s Notice of Motion on the premise, as one may expect, that Mr. Fenwick West was improperly seeking reconsideration of the Prothonotary’s Order pursuant to Rule 397. [ 8 ] On August 12, 2019, Mr.

Fenwick West filed his Reply material in which he stated not even having considered Rule 397. [ 9 ] In reading Mr. Fenwick West’s Notice of Motion, his affidavit in support thereof, and his Reply material, it seems clear to me that what Mr. Fenwick West is actually seeking is an appeal of the Prothonotary’s Order under Rule 51, and not reconsideration of the Order under Rule 397. I can certainly appreciate how Mr. Fenwick West could use the word “reconsideration” when he possibly meant “appeal”. [ 10 ] Either way, I am afraid that I must dismiss Mr.

Fenwick West’s motion. [ 11 ] In the event that what he intended was a motion under Rule 397, I must agree with the Attorney General that Rule 397 is meant to address clerical errors, oversights or omissions in the drafting of the Order itself. Mr. Fenwick West’s submissions are more in line with arguments on why the Prothonotary’s Order should be overturned. [ 12 ] Rule 397 is not meant to raise grounds of appeal, nor a mechanism for a party to argue an issue a second time around in hopes that the Court will change its view of the matter ( Bell Helicopters Textron Canada Limitée v Eurocopter , 2013 FCA 261 ).

In short, Rule 397 cannot be used as an avenue to indirectly appeal a decision ( Moss v Canada , 2006 FC 1124 at para 10 ). [ 13 ] In the event that what Mr.

Fenwick West was truly attempting to do is to appeal the decision under Rule 51, I cannot see any reason to set aside the Prothonotary’s Order. [ 14 ] First of all, as regards appeals of discretionary Orders of a Prothonotary under Rule 51, it is now well settled that a Judge should only intervene where the Prothonotary has made an error of law, or has exercised his or her discretion on wrong principles, or where the Prothonotary has misapprehended the evidence such that there was a palpable and overriding error ( Hospira Healthcare Corporation v Kennedy Institute of Rheumatology , 2016 FCA 215 ). [ 15 ] On the issue of granting leave to file the Supplemental Affidavit, the Prothonotary properly identified the factors set out by the Federal Court of Appeal ( Lapointe Rosenstein v Atlantic Engraving Ltd , 2002 FCA 503 at paras 8-9 ) and stated quite rightly that any evidence to be adduced in the context of a judicial review should, generally speaking, be limited to the record before the decision-maker

(Bernard v Canada Revenue Agency, 2015 FCA 263 at para 13). [16] The Prothonotary reviewed the Supplemental Affidavit and its exhibits, and concluded on the evidence before her that they wouldbe of no assistance to the Court in respect of the Application relating to the Board Decision. [17] I can see no error of law having been committed, or the reliance on erroneous principles, or any misapprehension of the evidence inthe Prothonotary’s determination. [18] On the issue of the extension of time to serve and file the Applicant’s Record, the Prothonotary identified and applied the factorsset out in Canada (Attorney General) v Hennelly, ,

(1999) FCJ No 846 (QL) (FCA) [Hennelly]. She recognized thegoverning principles to be applied in respect of the weight to be given to each factor as well as the overriding consideration that justicebe served between the parties (Canada (Attorney General) v Larkman, 2012 FCA 204; Grewal v Canada (Minister of Employment andImmigration), (FCA), [1985] 2 FC 263, 63 NR 106). [19] The Prothonotary reviewed the evidence in light of the factors set out in Hennelly, and concluded that Mr.

Fenwick West hadsimply failed to demonstrate both a reasonable justification for the delay as well as an arguable case on the merits, and that it would notbe in the interests of justice to allow for an extension of delay for the filing of the Applicant’s Record. [20] In his written representations on his Notice of Motion, other than simply being argumentative and disagreeing with variousstatements and findings of the Prothonotary, Mr.

Fenwick West has not convinced me that the Prothonotary had improperly applied thecriteria set out in Hennelly, nor that she somehow improperly assessed the interests of justice in this case. [21] In this case, the Prothonotary identified and applied the proper tests, and considered the issues in a reasoned way given the materialbefore her. I see no reason to disturb her findings. ORDER in T-1641-18 THIS COURT ORDERS that: 1. That the motion is dismissed; and 2. The Applicant is to pay costs to the Respondent in the amount of $100.00. "Peter G.

Pamel" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1641-18 STYLE OF CAUSE: WILLIAM FENWICH WEST v PAROLE BOARD OF CANADA ANDATTORNEY GENERAL OF CANADA MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTSRULES ORDER AND REASONS: PAMEL J. DATED: september 5, 2019 APPEARANCES: William Fenwick West For The Applicant (ON HIS OWN BEHALF) Kaitlin Duggan For The Respondents

SOLICITORS OF RECORD : Attorney General of Canada Halifax, Nova Scotia For The Respondents