LEANNE SIMMS Applicant v. CANADA REVENUE AGENCY, 2023 FC 913

Date: 20230629 Docket: T-512-22 Citation: 2023 FC 913 St. John’s, Newfoundland and Labrador, June 29, 2023 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: LEANNE SIMMS Applicant and CANADA REVENUE AGENCY Respondent REASONS AND ORDER [ 1 ] Ms. Leanne Simms (the “Applicant”) appeals from an Order of Associate Judge Duchesne, dismissing the within application for judicial review for delay.

The appeal is taken pursuant to Rule 51 of the Federal Courts Rules , SOR/98-106 (the “ Rules ”). [ 2 ] The Applicant filed an application for judicial review on March 7, 2022, seeking judicial review of the decision of the Canada Revenue Agency denying her application for the Canada Recovery Benefit (the “CRB”). [ 3 ] According to the Index of Recorded Entries (the “Index”), a Notice of Status Review was issued by Associate Judge Tabib on October 21, 2022.

The Notice of Status Review provides as follows: IN THIS APPLICATION, MORE THAN 180 DAYS HAVE ELAPSED since the issuance of the notice of application and no requisition for hearing date has been filed. ACCORDINGLY, THE APPLICANT IS REQUIRED TO SERVE AND FILE, within 15 days of the date of this notice, representations stating the reasons why the proceeding should not be dismissed for delay. The representations shall include a justification for the delay and a proposed timetable for the completion of the steps necessary to advance the proceeding in an expeditious manner.

THE RESPONDENT MAY SERVE AND FILE representations within seven days after being served with the representations of the applicant. THE APPLICANT MAY SERVE AND FILE a reply within four days after being served with the representations of the respondent. [ 4 ] An entry on the Index shows that the parties to the application for judicial review, that is the Applicant and the Canada Revenue Agency (the “Respondent”), acknowledged receipt of the Notice of Status Review on October 21, 2022. [ 5 ] According to the Index, the Applicant attended at the Registry of the Court in Halifax, Nova Scotia, on November 15, 2022.

The entry for that date provides as follows: On November 14, 2022, the Applicant arrived at the Registry in Halifax and provided me a copy of her Written Representations in response to the Notice of Status Review issued on October 21, 2022. The Applicant had also not served the document on the Respondent prior to her arrival in the Registry. The Applicant was informed that she was late in filing and that I would send it up to the Court for Direction. I also informed her to serve a copy on the Respondent as soon as possible.

On November 15, 2022, the Applicant provided me with an acknowledgment of receipt of the Representations upon the Respondent. The Applicant’s response to the Notice of Status Review will now be forwarded to the Court for Direction pursuant to Rule 72. [ 6 ] On November 16, 2022, the Registry sought Directions from the Court about accepting the Applicant’s submissions to the Notice of Status Review because the time for filing had expired. [ 7 ] On the same day, Associate Judge Duchesne issued an Oral Direction, as follow: Pursuant to Rule 72(2)(a), I direct that the Applicant’s Written Representations be rejected.

The Applicant will have to seek an Order extending the time for service and filing of their Written Representations. [ 8 ] Acknowledgement of receipt of the Oral Direction, by both parties, was recorded in the Index on November 17, 2022. [ 9 ] No order was issued extending the time for the Applicant to file a response to the Notice of Status Review.

Although the Oral Direction of November 16, 2022, does not specifically tell the Applicant to file a notice of motion for an extension of time, a motion is a necessary step for obtaining an order, pursuant to the Rules . [ 10 ] On December 19, 2022, Associate Judge Duchesne issued an Order dismissing the Applicant’s application for judicial review. The

preamble of the Order provides as follows:

UPON reading the Notice of Status Review made by Associate Judge Tabib on October 21, 2022; AND CONSIDERING that Rule 382.01 of the Federal Court Rules, SOR/98-106 (the “Rules”) provides that the statusreview of a proceeding commenced in the Federal Court shall be conducted on the basis of the written representations of theparties; AND CONSIDERING that the time within which the applicant was required to serve and file her written representationsstating the reasons why her proceeding should not be dismissed for delay, along with a justification for her delay inadvancing this proceeding, and a proposed timetable for the completion of the steps necessary to advance the proceeding inan expeditious manner, has expired without the applicant serving and filing her written representations with proof of serviceof the same; AND CONSIDERING that the applicant has not explained the reasons why her proceeding has not moved faster andwhether those reasons justify the delay that has occurred, or what steps she is now proposing to move the matter forward asrequired by Baroud v.

Canada, (FC) at para. 4; AND CONSIDERING that the Court is not satisfied that the applicant’s proceeding should continue; [11] The Index shows that the Respondent acknowledged receipt of the Order on December 20, 2022, and that the Applicantacknowledged receipt on December 23, 2022. [12] The Applicant filed a notice of motion on January 16, 2023, appealing the Order of Associate Judge Duchesne. She included WrittenRepresentations outlining a history of personal events from March 2019 until December 2022, including a death in her family, loss ofemployment, and the end of her marriage.

She set out the reasons why she disagrees with the Respondent’s decision to deny her theCRB. [13] The Respondent filed a responding motion record on January 24, 2023, opposing the Applicant’s appeal. It argues that theApplicant did not identify any reviewable errors in Associate Judge Duchesne’s Order. [14] The Order of Associate Judge Duchesne is a discretionary order, reviewable upon the standard set out by the Federal Court ofAppeal in Hospira Healthcare Corporation v.

Kennedy Institute of Rheumatology, 2016 FCA 215 , [2017] 1 F.C.R. 331. [15] In Hospira, supra, the Federal Court of Appeal said that reviewing courts should intervene in the discretionary decision of aprothonotary, now an associate judge, when the prothonotary has made an error of law or has exercised his or her discretion upon awrong principle, or where he or she has misapprehended the evidence such that there is a palpable and overriding error. In the latter case,the reviewing court is to apply the standard of review applicable to decisions of trial judges, as set out by the Supreme Court of Canadain Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. [16] I also refer to paragraphs 27 and 66 of Hospira, supra, which detail how the standard of review applies to the review of a decision ofa prothonotary: [27] […] a discretionary decision made by a prothonotary is clearly wrong, and thus reviewable on appeal by a judge, whereit is based: (1) upon a wrong principle – which implies that correctness is required for legal principles – and (2) upon amisapprehension of facts – which seems to be the equivalent of the “overriding and palpable error” criterion of the Housenstandard if it caused the Prothonotary’s decision to be “clearly wrong”. […] [66] In Housen, the Supreme Court enunciated the standard of review applicable to decisions of trial judges.

Moreparticularly, it concluded that with respect to factual conclusions reached by a trial judge, the applicable standard was that ofpalpable and overriding error. It also stated that with respect to questions of law and questions of mixed fact and law, wherethere was an extricable legal principle at issue, the applicable standard was that of correctness (paragraphs 19 to 37 ofHousen). [17] I acknowledge that in disposing of a response to a Notice of Status Review, an associate judge is making a discretionary decision. Irefer to Rule 382.1(2) which provides as follows: Review by the Court

(2) A judge or prothonotary shallconduct a status review and may Examen de la Cour

(2) Un juge ou un protonotaireprocède à l’examen de l’état del’instance et peut : (

a) if he or she is not satisfiedthat the proceeding shouldcontinue, dismiss the proceeding;or

a) s’il n’est pas convaincu quel’instance doit se poursuivre, larejeter;

(

b) if he or she is satisfied that the proceeding should continue, order that it continue as a specially managed proceeding and may make an order under rule 385. " "

b) s’il est convaincu que l’instance doit se poursuivre, ordonner qu’elle se poursuive à

titre d’instance à gestion spéciale et rendre toute ordonnance prévue à la règle 385. " " [ 18 ] Upon review of the entries on the Index and review of the Order under appeal, I cannot say that the Associate Judge committed a reviewable error. [ 19 ] The Associate Judge directed the Applicant to obtain an order for an extension of time.

Although there is nothing on the Index to show that anyone gave the Applicant any guidance about obtaining such an order, I note that as a self-represented person she bore some responsibility for informing herself about the necessary processes. [ 20 ] The fact is clear on the record: the Applicant did not file written representations in response to the Notice of Status Review, on a timely basis. She did not obtain an order for an extension of time, further to the Oral Direction of Associate Judge Duchesne.

It was open to Associate Judge Duchesne, in the exercise of his discretion, to dismiss the Applicant’s application for judicial review. [ 21 ] It is irrelevant that another person may have exercised that discretion in a different way. [ 22 ] Although the Applicant describes extenuating circumstances in her motion record, in this appeal from the Order of Associate Judge Duchesne, this Court is not mandated to decide whether an extension of time should be granted to file a response to the Notice of Status Review. [ 23 ] Associate Judge Duchesne directed the Applicant to file a motion for an extension of time, to file a reply to the Notice of Status Review.

She did not do so. [ 24 ] There is no basis for the Court to intervene in the decision of the Associate Judge and the appeal will be dismissed. In the exercise of my discretion pursuant to Rule 400 of the Rules , there will be no order as to costs. ORDER in T-512-22 THIS COURT ORDERS that the motion is dismissed and the appeal from the Order of Associate Judge Duchesne is dismissed. In the exercise of my discretion, there is no order as to costs. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-512-22 STYLE OF CAUSE: LEANNE SIMMS v. CANADA REVENUE AGENCY MOTION IN WRITING CONSIDERED AT ST.

JOHN'S, NEWFOUNDLAND AND LABRADOR, PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES REASONS AND JUDGMENT: HENEGHAN J. DATED: JUNE 29, 2023 WRITTEN REPRESENTATIONS BY: Leanne Simms FOR THE APPLICANT (ON HER OWN BEHALF) Caitlin Ward FOR THE RESPONDENT SOLICITORS OF RECORD : Attorney General of Canada Halifax, Nova Scotia FOR THE RESPONDENT