GUILLAUME LEMAY Applicant v. HER MAJESTY THE QUEEN, 2017 FCA 155

Date: 20170714 Docket: 17-A-19 Citation: 2017 FCA 155 [ENGLISH TRANSLATION] Present : SCOTT J.A. BETWEEN:GUILLAUME LEMAYApplicantandHER MAJESTY THE QUEENRespondent Motion dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on July 14, 2017. REASONS FOR ORDER: SCOTT J.A. Date: 20170714 Docket: 17-A-19 Citation: 2017 FCA 155 Present: SCOTT J.A. BETWEEN:GUILLAUME LEMAYApplicantandHER MAJESTY THE QUEENRespondent REASONS FOR ORDER SCOTT J.A. [1] UPON the motion filed on May 5, 2017, under Rules 8 and 369 of the Federal Courts Rules, SOR/98-106, by the applicant,Guillaume Lemay (Mr.

Lemay), requesting an extension of time to appeal from a judgment on a motion for

summary judgment (theJudgment), rendered on January 18, 2016, by the Honourable Jocelyne Gagné (the Judge). [2] UPON our Court’s decision in Pharmascience Inc. v. Canada (Minister of Health), [2004] 2 FC 349, 2003 FCA 333, at paragraph 6which outlines the principles for deciding whether or not to grant a motion for an extension of time to commence an appeal: [6] In deciding whether or not to grant an extension of time to commence an appeal, the basic test is whether the interests ofjustice favour granting the extension.

The factors to be considered are conveniently summarized in Karon Resources Inc. v.Canada, (FC), [1994] 1 C.T.C. 307 (F.C.T.D): (1) whether there is an arguable case on appeal, (2)whether there are special circumstances that justify the delay in commencing the appeal, (3) whether there was a continuingintention to appeal, (4) whether the delay has been excessive, and (5) whether the respondent will be prejudiced if theextension of time is granted. The weight to be given to each of these factors will vary with the circumstances. [3] When the Court applies these criteria to the motion brought by Mr.

Lemay, certain factors assume a greater importance—notably,whether his request involves an arguable case on appeal, whether Mr. Lemay had a continuing intention to pursue the appeal, andwhether the explanations given justified the delay. [4] On reading Mr. Lemay’s motion, I note that the main reason for Mr. Lemay’s appeal stemmed from a decision rendered by VeteransAffairs Canada (VAC) in January 2017 to recognize again his entitlement to benefits under the Earnings Loss Benefit program, that is,after the Judge’s decision.

I also note that this motion does not allege any error in law by the Judge when she found that the motioncommenced by Mr. Lemay did not raise any valid cause of action and that he had not exhausted his administrative recourse. Mr. Lemaytherefore did not identify an arguable case that he intends to appeal. The fact that VAC decided to recognize his entitlement under theEarnings Loss Benefit program in January 2017 cannot affect the Judge’s decision.

[ 5 ] Furthermore, in this case, there is nothing to indicate that Mr. Lemay had a continuing intention to pursue the appeal. [ 6 ] Mr. Lemay’s motion gives no explanation to justify his delay or to confirm his continuing intention to appeal the Judgment. [ 7 ] In short, more than 16 months have passed since Mr. Lemay received the Judgment. Absent allegations of a serious and arguable case on appeal and explanations to justify his delay and confirm his continuing intention to appeal the judgment, it is my opinion that this motion for extension of time should be denied. “A.F. Scott” J.A.

FEDERAL COURT OF APPEAL SOLICITORS OF RECORD Docket: 17-A-19 STYLE OF CAUSE: GUILLAUME LEMAY v. HER MAJESTY THE QUEEN MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR JUDGMENT BY: SCOTT J.A. DATED: July 14, 2017 WRITTEN SUBMISSIONS BY : Guillaume Lemay For the applicant Representing himself Marie-Josée Bertrand For the respondent SOLICITORS OF RECORD : Nathalie G. Drouin Deputy Attorney General of Canada For the respondent