Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Hughes v.

GN, 2016 NUCJ 15 Date: 20160530 Docket: 08-15-121 Registry: Iqaluit Applicant: Chas Hughes -and- Respondent: Government of Nunavut ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Applicant): James Morton Counsel (Respondent): Adrienne Silk Location Heard: Iqaluit, Nunavut Date Heard: March 10, 2016 Matters: Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96, Rule 596(2) ; Rule 713 ; Extension of time for filing of application; Application for Judicial Review REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I.

INTRODUCTION

[ 1 ] This is an application to extend the time for filing an application for judicial review. Although the application is framed as being pursuant to Rule 713 of the Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 [Rules of Court], in my view Rule 596(2) of the Rules of Court is the applicable Rule, as it deals specifically with extending the time to bring judicial review applications. Regardless, both Rules affirm the jurisdiction of the Court to extend the time for filing.

Although not specifically stated in the application, the decision to be reviewed is the January 2014, decision of the Staffing Appeals Committee. The test to be applied in determining whether the Court should exercise its discretion to extend the time is found in the case law. II. BACKGROUND [ 2 ] The applicant applied for the position of Director of Transportation Policy and Planning with the Government of Nunavut. The position was advertised for competition in January of 2013, and was filled in December of 2013.

The applicant was not the successful candidate. [ 3 ] Upon being notified that he was not the successful candidate, the applicant filed an appeal of the decision pursuant to the procedures set out in the Public Service Act, S.Nu. 2013, c. 26.

On January 17, 2014, the applicant was advised that the appeal was denied. [ 4 ] From January 17, 2014, when the applicant was notified that his appeal was denied, to March 20, 2015, when the application for judicial review was filed, the applicant made various requests pursuant to the Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20 (Nunavut) [ATIPP].

The first of these requests was made on March 5, 2014, and the issues regarding the ATIPP requests were resolved in early March, 2015. [ 5 ] Although the application for judicial review was filed more than 14 months after the appeal had been denied, well beyond the 30 day limitation set out in Rule 596 of the Rules of Court, the applicant did not seek an extension of the time period for filing the application. On July 2, 2015, a deficient Notice of Motion was filed in that it did not set out the nature of the application or seek relief of any kind.

It was nothing more than a form without substance and was clearly filed in error. On December 1, 2015, over 8 months after filing the judicial review application, a motion to extend the time for filing the judicial review application was filed. On March 6, 2016, the motion to extend the time for filing the judicial review application was heard. [ 6 ] In

summary, the relevant dates are: January 17, 2014 applicant advised of the Staffing Appeals Committee decision February 17, 2014 30 day deadline for filing the judicial review application March 20, 2015 judicial review application filed December 1, 2015 motion filed to extend the time for filing the judicial review application March 10, 2016 motion to extend the time for filing the judicial review application heard III.

POSITIONS OF THE PARTIES [ 7 ] The applicant submits that the reason for the delay in filing the application for judicial review was due to the delay involved with the filing and responding to the ATIPP requests. The applicant submits that it would have been premature to file an application for judicial review without the information provided in response to the ATIPP requests, as the applicant was uncertain as to the basis for a review prior to receiving the information.

[8] With respect to the delay of almost one year from the date of filing the application for judicial review to the date of the hearing,counsel for the applicant submits that the delay was attributable to counsel and his

schedule and that the applicant should not bear theconsequences of the delay. The applicant submits that there is no prejudice to the respondent as it is in a good position to defendregardless of the delay. The applicant further submits that there is merit to the application. [9] The respondent submits that the applicant does not meet the test for extending the filing deadline as set out in the case law.

Therespondent submits that the filing of ATIPP requests does not equate to a demonstrated intention to apply for judicial review; that theexplanation for the delay is not satisfactory; that there is prejudice to both the respondent and a third party, that being the successfulcandidate for the job, as expectations have been settled; and that there is little merit to the application. IV. ANALYSIS [10] The Rules of Court provide as follows: 596.

(1) Unless otherwise provided by statute, where the relief sought in an application for judicial review is an order to set aside adecision or act, the originating notice shall be filed and served within 30 days after the decision or act to which it relates.

Unless an enactment otherwise provides, the Court may extend the time for bringing an application for judicial review before or after theexpiration of the 30 day time limit set out in subrule (1). [11] The test for determining whether the court should exercise its discretion to extend the time limit for filing an appeal, in this instancea judicial review application, is well set out in the case law (Cairns v Cairns, (AB CA), [1931] AJ No 76, [1931] 4DLR 819 [Cairns]). [12] The test is: 1. Has the applicant maintained a firm intention to appeal within the relevant time period; 2.

Has the applicant provided a reasonable explanation for failing to appeal within the time period; 3. Is there prejudice to the respondent in granting the extension; and 4. Is there so little merit in the proposed appeal that the court could reasonably deny the appellant this important right? [13] While it is not strictly necessary that the applicant satisfy each of the four branches of the test, the longer the delay the more strictlythe court will apply the test and require that all four branches be met. A.

Bona fide intention to apply for judicial review [14] The applicant submits that his bona fide intention to bring an application for judicial review is demonstrated by the fact that heappealed the decision of the screening panel and that he brought ATIPP requests following the denial of his appeal.

The applicantsubmits that this demonstrates a continued intention to challenge the decision to screen him out of the interview process for the position. [15] The fact of having appealed the decision of the screening panel cannot demonstrate an intention to bring a judicial review of theStaffing Appeals Committee decision, as the appeal of the screening panel decision predates the decision of the Staffing AppealsCommittee. [16] With respect to the ATIPP requests, in my view they are ambiguous on the point and do not clearly demonstrate an intention to seek

judicial review. There are a variety of reasons why a person might seek the documentation sought by the applicant through ATIPP requests, many of which have nothing to do with the court process. There is a distinction between challenging a decision through appeal and review processes that are internal to the Government of Nunavut and seeking a review through the courts. A demonstrated desire to pursue one of these courses of action is not necessarily a demonstrated desire to pursue the other. Indeed, the argument of the applicant supports this position.

The applicant argues that the ATIPP requests were necessary in order to determine if there was a basis upon which to bring an application for judicial review. The corollary of this is that if a review of the documents did not disclose a ground for judicial review then such an application would not be brought. This is inconsistent with a settled intention to seek judicial review. [ 17 ] Further, as pointed out by the respondent, the first ATIPP request was filed beyond the deadline set out in the Rules of Court for seeking judicial review.

If the ATIPP requests are to be relied upon as indicia of an intention to seek judicial review, that intention ought to have been demonstrated during the 30 day limitation period to bring a judicial review application. B. Explanation for the delay [ 18 ] The applicant submits that it was reasonable not to apply for judicial review until all of the ATIPP requests and responses had been dealt with. The applicant submits that it was information gleaned from these documents that formed the basis for the judicial review application. [ 19 ] The applicant does not suggest that he was unaware of the filing deadline.

He does not suggest that he somehow misapprehended the court process, resulting in a misunderstanding as to when the limitation period would expire. [ 20 ] Essentially, the applicant’s position is that he chose to ignore the limitation period because, in his view, it would be a waste of judicial resources to file before receiving the information he sought through the ATIPP requests. [ 21 ] It is difficult to assess this submission as the Originating Notice does not set out the basis upon which judicial review is being sought; it simply states that the applicant was the most qualified person for the position and that the direct appointment of the successful candidate was not in compliance with the Public Service Act. [ 22 ] It is only by delving into the applicant’s factum that the grounds for the application become more evident.

These grounds appear to be the failure of the Staffing Appeals Committee to grant the applicant a viva voce hearing, an issue of procedural fairness, and that the people who were on the screening panel for the job competition were the same people who requested that the Cabinet of the Government of Nunavut directly appoint the successful applicant, an issue of bias. [ 23 ] Assuming that I have correctly identified the grounds for the judicial review application, it is clear that at least one of the grounds, the lack of a viva voce hearing, would have been evident to the applicant when he was notified on January 17, 2014, that his appeal had been denied. [ 24 ] Further, the applicant’s submission does nothing to address the delay from the date of filing the judicial review application to the hearing date of the application to extend the time for filing, a delay just a few days short of one year.

There has been no explanation given for this delay. A lengthy delay in filing the application for judicial review has been compounded by a further lengthy delay in bringing an application to extend the filing deadline. [ 25 ] An applicant who has missed the filing deadline has an obligation to move quickly to apply to extend the filing deadline.

All of the delay, from the date of the lapsed deadline to the date of the hearing to extend, must be explained. [ 26 ] As stated in Rosenke v Rosenke, 1999 ABCA 236 at para 21 , [1999] AJ No 920 , and adopted in Vendetti v Blanchette, 2012 NUCJ 22 , 2012 CarswellNun 29 : [21] A second and overlapping problem is the delay in moving. It is not enough for someone who has missed the time to appeal to explain how he or she missed the time. He or she must also account for the delay until he or she moves to extend the time.

Otherwise, a good excuse for missing the deadline for appealing by two days, would permit a year’s extension of the time to appeal.

C. Prejudice to the respondent [ 27 ] The applicant submits that there is no prejudice to the respondent if the extension is granted as the respondent is still able to defend the application. In my view, this is only one aspect of prejudice which the Court must consider. [ 28 ] A lengthy delay brings with it inherent prejudice. However, in this instance there are legal relationships and expectations that have been settled based on the decision sought to be reviewed. It is not just the respondent whose circumstances would become uncertain, but also those of a third party, the successful candidate.

A successful application of judicial review would result in prejudice much greater than the prejudice which would have resulted had there been no delay. D. Merit of the application [ 29 ] While the Court is required to review the merits of the case to some extent at this stage of the analysis, it is not appropriate to delve too deeply into the case. [ 30 ] The applicant grounds his application for judicial review on the fact that he was not granted a viva voce hearing before the Staffing Appeals Committee.

The applicant points to correspondence dated May 26, 2014, in which the Assistant Comptroller General stated that an individual has the right to appear before the Staffing Appeals Committee and that steps will be taken to ensure this occurs in the future. [ 31 ] In my view, I must be cautious before placing too much reliance on this representation. The nature of a hearing will vary depending upon the circumstances.

Not all hearings require the opportunity to appear personally for the process to satisfy the principles of procedural fairness and natural justice. [ 32 ] The same is said regarding the allegation of bias. The fact that a person who was on the screening panel was also the person who recommended to the Cabinet a direct appointment to the position does not lead inescapably to a conclusion of bias. [ 33 ] While I am unable to conclude at this stage that the application for judicial review is wholly without merit, the circumstances are not such that obvious injustices in the matter call out for judicial intervention.

V. CONCLUSION [ 34 ] The lengthier the delay in bringing an application for judicial review, the greater the obligation on the party seeking an extension to meet all four branches of the Cairns test. [ 35 ] The applicant in this matter has failed to meet three requirements of the Cairns test. While not all factors will necessarily be weighted evenly, depending on the circumstances, the merits of this particular judicial review application are not obvious or overwhelming. [ 36 ] The application to extend the time for filing the judicial review application is dismissed.

Dated at the City of Iqaluit this 30th day of May, 2016

___________________ Justice S. Cooper Nunavut Court of Justice