gell v. canadian pacific ltd., [1988] 2 S.C.R. 271

Canadian Human Rights Commission Applicant

v.

Canadian Pacific Limited Respondent

indexed as: gell v. canadian pacific ltd.

File No.: 20729.

1988: June 6; 1988: October 27.

Present: Beetz, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

motion for extension of time

Courts -- Jurisdiction -- Supreme Court of Canada -- Federal Court of Appeal -- Motion for extension of time to bring an application for leave to appeal from a judgment of the Federal Court of Appeal ‑‑ Whether Supreme Court or Federal Court of Appeal has jurisdiction to extend the time period ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 41, 42, 64 ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 31, 33.

Practice ‑‑ Supreme Court of Canada ‑‑ Motion for an extension of time to bring an application for leave to appeal from a judgment of Federal Court of Appeal ‑‑ Supreme Court of Canada without jurisdiction to extend the time period ‑‑ Motion dismissed ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 41, 42, 64 ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 31, 33.

On January 20, 1988, the applicant filed a motion in this Court asking for an extension of time for the bringing of an application for leave to appeal from a judgment of the Federal Court of Appeal rendered on October 13, 1987. Does the Supreme Court or any judge thereof have jurisdiction to extend the time period prescribed for bringing an application for leave to appeal from a judgment of the Federal Court of Appeal?

Held: The motion should be dismissed.

An application for leave to appeal from a judgment of the Federal Court of Appeal must be brought before that Court or the Supreme Court within sixty days of the pronouncement of the judgment appealed from. The combined operation of the Federal Court Act and the Supreme Court Act is such that the authority to extend this sixty‑day period rests with a judge of the Federal Court of Appeal and not with the Supreme Court. The motion for extension of time must therefore be dismissed, this Court lacking the jurisdiction to make such an order.

Cases Cited

Overturned: Matsqui Institution Disciplinary Board v. Martineau, F.C.A., No. A‑500‑77, June 26, 1978.

Statutes and Regulations Cited

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 31 [am. 1974‑75‑76, c. 18, s. 9], 33.

Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 41 [am. 1974‑75‑76, c. 18, s. 5], 42, 64.

MOTION for extension of the time for the bringing of an application for leave to appeal from a judgment of the Federal Court of Appeal**. Motion dismissed.

** Gell v. Canadian Pacific Ltd., F.C.A, No. A‑712‑86, October 13, 1987.

Russell G. Juriansz, for the applicant.

N. D. Mullins, Q.C., for the respondent.

The judgment of the Court was delivered by

Beetz J. -- The applicant seeks an extension of time within which to bring an application for leave to appeal from a judgement of the Federal Court of Appeal rendered on October 13, 1987. The applicant also seeks leave of this Court to appeal from the same judgment.

In a sworn affidavit, General Counsel for the applicant, the Canadian Human Rights Commission, deposed that the decision to seek leave to appeal was made on December 16, 1987. On January 20, 1988, the applicant filed a motion in this Court asking for an extension of the time for the bringing of an application for leave to appeal, in other words outside the sixty-day time period prescribed by the then applicable s. 64 of the Supreme Court Act. R.S.C. 1970, c. S-19.

A preliminary jurisdictional matter arises which must be decided before this Court can decide on the merits of the application for leave to appeal: does the Supreme Court or any judge thereof have jurisdiction to extend the time period prescribed for bringing an application for leave to appeal from a judgment of the Federal Court of Appeal?

On March 21, 1988, the parties argued the application to extend time and the application for leave to appeal before a bench composed of Le Dain, L'Heureux-Dubé JJ. and myself. After the parties spoke to the application to extend time, which turns on the jurisdictional point only, we reserved judgment on that motion and asked counsel to address the application for leave to appeal on the merits. At the end of the hearing, we reserved judgment on the application for leave to appeal as well.

It was decided that the jurisdictional issue raised by the application to extend time was sufficiently important that it should be heard by a bench of five judges of this Court. On June 6, 1988, a bench composed of Wilson, Le Dain, La Forest, L'Heureux-Dubé JJ. and myself heard arguments by the parties on the jurisdictional point only. The merits of the application for leave itself were not re-argued. The bench of five judges convened on June 6, 1988 would rule on the application to extend time. If the resolution of that application required the Court to consider the application for leave to appeal on the merits, then this latter motion would be decided by the bench of three judges present when that motion was argued on March 21, 1988.

The written application to extend time beyond the statutory sixty-day delay for leave to appeal was made by Mr. Juriansz, counsel for the Commission, pursuant to s. 41(2) of the Supreme Court Act. Section 41, which has since been amended, stated as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.

(2) Leave to appeal under this section may be granted during the period fixed by section 64 or within thirty days thereafter of within such further extended time as the Supreme Court or a judge may either before or after the expiry of the thirty days fix or allow.

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

(4) Whenever the Supreme Court has granted leave to appeal, the Supreme Court or a judge may, notwithstanding anything in this Act, extend the time within which the appeal may be allowed.

Mr. Mullins, counsel for Canadian Pacific Ltd., took the position, which is clearly right, that s. 41 of the Supreme Court Act only applies to appeals from the highest court of final resort in a province or any judge thereof and not to appeals from the Federal Court of Appeal.

Appeals from the Federal Court of Appeal are governed solely by s. 42 of the Supreme Court Act and by ss. 31 and 33 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, which provide as follows:

Supreme Court Act

42. Notwithstanding anything in this Act, the Supreme Court has jurisdiction as provided in any other Act conferring jurisdiction.

Federal Court Act

31. . . .

(2) An appeal to the Supreme Court lies with leave of the Federal Court of Appeal from a final or other judgment or determination of that Court where, in the opinion of the Court of appeal, the question involved in the appeal is one that ought to be submitted to the Supreme Court for decision.

(3) An appeal lies to the Supreme Court from a final or other judgment or determination of the Federal Court of Appeal, whether or not leave to appeal to the Supreme Court has been refused by the Federal Court of Appeal, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment or determination is accordingly granted by the Supreme Court.

33. (1) An appeal to the Supreme Court under this Act shall be brought within sixty days from the pronouncement of the judgment of the determination appealed from (in the calculation of which July and August shall be excluded) or within such further time as a judge of the Court of Appeal may either before or after the expiry of those sixty days fix or allow, by depositing a notice of appeal with the Registrar of the Supreme Court.

(2) All parties directly affected by the appeal shall be served forthwith with a copy of the notice of appeal and evidence of service thereof shall be filed with the Registry of the Supreme Court.

(3) A copy of the notice of appeal as deposited with the Registrar of the Supreme Court shall be filed in the Registry of the Federal Court.

(4) The notice of appeal may limit the subject of the appeal to a part of the judgment or determination complained of.

These provisions appear to create a jurisdictional gap. While section 31(2) and (3) of the Federal Court Act give the Federal Court of Appeal and the Supreme Court the power to grant leave to appeal from a judgment of the Federal Court of Appeal, neither the Federal Court Act nor the Supreme Court Act prescribe a time period during which an application for leave to appeal must be brought. Furthermore, if such a time period does exist, neither statute grants express authority to extend time for a late application.

For quite some time, rota judges of this Court have routinely granted extensions of time within which to bring applications for leave to appeal from judgments of the Federal Court of Appeal. Indeed in at least one instance, the Federal Court of Appeal itself ruled that it was without jurisdiction to extend the time within which an applicant might apply for leave to appeal to the Supreme Court. In Matsqui Institution Disciplinary Board v. Martineau, F.C.A., No. A-500-77, June 26, 1978, Ryan J. of the Federal Court of Appeal refused such an application in the following terms:

This application, expressed as being brought pursuant to section 33 of the Federal Court Act, for an extension of time within which the applicant may apply for leave to appeal to the Supreme Court of Canada from a judgment of this Court dated March 17, 1978, is dismissed, this Court lacking the authority to make such an order.

According to Mr. Mullins' submissions, the apparent gap means that there is no jurisdiction in this Court to grant an extension of time to bring an application for leave to appeal from a judgment of the Federal Court of Appeal. In support of the application, on the other hand, Mr. Juransz contends that the result of the apparent gap is that an application for leave to appeal can be brought at any time and, furthermore, that there is no jurisdiction in any court to extend time because there is no need for any such jurisdiction.

In my view, the absence of express statutory language does not create a complete jurisdictional gap. The combined operation of the Federal Court Act and the Supreme Court Act is such that an application for leave to appeal from a judgment of the Federal Court of Appeal must be brought before that Court or the Supreme Court within sixty days of the pronouncement of the judgment appealed from. The authority to extend this sixty-day period rests with a judge of the Federal Court of Appeal and not with the Supreme Court.

As I have noted, there is no express statutory language which provides for the above conclusion. Instead we are left with the task of inferring from the applicable statutes the rules which fill the apparent gap.

My reasoning may be summarized in the following steps:

1. An appeal to the Supreme Court from a judgment of the Federal Court of Appeal must be brought within sixty days of the pronouncement of the judgment appealed from (s. 33(1) of the Federal Court Act). Leave can be granted by the Federal Court of Appeal (s. 31(2)) or the Supreme Court (s. 31(3)). An extension of such time may only be granted by a judge of the Federal Court of Appeal (s. 33(1)).

2. There is no express rule which fixes a time period during which an application for leave must be brought. In my view the application must be brought within sixty days of the judgment appealed from since notice of the appeal itself must be filed within sixty days pursuant to s. 33(1). This view is based on an analogy with the Supreme Court Act:

(a) the then applicable s. 64(1) of the Supreme Court Act stated that except as otherwise provided, every appeal shall be brought within sixty days of the judgment appealed from;

(b) the then applicable s. 41(2) stated that an application for leave to appeal from a provincial court of appeal must be granted within the sixty-day period provided for in s. 64 or within thirty days thereafter or within such further extended time as the Supreme Court or a judge of the Court may fix or allow.

3. I may thus be assumed that the time period for granting an application for leave to appeal does not exceed the time period for bringing an appeal.

4. Given that the Federal Court Act, unlike s. 41(2) of the Supreme Court Act, does not provide for a time period exceeding the sixty days within which leave to appeal must be sought, it should therefore be concluded that the application for leave to appeal must be brought within sixty days of judgment of the Federal Court of Appeal.

5. A judge of the Federal Court of Appeal, who has the sole authority to extend the time during which the appeal may be brought under s. 33(1), also has the sole authority to extend time during which an application for leave to appeal can be brought beyond the sixty-day period for leave to appeal described above. With the greatest of respect for the contrary view expressed by Ryan J. in Matsqui, supra, such authority under s. 33(1) to extend the time within which an appeal may be brought. The Supreme Court or a judge of the Supreme Court has no such power.

The application for extension of time to apply for leave to appeal is therefore dismissed, this Court lacking the jurisdiction to make such an order.

I should add that if the applicant did obtain the necessary extension of time for leave to appeal from a judge of the Federal Court of Appeal, the judges of this bench who heard the application for leave to appeal on the merits are of the view that the application should be dismissed.

Judgment accordingly.

Solicitors for the applicant: Blake, Cassels & Graydon, Toronto.

Solicitor for the respondent: N. D. Mullins, Vancouver.

• Le Dain J. took no part in the judgment.