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Appeals - Time Extension - General. Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considers a late delivery of a CJA s.21(5) panel set aside of a motion [R61.16(6) requires it to be filed "within four (4) days of the order being made", it was done in 14 days]:[8] CP seeks an extension in time and to have its motion heard. CP submits that it erroneously believed it had 15 days to serve its motion and that a ten-day delay causes no prejudice to Teamsters Canada. CP filed an affidavit in support of its motion to extend time stating that counsel to CP obtained instructions to proceed with an appeal on February 16, 2023, three days after the decision of the motion judge. At that time, counsel believed that this was a final decision, which would be appealed to the Court of Appeal with leave, in which case CP would have had 15 days to file its notice of motion for leave to appeal. He gave instructions regarding preparation of materials based on that belief. Counsel discovered the error on February 23, 2023 and by February 27, 2023 CP had filed the motion materials in this court.
[9] Teamsters Canada submits that the failure to file this motion on time is part of CP’s pattern of failing to meet timelines or adequately attend to the rules of this court. In the absence of a compelling explanation, Teamsters Canada submits that the extension should be denied, and the motion dismissed at the outset.
[10] A decision to extend time for late filing is an exercise of discretion. It should be informed by the reasons for the delay, any prejudice to a party, the merits of the motion and whether the moving party formed an intention to move to vary the order. In this case, there is a reasonable explanation for the delay, the time of delay is short and there is no evidence of prejudice to the responding party.
[11] I conclude that the court should exercise its discretion to hear the motion.
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