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Limitations - Peremptory Orders. Koch v. Borgatti Estate
In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered the effect of a peremptory procedural order on the basic extension for time test:[26] Rather, said the Federal Court, because the order was peremptory, the elevated test stated in 1395047 applied, and Mr. Brudek had to show that he had no intention to ignore or flout the July orders and that the failure to comply was due to extraneous circumstances beyond his control, citing Angloflora Ltd. v. Canada Maritime Ltd., 2002 FCT 1230; 1395047; and Sarasin consultadoria E. servicos LDA v. Roox's Inc., 2003 FC 959, aff’d 2003 FC 1010 [Sarasin].
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[SS: on appeal it was held that no peremptory order was made]
[58] However, even absent a reasonable explanation for the delay, Mr. Brudek nonetheless may succeed because no Hennelly factor is determinative and the overarching consideration and real test is whether justice will be done between the parties if the extension is not granted.
[59] This requires the interests of the parties to be balanced, something the Federal Court failed to do, notwithstanding that this principle applies equally to peremptory orders: Jourdain v. Ontario (2008), 2008 CanLII 22130 (ON SC), 91 O.R. (3d) 465, 167 A.C.W.S. (3d) 498 (ONSC), citing Hytec Information Systems Ltd. v. Coventry City Council, [1996] E.W.J. No. 3603 (C.A. (Civ. Div.); Conway (Re) 2016 ONCA 918. Rather, while finding no prejudice, and expressing sympathy for Mr. Brudek, the Federal Court concluded that it was "“not in the interest of justice to grant”" the motions but rather, "“given the clear language”" of the July orders, "“it was in the interest of justice to protect the stability and finality of decisions”".
[60] Thus, for the Federal Court the determinative factor appears not to have been justice between the parties, but rather the stability and finality of court decisions. While that is obviously an important principle, in the context of a timetable order that is not peremptory, and in the face of Rule 8 which expressly contemplates extensions of time, it cannot be determinative. . Koch v. Borgatti Estate
In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered when a procedural order is peremptory:A. Was paragraph 7 of the July 2021 Orders Peremptory?
[41] In my view, the Federal Court erred when it determined that paragraph 7 of the July orders is peremptory.
[42] In asking itself whether paragraph 7 was peremptory, the Federal Court focussed only on the language of paragraph 7 and, in particular, the consequence of missing the deadline—a party who fails to make the filing on time "“shall be forever barred from claiming”" and "“any right of action shall be extinguished”". Nothing in its speaking orders suggests the Federal Court considered the circumstances in which the July orders were issued or the language of the July orders as a whole. This was an error of law.
[43] While there is no definition per se of a peremptory order, the jurisprudence teaches that a peremptory order is an order of last resort. As explained in Inmates of Mountain Prison v. R., [1998] F.C.J. No. 1064, 81 A.C.W.S. (3d) 765 [Inmates] at para. 4:Peremptory or “unless” orders are generally only made when a party has already failed to comply with a requirement, rule or order and the court is satisfied that the time already allowed is sufficient in the circumstances. [44] Consistent with this jurisprudence in the Federal Court and in this Court peremptory orders are typically made only after repeated failures to meet deadlines established by the Court or the Rules. See, for example, Woo v. Canada (National Parole Board), 1998 CanLII 8274 (FC), [1998] F.C.J. No. 1248, 153 F.T.R. 147; Symbol Yachts Ltd. v. Pearson, 1996 CanLII 4020 (FC), [1996] 2 FC 391, 107 FTR 295; LS Entertainment Group Inc. v. Kalos Vision Ltd. and Kalos Ltd., 2001 FCT 1000; Canadian National Railway Co. v Norango (The), [1976] 2 F.C. 264, 1976 CanLII 2384 (FCA); Commercial Union Assurance Co. plc. v. M. T. Fishing Co., [1999] F.C.J. No. 1405, 91 A.C.W.S. (3d) 511; Lewis v. Canada (Correctional Service), 2015 FC 118; Canada (Attorney General) v. Fabrikant, 2019 FCA 174; and Smithkline Beecham Corporation v. Pierre Fabre Médicament, 2004 FCA 441.
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