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James Grant Gordon (Applicant) v.
The Institutional Head of Matsqui Institution (Respondent)
Court of Appeal, Jackett C.J.—Ottawa, June 28, 1973.
Practice—Application for extension of time to review deci sion of tribunal—Procedure—Federal Court Act, s. 28; Rules 324(2), (3) and (4), 1107.
APPLICATION. SOLICITORS:
Farris, Vaughan, Wills and Murphy, Van- couver, for applicant.
Deputy Attorney General of Canada for respondent.
JACKETT CJ.—This is an application for extension of time for a section 28 application.
Such applications are governed by Rule 1107(1), which reads as follows:
Rule 1107. (1) Unless the Chief Justice, or a judge nominat ed by him, of his own motion or on an ex parte request, otherwise directs for special reason,
(a) an application under section 31(2) of the Act for leave to appeal from a judgment of the Court of Appeal to the Supreme Court of Canada that is being made as contem plated by Rule 1106(1)(d),
(b) an application for leave to appeal to the Court of Appeal, or
(c) an application to the Court of Appeal or to a judge thereof for an extension of time,
shall be made in the manner contemplated by Rule 324 and the provisions of paragraphs (2), (3) and (4) of Rule 324 shall be applicable to any such application as if it were made under paragraph (1) of Rule 324.
That rule must be read with paragraphs (2), (3) and (4) of Rule 324, which read as follows:
(2) A copy of the request to have the motion considered without personal appearance and a copy of the written representations shall be served on each opposing party with the copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1) may send representations in writing to the Registry and to each other party or he may file an application in writing for an oral hearing and send a copy thereof to the other side.
(4) No motion under paragraph (1) shall be disposed of until the Court is satisfied that all interested parties have had a reasonable opportunity to make representations either in writing or orally.
This application was made, in disregard of the above Rules, in the following terms:
TAKE No TICE that the Court will be moved on behalf of James Grant Gordon, the applicant herein, at Vancouver, in the Province of British Columbia, on Monday, the 9th day of July, 1973, at the hour of 10:30 o'clock in the forenoon for an Order extending the time within which the Applicant may make an application to review the decisions and orders of the Respondent made on the 15th day of June, 1972 and the 21st day of September, 1972, whereby sixty days of the statutory remission credited to the applicant under the Peni tentiary Act, was forfeited.
AND FURTHER TAKE NOTICE that in support of this applica tion for the extension of time will be read the Affidavit of James Grant Gordon, sworn on the 13th day of June, 1973 and filed herein and such further and other material as Counsel may advise.
In the absence of "special reason", an application must be made as required by Rule 1107(1). It will be time enough to consider a request for an oral hearing when it is deter mined that the application is not going to be granted on the written submissions. If the Court so determines, and there is included a request for an oral hearing, the Court will give serious consideration to such request but it must, of course, be supported by some substantial reason for concluding that, in the circumstances of the particular case, the applicant cannot adequately present his application in writing.
Similarly, a party opposing an application to which Rule 1107(1) applies may, with his representations in writing under Rule 324(3), make a request for an oral hearing if it is decid ed that the application is otherwise going to be granted on the written submissions, and in any such case, the Court will of course give serious consideration to the request for an oral hearing before granting the application but the request for an oral hearing must, of course, be support ed by some substantial reason for concluding that, in the circumstances of the particular case, the party cannot adequately present his position in writing.
The Notice of Motion in this case was made presentable in Vancouver on July 9 next although no arrangement had been made for a Court to be sitting in Vancouver on that date. Having regard to the fact that the Notice of Motion was filed in disregard of the Rules, there will be no Court available to hear the motion at that time. The motion may be renewed in accordance with Rule 1107(1).
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