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80-A-323
Westclox Canada Limited, Hunter Enterprises Orillia Limited, Dicon Systems Limited and Tellus Instruments Limited (Applicants)
v.
Pyrotronics of Canada Limited (Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.— Ottawa, June 12, 1980.
Customs and excise — Application for extension of time within which to apply for leave to appeal and motion for leave to appeal from decision of Tariff Board — Whether or not leave to appeal must be obtained and filing and service of a notice of appeal must be effected, within sixty days from the making of the order — Whether or not time for obtaining leave to appeal may be extended after expiry of period of time to be extended — Application and motion dismissed — Customs Act, R.S.C. 1970, c. C-40 as amended, s. 48(1)(c) — Federal Court Rule 2(2) — Interpretation Act, R.S.C. 1970, c. I-23,
s. 11.
APPLICATION for extension of time within which to appeal and motion for leave to appeal.
COUNSEL:
A. de Lotbiniére Panet, Q.C. for applicants.
John D. Richard, Q.C. for respondent. SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall, Ottawa, for applicants.
Gowling & Henderson, Ottawa, for respond ent.
The following are the reasons for order ren dered in English by
HEALD J.: I agree with counsel for the respond ent that paragraph 48(1)(c) of the Customs Act, R.S.C. 1970, c. C-40, as amended, requires per sons in the position of these applicants, to both obtain leave to appeal and to file and serve a notice of appeal within 60 days from the date of the making of the order, finding or declaration. Since the applicants have neither obtained leave to appeal, nor filed a notice of appeal within the 60-day period set out in paragraph 48(1)(c), they have failed to comply with the provisions of that paragraph.
I also agree with respondent's counsel that this Court cannot extend the time for obtaining leave to appeal and filing the notice of appeal under said paragraph 48(1)(c) since the period of time to be extended no longer exists—that is—there is no time period remaining for the Court to extend.
The applicants submit that Rule 2(2)' of this Court, enables the Court to extend the time for obtaining leave to appeal. In my view, that Rule does not assist the applicants here. That Rule has reference to "the substantive law" and could not operate to enable the Court to ignore the clear words of a statutory enactment. The applicants also cite section 11 of the Interpretation Act, R.S.C. 1970, c. I-23. In my view that section, likewise, does not assist these applicants. A requirement to give to a statute: "... such fair, large and liberal construction and interpretation as best ensures the attainment of its objects" would not empower a Court to ignore the clear and unambiguous mandate set out in said paragraph 48(1)(c) of the Customs Act.
The applicants make the following further submission:
Pursuant to section 48(1) of the Customs Act, R.S.C. 1970, c. C-40, the Applicants herein have sixty days to institute an appeal. However, since leave to appeal must be obtained from this Honourable Court within the sixty day time period and since the rules of natural justice require that the other parties be allowed to file submissions to the application for leave to appeal and allow the Applicant a reply to those submissions, and further, since this Honourable Court must be allowed time to consider the application for leave to appeal, it is clear that the sixty day time period is not within the Appellant's control. If the Respondent is correct in saying that this Honourable Court cannot grant an extension of time, then the effect of the Respondent's Submission is that the sixty day time period in section 48(1) of the Customs Act, R.S.C. 1970, c. C-40 is something less and the Respondent is further saying, that in spite of Rule 2(2) and the Federal Court Act sub-sections 46(1)(c) and 46(2), this Honourable Court cannot ensure the proper working of the Customs Act.
The answer to this submission is that the appli cants could have requested, pursuant to Rule 1107, that their application for leave to appeal be heard
Rule 2(2) reads as follows:
Rule 2....
(2) These Rules are intended to render effective the sub stantive law and to ensure that it is carried out; and they are to be so interpreted and applied as to facilitate rather than to delay or to end prematurely the normal advancement of cases.
orally and would undoubtedly, in the circum stances, have been able to obtain an early date for the hearing of the application for leave. It is therefore not correct to suggest that these appli cants had lost control of the situation or that the Court is unable to ensure the proper working of the Customs Act.
For these reasons, the application for extension of time within which to apply for leave to appeal, as contained in applicants' counsel's letter of May 15, 1980 is dismissed and the applicants' motion for leave to appeal is also dismissed.
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URIE J.: I agree.
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RYAN J.: I agree.
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