Judgment of the Court
The judgment of the Court was delivered by
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)).
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.
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.
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.
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.
Footnotes
- [1] * Le Dain J. took no part in the judgment.
Cases cited
- Matsqui Matsqui, supra ¶ 5