Date: 19980604
Docket: IMM-55-98
OTTAWA, ONTARIO, THE 4th DAY OF JUNE 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
VANDANA GUPTA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The appeal is dismissed.
Judge
Certified true translation
Peter Douglas
Date: 19980604
Docket: IMM-55-98
Between:
VANDANA GUPTA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] In this motion, the applicant appeals the decision of Prothonotary Richard Morneau dated March 12, 1998, in which he dismissed the applicant"s application for an extension of time to file and serve her record.
[2] It is an established fact that on January 7, 1998, the applicant, representing herself at the time, filed an application for leave and for judicial review of a decision by the Refugee Division dated December 17, 1997. Under Rule 10 of the Federal Court Immigration Rules, 1993 (the Rules), the applicant had until February 6, 1998 to perfect her leave application, which she did not do on time. As a result, on February 17, 1998, the respondent sent the applicant a copy of a letter to the Administrator of the Federal Court in which she requested that the leave application be disposed of.
[ 3] On February 25, 1998, that is, nearly three weeks after the expiration of the prescribed time, the applicant, now through counsel, served a motion for an extension of time on the respondent. In her affidavit in support of the motion, the applicant explained the delay by stating that she was unaware of the periods provided for in the Rules.
[4] The Prothonotary who heard this motion in writing under Rule 324 of the old Federal Court Rules dismissed it for the reasons set out in the respondent"s representations. In her representations, the respondent pointed out that the courts have consistently held that the applicant must give a reasonable explanation for the delay and satisfy the Court that her application for judicial review is based on serious arguments. The respondent submits that unawareness of the periods prescribed by the Rules does not constitute a reasonable explanation.
[5] The applicant bases her appeal on two grounds. First, she objects to the Prothonotary"s exercise of his power and, second, she challenges the validity of the power in question.
[6] Regarding the first ground, the applicant argues that the Prothonotary should not have disposed of the motion under Rule 324 without ensuring that the applicant was aware of all the facts and should have allowed her to submit representations in writing in response to the respondent"s representations. The respondent herself obtained an extension of time by means of a direction by a judge of this Court, although the applicant was not told about it. The applicant submits that the Prothonotary could not therefore proceed unless the applicant was informed of what had been [TRANSLATION] "plotted in her absence".
[7] The direction in the case at bar was by my colleague Mr. Justice Teitelbaum; he has already heard a motion by counsel for the applicant challenging the direction, and he dismissed it from the bench. Obviously, it is not open to me to hear arguments against this decision. Furthermore, the direction is immaterial in that it has absolutely nothing to do with the applicant"s failure to comply with the above-mentioned Rule 10.
[8] As for the second ground, the applicant submits that subsection 46(1) of the Federal Court Act (the Act), more specifically paragraph 46(1)(h), authorizes the rules committee to empower a prothonotary to exercise any authority or jurisdiction, subject to supervision by the Court, even though the authority or jurisdiction may be of a judicial nature. The applicant therefore argues that the rules committee could not use the Rules to delegate its power to the Chief Justice or the Associate Chief Justice under Rule 336 of the Federal Court Rules. Rule 336(1)(g) confers on a prothonotary the power to dispose of any interlocutory application assigned to him specially by special or general direction of the Chief Justice or of the Associate Chief Justice. The Prothonotary"s order is based on Rule 21(2), which was made by the Chief Justice pursuant to section 84 of the Immigration Act . Section 84 gives the Chief Justice the authority to make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review.
[9] The applicant further submits that the granting of judicial jurisdiction is not a matter of practice or procedure. Consequently, the power in question could not validly be conferred on the Prothonotary, since this delegation or authority did not lie within the province of the Chief Justice but came solely within that of the committee constituted for the purposes of the Federal Court Act.
[10] This second argument, which is based on the well-known principle delegatus non potest delegare, clever though it may seem, was already considered and dismissed by the Associate Chief Justice of this Court in Iscar Ltd. v. Karl Hertel GmbH et al.1 Jerome A.C.J. said that this does not constitute a subdelegation of power. It is clear from paragraph 46(1)(h) of the Federal Court Act that Parliament did not intend simply to grant a procedural power to prothonotaries. It granted them jurisdiction of a judicial nature. The exercise of this jurisdiction requires a Federal Court rule, in this case Rule 336, which gives a prothonotary the authority to dispose of any interlocutory application the Chief Justice or Associate Chief Justice assigns him or her. Basically, a prothonotary"s jurisdiction to hear interlocutory applications comes directly from the above-mentioned section 46. The power to exercise this jurisdiction is based on the above-mentioned Rule 336(1)(g ), although a prothonotary"s jurisdiction is not rooted in the Court"s rules but in the Act itself, namely paragraph 40(1)(h ).
[11] As already mentioned, counsel for the applicant also complained about the fact that the Prothonotary did not give her an opportunity to file an answer or reply to the respondent"s submissions. Rule 324 does not provide for an answer or reply. Rule 324 provides for only written representations by both parties. Strayer J., as he then was, stated very clearly in Lioubimenko2 that Rule 324 does not entitle the other party to a right of reply.
[12] This appeal is accordingly dismissed.
O T T A W A, Ontario
June 4, 1998
Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-55-98
STYLE OF CAUSE: VANDANA GUPTA v. MCI
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: MAY 25, 1998
REASONS FOR ORDER BY DUBÉ J.
DATED: JUNE 4, 1998
APPEARANCES:
MICHEL LE BRUN
FOR THE APPLICANT
IAN HICKS
FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN
FOR THE APPLICANT
IAN HICKS
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 27 F.T.R. 186, April 14, 1989.
2 IMM-93-94, April 8, 1994.