IMM-1023-97
MONTRÉAL, QUEBEC, THIS 7th DAY OF MAY 1997
PRESENT: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
MALPICA VILCAPUMA CLARA,
Applicant,
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
O R D E R
The Motion for an extension of time is dismissed.
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
IMM-1023-97
BETWEEN:
MALPICA VILCAPUMA CLARA,
Applicant,
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
RICHARD MORNEAU,
PROTHONOTARY:
This is a motion by the applicant under subsection 21(2) of the Federal Court Immigration Rules, 1993 (the "Rules") for an extension of the time for serving and filing his record under subsection 10(1) of the Rules. This motion was made to the Court under Rule 324 of the Federal Court Rules which provides that a motion may be disposed of without personal appearance of a party or the party's solicitor and upon consideration of representations in writing.
The facts
On March 12, 1997, the applicant filed an application for leave and for judicial review of a decision of the Refugee Division dated February 18, 1997.
Under Rule 10, the applicant had until April 11, 1997, to perfect his application for leave, which he did not do.
On April 17, 1997, after the deadline had passed, the applicant filed a motion for an extension of time seeking leave to file his record after the time allowed.
In the motion for an extension of time, counsel for the applicant says simply, in the third paragraph, only that [translation] "the deadline was calculated incorrectly by the firm's secretarial employees".
The law
It is settled that the Court starts with the principle that the time limits set out in the rules are meant to be complied with.1 Accordingly, as Strayer J. (as he then was) pointed out in Beilin,2 in an application for an extension of time:
| ... [A]n applicant must show that there was some justification for the delay throughout the whole of the period of the delay and that he has an arguable case (see e.g. Grewal v. M.E.I., [1985] 2 F.C. 263, 63 N.R. 106 (F.C.A.)). |
(Emphasis mine)
With respect, more specifically, to the question of what explanations would establish that it was not possible to comply with the whole of the time limit set out in subsection 10(1) of the Rules, resulting in the need for an extension of time, Reed J. of this Court pointed out in Chin that there must be
| ... some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event.3 |
According to Reed J., this kind of standard is required in the interests of fairness to parties and counsel who make an effort to comply with the time limits set out in the Rules.4
Where the Court is satisfied in a case that the time limit in rule 10 has been interrupted or significantly affected by an unexpected or unforeseen event, it may exhibit indulgence to an applicant and grant him or her an extension of time. It is accepted that the need for indulgence in these cases is often prompted by the very conduct of the applicant's counsel.
It will be understood that in those circumstances, fairness means that the twofold test in Beilin is more often not mentioned, while not necessarily being ruled out.
Does this case really involve an unexpected event? I am not at all satisfied of this, for the following reasons.
Less than seven months before, counsel for the applicant approached the Court in two other cases (file nos. IMM-2905-96 and IMM-2943-96) seeking extensions of the time allowed by Rule 10 for the same reason as he has stated here. In fact, we were told in those two cases that the issue was an error in calculating the days when the time started to run. Here, the affidavit simply says that there was an error in calculating the time without giving any other details as to the circumstances in which the error occurred.
Showing the indulgence referred to earlier, I gave the applicant until October 8, 1996, in each of those cases " an extension of four days.
However, I was careful in each of those cases to note the following:
[translation]
| HAVING REGARD TO the affidavit filed in support of this motion, which refers to an error that cannot occur again; |
(Emphasis mine)
It was to be hoped that counsel for the applicant and the person responsible for his secretarial work " who was also in that position at the time of the orders of October 8, 1996 " would take note of those orders when they were received and have regard to them in future. Obviously this was not the case.
Accordingly, it is impossible for me to conclude here that there was some "unfortunate error" in the nature of an unexpected event, even though the error here amounted to one day.
This brings us to the elements of the test in Beilin, and on this point it need only be pointed out that on the second element of the test, neither the applicant nor even his counsel gave any details, by affidavit, of whether the case is arguable on the merits.
For these reasons, this motion will be dismissed.
Lastly, counsel for the applicant contends, in paragraph 4 of the motion, that the applicant should not be prejudiced by the error made at the law firm. Undeniably, this is an unpleasant situation for the applicant. Nonetheless, on this point, I adopt the following comments of the Court in chin:
| I know that courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purpose are one. It is too easy a justification for non-compliance with the rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced.5 |
Richard Morneau
Prothonotary
Montréal, Quebec
May 7, 1997
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court file No. IMM-1023-97
between
MALPICA VILCAPUMA CLARA,
Applicant,
" and "
MINISTER OF CITIZENSHIP AND
IMMIGRATION,
Respondent.
REASONS FOR ORDER
| FEDERAL COURT OF CANADA |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| COURT FILE NO: IMM-1023-97 |
| STYLE OF CAUSE: MALPICA VILCAPUMA CLARA, |
| Applicant, |
| and |
| MINISTER OF CITIZENSHIP AND |
| IMMIGRATION, |
| Respondent |
| MOTION CONSIDERED IN WRITING AT MONTRÉAL WITHOUT APPEARANCE OF THE PARTIES |
| REASONS FOR ORDER BY: Richard Morneau, Prothonotary |
| DATE OF REASONS FOR ORDER: May 7, 1997 |
| WRITTEN REPRESENTATIONS BY: |
| Georges Labrecque for the applicant |
| Ian Hicks for the respondent |
| SOLICITORS OF RECORD: |
| Georges Labrecque for the applicant |
| Montréal, Quebec |
| George Thomson for the respondent |
| Deputy Attorney General of Canada |
| Department of Justice Canada |
| Montréal, Quebec |
1 See Chin v. Canada (Minister of Employment and Immigration) (1994), 22 Imm. L.R. (2d) 136, 186 ("Chin").
2 Beilin v. Minister of Employment and Immigration (1995), 88 F.T.R. 132.
3 Supra, note 1.
4 Ibid.
5 Id., p. 139.