Date: 20060911
Docket: IMM-399-06
Citation: 2006
FC 1082
Ottawa, Ontario, September 11, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MARINAH BERGMAN
SARA MALKA GERSHON
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR ORDER AND ORDER
[1]
This is a motion
in writing under Rule 399 seeking to set aside my previous Order by which the
Applicants’ application for leave and for judicial review (leave application)
was dismissed. That previous Order was made because of the Applicants’ failure
to perfect their leave application by filing an application record as required
by Rule 10 of the Federal Courts Immigration and Refugee Protection Rules (Immigration
Rules), SOR/93-22.
[2]
The
Applicants filed their leave application on January 25, 2006 challenging a
decision of the Immigration and Refugee Board rendered on January 4, 2006. In
the affidavits filed in support of this motion, it is asserted that the
Applicants failed to perfect their leave application because their immigration
consultant, Mira Trakht, was unsuccessful in filing the application record
within the time required. According to Ms. Trakht’s affidavit, sworn on June
5, 2006, the application record was rejected by the Court Registry because it
was not in proper form. Upon being advised of this problem, Ms. Trakht did
nothing for several months. Eventually, she got around to consulting with
legal counsel and, early in June of this year, counsel attempted to file a
motion to extend time to file and serve the application record. That motion
was rejected by the Court Registry because, on April 4, 2006, I had
already dismissed the leave application.
[3]
The
present motion was not filed until August 1, 2006 and no explanation has been
given on behalf of the Applicants for the additional delay of almost two months
in seeking relief.
[4]
An
affidavit filed in support of the motion by a paralegal working in the office
of the Applicants’ legal counsel deposes as hearsay that Ms. Trakht reported
being unaware that the leave application had been dismissed by the Court on
April 4, 2006. However, Ms. Trakht’s affidavit is completely silent on this
point and the Court file indicates that a Certificate of the dismissal Order
was sent by registered mail to her office on April 7, 2006.
[5]
A fair
description of what took place here is that the Applicants’ representatives
have been derelict in handling this matter over the past six months. In the
case of Ms. Trakht, this was not a situation of an inadvertent error. She very
deliberately chose to do nothing with the full knowledge of her failure to
perfect the leave application since at least February, 2006. Certainly, there
was ample time between the aborted filing of the application record and the
dismissal of the application on April 4, 2006 to have brought a motion for an
extension of time.
[6]
The
Applicants’ motion record indicates that they are seeking relief under Rule 399
but they have argued the motion as though it was brought under Rule 21 of the Immigration
Rules for an extension of time. My earlier Order dismissing the leave
application constituted a final decision and no extension of time to file the
application record can be considered until such time as that Order is set
aside. The Applicants’ reliance on the Federal Court of Appeal decision in Grewal
v. Canada (Minister of
Employment and Immigration), [1985] 2 F.C. 263; 63 N.R. 106 dealing with
the Court’s discretion to extend time is, therefore, inapt.
[7]
The case
authorities indicate that it is only in the narrowest of circumstances that the
Federal Courts Rules permit an Order setting aside an earlier dismissal
of a proceeding: see Fernandez v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 909; [2001] F.C.J. No. 1287 (QL); and Boubarak v.
Canada (Minister of Citizenship and
Immigration), 2003
FC 1239 [2003] F.C.J. No. 1553 (QL);.
[8]
Under Rule
399, an Order may be set aside if a party can establish a prima facie case for
doing so, along with a failure to appear by reason of accident or mistake.
Relief is also available on the strength of matters arising or discovered
subsequent to the Order or for fraud.
[9]
Under Rule
397 the Court may reconsider an Order within ten days of making it if it does
not accord with the reasons given or where a matter was overlooked or
accidentally omitted.
[10]
Neither
Rule 397 nor 399 are available to assist the Applicants in the circumstances of
this case.
[11]
In the very
similar case of Vinogradov v. Canada (Minister of Employment
and Immigration), 77 F.T.R. 296; [1994] F.C.J. No. 647 (QL),
Justice Andrew MacKay was asked to reconsider his earlier dismissal of a leave
application. There, the delay in bringing the matter back before the Court was
only a matter of days and not, as in this case, months. Justice MacKay
dismissed the motion to reconsider and held that such relief could only be
granted “in very special circumstances” (see para. 2) and only where the proven
facts are sufficient to come within the applicable rules. He concluded his
decision with the following observations:
11 I appreciate some of the
difficulties for the applicants acting without representation of counsel in
seeking access to the process for review of the decision by the CRDD in their
case. Nevertheless, they must comply with the rules applicable to the process.
12 I note this result is consistent
with that in Ansomah v. Canada (M.E.I.), Unreported, Court file A-1261-90,
April 25, 1990, (F.C.A.) where the Court of Appeal dismissed an application for
an extension of time to file written representations in support of an
application for leave to commence an application for judicial review, where the
application for an extension of time was brought after the application for
leave was dismissed.
13 Because no basis is submitted by
the applicants which would justify reconsideration of the order made on October
14, 1993, and no satisfactory grounds are here submitted for exercising
discretion to permit late filing of an application record, the Order of October
14 must be considered final.
[12]
In Pistan
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 774; [2001] F.C.J.
No. 1132 (QL);, Justice MacKay also dealt with a motion to reconsider an
earlier Order for dismissal for failing to perfect an application for leave and
for judicial review. The excuse offered was that the applicant had difficulty
retaining legal counsel. That motion was dismissed on the following basis at
paras. 4 to 6:
4 The motion makes reference to Rule
399(1)(b) of the Federal Court Immigration Rules, 1998. That Rule
provides authority for the Court, on a motion, to set aside or vary an order
that was made "in the absence of a party who failed to appear by accident
or mistake or by reason of insufficient notice of the proceeding". No
facts are alleged that would provide a basis for the Court to now set aside its
Order of May 23, 2001, under that Rule.
5 Further, the facts alleged do not
bring the circumstances of the applicant's case within Rule 397, the usual
basis for a motion for reconsideration. That Rule provides that within ten days
after the making of an order or such further time as the Court may allow, a
party may serve and file a motion requesting reconsideration on grounds that
the order does not accord with the reasons given, or that a matter that should
have been dealt with has been overlooked or accidentally omitted. Those are not
the circumstances here.
6 Inability to qualify for legal aid
and inability to retain counsel because of limited finances are not acceptable
explanations for delay that would warrant an extension of time to file a motion
or a motion record in accord with the Court's Rules. While an individual may be
well advised to have counsel to represent him or her in judicial proceedings,
he or she may also self-represent as the applicant in this case now appears
ready to do. Failure to do so earlier, and a decision to do so now, is not a
basis for the Court to grant an extension of time. There simply is no basis for
the Court to set aside its Order of May 23, 2001.
[13]
In the
case of Cove v. Canada (Minister of Citizenship and Immigration), 2001
FCT 266; [2001] F.C.J. No. 482 (QL);, Justice Denis Pelletier dealt with an
application to extend time to file an application for judicial review based
upon allegations of negligence on the part of an immigration consultant. He
refused to grant relief on that basis and held at para. 10 that clients will be
bound by the negligence and mistakes made by their representatives:
10 If individuals are going to hold
themselves out as skilled in immigration matters and, as is increasingly the
case, adopt the designation of "counsel", then they will be held to
the same standard as those who customarily appear before the Court. The
consequences to their clients of non-performance will be the same as it is for
clients of the immigration bar. There is no reason why the Court should
shelter consultants from negligence claims by overlooking their mistakes.
Members of the immigration bar pay large liability insurance premiums for
coverage which is subject to being called upon every time a court refuses to
gloss over their mistakes. To apply a different standard to consultants is to
subsidize their competition with the immigration bar.
[14]
The
apparent failings by the Applicants’ representatives in this case similarly do
not bring their situations within the scope of the Rules which permit the Court
to set aside its previous orders. I would add to this that, even if I had the
authority to extend time to allow for the late filing of the application
record, I would not do so on the facts presented. The long delays in bringing
this matter before the Court have not been adequately explained, nor have the
Applicants established that they have an arguable case on the merits. Notwithstanding
their alleged fear, the likelihood that the Applicants can establish
meritorious claims to refugee protection given their right of return to Australia seems, at best, remote.
Although the Applicant, Sara Gershon, may not be an Australian national, it is
apparent from the materials filed that she has lived there with her mother for
a number of years. There is no indication given that establishes that she
would not have the legal right to return to that country in the company of her
mother.
[15]
In the
result, this motion to set aside the Court’s Order of April 4, 2006 is
dismissed.
ORDER
THIS COURT ORDERS that the Applicants’ motion under
Rule 399 is hereby dismissed.
"R.
L. Barnes"
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