Boubarak v. Canada (Minister of Citizenship and Immigration), 2003 FC 1239

Date: 20031022

Docket: IMM-1376-03

Docket: 2003 FC 1239

Ottawa, Ontario, October 22, 2003

Present: The Honourable Mr. Justice Blais

BETWEEN:

                                                MOHAMED AMINE BOUBARAK

                                                                                                                                            Applicant

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

                                              AND IMMIGRATION OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

FACTS

[1]                On March 3, 2003, Mr. Mohamed Amine Boubarak (the moving party) filed an application for leave for judicial review. The moving party is represented in this matter by counsel Mr. Jean Baillargeon. He seeks judicial review of a decision by Mr. Michel Jobin of the Immigration and Refugee Board, dated February 12, 2003, dismissing the refugee claim of the applicant (the moving party in this proceeding).

[2]                According to rule 10 of the Federal Court Immigration and Refugee Protection Rules (FCIRPR) the application for leave shall be perfected within 30 days after filing the application, which means in this case that the deadline for service and filing was April 2, 2003.

[3]                The moving party's counsel sent the applicant's record to the bailiff on April 2, 2003. The bailiff filed it at the Court and served it upon the Minister of Citizenship and Immigration (the respondent) the following day, April 3, 2003.

[4]                Although it had been filed at the Registry of the Federal Court, the applicant's record was not filed in the applicant's file because it was out of time and the Court had not granted leave to file.

[5]                On April 29, 2003, having been informed that there was no record to support the application for leave for judicial review, I made an order to dismiss the application because there was no record.

[6]                The moving party's counsel was informed of this order on May 26, 2003. On May 28, 2003, his counsel filed a motion to reconsider under rule 397 of the Federal Court Rules, 1998 (the Rules) to which he attached his own affidavit, alleging the following facts:

[Translation]

Neither he or the bailiff responsible for the service of the record upon the Court were informed that the Court would not accept the record submitted one day late. He had served the record on the bailiff on April 2, 2003, to be filed the same day. It was not until May 26, 2003 that he was informed of the Court's decision to dismiss the application for leave.

[7]                This is a motion to reconsider the order dated April 29, 2003.

SUBMISSIONS BY THE PARTIES

The moving party

[8]                The moving party is asking the Court to reconsider my decision dated April 29, 2003, dismissing the application for leave for judicial review because there was no record in support of the application.

[9]                He alleges that pursuant to rule 397 of the Rules, the Court can reconsider the order of April 29, 2003 because an error was made, i.e. the record was filed on April 3, 2003 when it had been sent on April 2, 2003, which was not the fault of moving party or of his counsel.

[10]            There will be serious prejudice to the moving party if he is precluded from filing his memorandum of argument. Further, the record was served in due form a single day late.

[11]            The moving party therefore asks the Court to deem that the filing of the record on April 3, 2003 was valid and done within the prescribed time limits.

The respondent

[12]            The respondent has found a large number of faults in the motion filed that taint the motion and make it inadmissible.

[13]            Neither rule 397, cited by the applicant, nor rule 399 for that matter can be used as a basis for this motion. Rule 397 allows it to be reconsidered but under very limited conditions: either that the order does not accord with any reasons given for it, or that a matter that should have been dealt with has been overlooked. Further, rule 397 requires that the motion to reconsider be presented within 10 days after the making of the disputed order, unless the Court has given leave to extend this period.

[14]            As for rule 399, it does not apply either because this does not involve a motion decided ex parte, or a decision made in the absence of the parties for the reasons provided in rule 399. Further, there is no fraud or a new matter that arose subsequent to the making of the order.

[15]            Moreover, the respondent argues that the affidavit filed in support of the motion must be struck in its entirety pursuant to rule 82 of the Rules. This rule provides that a solicitor cannot both depose to an affidavit and present argument to the Court based on that affidavit.

If the affidavit is struck, the motion must be dismissed for substantive defect.

[16]            Finally, the motion does not explain why the request for extension of time was not

made before May 26, 2003, despite the fact that the solicitor knew or ought to have known by April 3, 2003, that his record had been filed late.

ISSUES

[17]            Can the decision made on April 29, 2003, be set aside, and can the Court grant leave for the service and filing of the application record outside the time limit?

STATUTORY PROVISIONS

Federal Court Rules, 1998

Federal Court Immigration and Refugee Protection Rules

ANALYSIS

[18]            This motion is inadmissible because the Court would be exceeding its jurisdiction in granting it. It is never easy to make such a decision, because it forces us to confront the rationale of the Rules, which are supposed to serve justice and the litigant's right to fairness. In the case before us, an applicant loses the opportunity to make an application for judicial review to the Court. He is deprived of a right because of his counsel's lack of diligence.

[19]            The Rules exist so that the system can function. They provide a certain latitude. It happens that a deadline is missed, that a document is not filed, that an application is not in the perfect format. The Court certainly has the power to forgive human error in order to ensure that the Rules do not hinder the fair and equitable resolution of the problems before it. But the Court cannot do the impossible. It cannot deviate from the Rules to the point that they lose their meaning. The gravity of the errors made in this case tip the balance, in the end. Let us first see why the application is inadmissible and then we will briefly address the issue of fairness.

[20]            An initial error was made when the record was not served and filed within 30 days after the filing of the application for leave pursuant to rule 10 of the FCIRPR. The moving party's counsel knew that the application had to be perfected on April 2, 2003. He gave the record to a bailiff on April 2, 2003, to file and to serve on the respondent. The record was not served and filed until April 3, 2003.

[21]            Counsel knew or ought to have known that the record was one day late as of April 3, 2003, when he received proof of service from the bailiff. Even so - second error - he did not attempt to apply for an extension of time so that the record would be accepted. Yet, rule 21 of the FCIRPR is clear: without the leave of a judge or prothonotary of the Court the time limit cannot be extended.

[22]            Third error: he was not concerned about what happened to the record - was it allowed by the Court or not? The Court was called upon to make a decision on the application for leave on April 29, 2003. Without a record, the application for leave was dismissed.

[23]            When the moving party's counsel learned, on May 26, 2003, of the existence of the order dismissing the application for leave, he then acted diligently and promptly: a motion to reconsider was filed at Court on May 28, 2003.

[24]            Unfortunately, the errors continued. In support of his motion, counsel deposed his own affidavit, thereby contravening rule 82 of the Rules. Rule 82 provides that we can make an exception for him, but only with leave of the Court. Counsel did not apply for this leave.

[25]            Counsel relies on rule 397 of the Rules as a means to have the order of April 29, 2003, set aside. This rule provides that a motion to reconsider be made within ten days after the order; once again, the time limit can be extended only with the Court's leave. Rule 397, as drafted and interpreted in the caselaw, is quite limited in scope. Counsel does not indicate in his memorandum how it must apply in this case.

[26]            Finally, counsel does not indicate how the criteria developed in the caselaw to justify an extension of time should be applied to the moving party.

[27]            The moving party relies on rule 397, simply alleging that there was an error. However, the error contemplated by rule 397 is to be understood in the sense of an error that inadvertently shows up in the drafting process. Filing the record one day late is not an error, but a default. Rule 397 is not meant to be used to remedy the default of a party.

[28]            Paragraph 397(1)(b) does not help the moving party, either. This provision provides that reconsideration is possible when a matter that should have been dealt with has been overlooked or accidentally omitted. In Canada (Minister of Citizenship and Immigration) v. Dhaliwal-Williams, [1996] F.C.J. No. 730, Mr. Justice Noël held that because he was not informed about a document sent to the Registry (a letter in which the respondent's counsel indicated his intention to reply to the notice of motion) he could reopen a decision that he had made on the extension of a time limit.

[29]            In this case, the Court was not informed that the record had arrived a day late. This piece of information could have affected the decision. However, the reason why this information was not brought to the Court's attention in the time required was, once again, the lack of diligence of counsel for the moving party in ensuring that the Court had the information necessary for its decision. If a request for extension of time had been made, the Court would have been seized of it when it made the order dated April 29, 2003.

[30]            Rule 397 is not meant to bring an item of information to the judge's attention that counsel forgot at the time of the hearing. It is intended, rather, for situations in which the judge, for whatever reason, does not consider an important factor at the time he makes his decision when this factor was already in the record - Boateng v. Canada (Minister of Employment & Immigration) [1990] F.C.J. No. 472:

In my opinion, the failure of a party to include available material does not give rise to jurisdiction to reconsider a decision finally disposing of a matter. That rule contemplates oversight on the part of the Court, not a party, (...)

[31]            In Vinogradov v. Canada (Minister of Employment & Immigration), [1994] F.C.J. No. 647, Mr. Justice MacKay dismissed the request for extension of time presented after the order dismissing the application for judicial review because there was not a satisfactory explanation for the moving party's delay in requesting the extension of time. In determining the matter, MacKay J. did not have the information that could justify the extension. Rule 337 at that time, now rule 397, did not allow him to grant the extension after the fact. I believe that this reasoning applies in this case as well.

[32]            In his decision, MacKay J. refers to Ansomah v. Canada, unreported, Registry No. 90-A-1261, April 25, 1990 (F.C.A.). In that case, the Court of Appeal had dismissed an application for an extension of the time limit to file the record in support of an application for leave for judicial review for the simple reason that the request for extension was made after the application for leave had been dismissed.

[33]            The other rule that provides for setting aside a decision is rule 399, but here again the rule is difficult to apply in the circumstances of this case. This is not an ex parte motion, this is not a case where the party did not appear because a notice was not issued, or a case of fraud or a matter that arose subsequent to the making of the order. The fact that the Court was informed after the fact that the record was one day late does not amount to a "new matter that arose". Again, it was known at the time of the judgment of April 29, 2003 and it was not brought to the Court's attention because of counsel's carelessness.

[34]            I do not think it is necessary to address the issue raised by the affidavit in order to make a decision on the motion. We need simply recall rule 82 which states quite clearly that "[e]xcept with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit." In Martineau v. Minister of National Revenue, [2002] F.C.J. No. 111, I had occasion to address the problem of the affidavit of a solicitor in the proceedings. The rule exists and there must be solid grounds to deviate from it. None have been advanced here.

[35]            The moving party's attempt to have the decision of April 29, 2003, reconsidered must fail because the motion to reconsider simply does not fall within the powers of the Court. The Court does not have jurisdiction to decide on the motion to reconsider because there is no rule or section that gives it jurisdiction to do so. The Rules cannot be used to correct a failure to respect the deadlines. The decision of April 29, 2003 was based on the facts - or rather the absence of facts. All the moving party had to do at that point was to come before the Court with a request for extension of time.

[36]            Furthermore, if the matter is looked at from the perspective of a request for extension of time, we should remember the criteria set out by the Federal Court of Appeal in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846, to determine if a moving party should be entitled to an extension of time:

[3]            The proper test is whether the applicant has demonstrated

1.              a continuing intention to pursue his or her application;

2.              that the application has some merit;

3.              that no prejudice to the respondent arises from the delay; and

4.              that a reasonable explanation for the delay exists.

[4]            Any determination of whether or not the applicant's explanation justifies the granting of the necessary extension of time will turn on the facts of each particular case.

[37]            In this case, we cannot say that there is a reasonable explanation that justifies the delay. The moving party's counsel knew, or ought to have known, that the record had been filed one day late. Rather than taking the initiative and requesting an extension of time, he hopes against hope that the record will be accepted despite everything. This is what his affidavit suggests - neither the bailiff nor counsel nor the moving party received any indication from the Court that the record had not been accepted. But it was counsel's responsibility to ensure that the file was in order. He did not do so.

[38]            A final order was made on April 29, 2003, that dismissed the application for leave for judicial review. I cannot see anything in the Rules or in the facts that would allow me to vary this order.

[39]            The result is unfortunate. Because counsel failed to respect the time limits and procedure, the moving party is deprived of recourse. Waldman in Immigration Law and Practice (Buttersworth Canada 1992, incl. Service Issues 1993-2003) foresees this possibility and warns counsel and applicants:

§ 11.88 It is essential that counsel apply for an extension of time to file the record before the expiry of the prescribed time period. Otherwise, the court may well proceed without the supporting material and the application could be dismissed. Once the application is dismissed, the court would not have the jurisdiction to extend the time as the matter would have been finally disposed of.

§ 11.89 Counsel should be cognizant of the serious consequences that will befall an applicant if the application is not perfected within the time prescribed by the rules. As noted above, the Federal Immigration and Refugee Protection Rules provide that, if a party fails to comply with any of the time limits prescribed, the Court may, without further notice, dispose of the application. If no material is filed in support of an application for leave, then the court would have no alternative but to dismiss the application. This could lead to serious consequences of the applicant and to his or her counsel.

[40]            There is still the issue of equity for the moving party. Should he be punished for his counsel's incompetence? I do not believe I have to resolve this problem in the context of this application, the outcome of which is clear. I believe, however, that it is important to say a few words about what is at stake when recourse is lost because of counsel's carelessness.

[41]            In Chin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1033, Madam Justice Reed writes at paragraph 10:

Counsel and client for such purposes 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.

[42]            In this case, Reed J. refused to grant an extension of time to file a record in support of an application for leave because she found that the counsel's reason was frivolous.

[43]            In Mathon v. Canada (Minister of Employment and Immigration), [1998] F.C.J. No. 707, however, Pinard J. addressed the protection conferred by section 7 of the Canadian Charter of Rights and Freedoms to those claiming refugee status - protection recognized by the Supreme Court of Canada in Singh v. MEI, [1985] 1 S.C.R. 177.

[44]            In the words of Dickson J. in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, likening the principal of fundamental justice to "the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system" (page 513), Pinard J. adds:

I consider that "the basic tenets and principles . . . of our judicial process . . . [and] of the other components of our legal systems" include, for someone claiming refugee status under the Immigration Act, 1976, the right to be represented by competent and careful counsel, if he so desires, and the right to a full and complete hearing.

[45]            The moving party may have other recourse available to him. In this motion, however, for the reasons given above, the Court does not have jurisdiction to vary the order dated April 29, 2003.

[46]            Consequently, the applicant has not satisfied me of the merits of his motion.

                                                                      ORDER

THE COURT ORDERS THAT:

-          This motion to reconsider be dismissed;

-          The whole without costs.

                                                                                                                                         "Pierre Blais"              

                                                                                                                                                                                                      Judge                   

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                              FEDERAL COURT

                                                       SOLICITORS OF RECORD

DOCKET:                                                 IMM-1376-03

STYLE OF CAUSE:

                                                 MOHAMED AMINE BOUBARAK

                                                                                                                                              Applicant

                                                                            and

                                                THE MINISTER OF CITIZENSHIP

                                               AND IMMIGRATION OF CANADA

                                                                                                                                          Respondent

WRITTEN MOTION DECIDED WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER AND ORDER:                             The Honourable Mr. Justice Blais

DATE OF REASONS:                                                             October 22, 2003

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: