Date: 20051205
Docket: IMM-7183-05
Citation: 2005 FC 1646
BETWEEN:
LOURDES CAROLINACONTRERAS MELENDEZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
MINISTEROF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER
PINARD J.
[1] The only explanation given by the applicant regarding her delay in filing her motion for a stay of a removal order scheduled for December 6, 2005, appears at paragraphs 42 and 43 of her affidavit dated December 1, 2005.
[TRANSLATION]
42- I received a notice to report for removal dated November 17, 2005, I tried to find counsel in Toronto, but those that I consulted were not available or were asking for fees that I was unable to afford;
43- It was not until Tuesday, November 29, 2005, that a member of the family living in Montréal, invited me to come here, promising to help me find counsel;
[2] The respondent argued that this explanation provided by the applicant was insufficient to justify the extension of time requested. I agree.
[3] In fact, the evidence shows that the applicant has known since November 17, 2005, that she had to leave on December 6, 2005, for the United States. However, it was not until December 1, 2005, at the end of the afternoon, that she thought it important to file her application for leave and for judicial review disputing the PRRA decision, and her application to stay was attached thereto. Indeed, it is not disputed that the application to stay was filed too late, less than two clear days before the requested hearing date.
[4] The applicant's affidavit does not make any reference at all to her representation by Immigration Advisor Campbell to whom the terms of her removal were sent around November 17, 2005. The applicant does not give any indication at all in her affidavit regarding the identities of the counsel in the Toronto area who were not available or who were too expensive for her to take her case, and yet this would have been easy to do. Under the circumstances, the evidence provided by the applicant was substantially insufficient to justify the extension of time requested.
[5] Whatever the case, the basis of the application, i.e. economic and availability grounds, do not justify an extension of time. In Pistan v. Canada(Minister of Citizenship and Immigration), 2001 FCT 774; [2001] F.C.J. No. 1132 (QL), MacKay J. in fact stated as follows:
[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.
[6] See also: Rodriguez v. M.C.I., (2002) 219 FTR 1 (O'Keefe J.).
[7] This Court has stated on numerous occasions that the hearings on applications to stay filed at the last minute, except under exceptional circumstances, do not favour the interests of justice in that they do not enable the respondent in particular to adequately prepare:
As stated by this Court in numerous occasions, "last minute" motions for stays force the respondent to respond without adequate preparation, do not facilitate the work of this Court and are not in the interest of justice. A stay is an extraordinary procedure which deserves thorough and thoughtful consideration (Matadeen v. The Minister of Citizenship and Immigration, June 22, 2000, IMM-3164-00 (FCTD)).
See as well: Herrera v. Minister of Citizenship and Immigration (May 18, 2000), IMM-2517-99 (F.C.T.D.), Membreno-Garcia v. Canada (M.E.I.), [1992] 3 F.C. 306 (F.C.T.D.) and Petit v. Canada (M.E.I.), [1993] 2 F.C. 505 (F.C.T.D.)).
Warsi v. The Minister of Public Safety and Emergency Preparedness - IMM-5715-05 - September 27, 2005.
[8] For all of these reasons, after hearing counsel for both parties, the extension of time is denied.
"Yvon Pinard"
Montréal, Quebec
December 5, 2005.
Certified true translation
Kelley A. Harvey, BCL, LLB
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