Date: 20011019
Docket: IMM-3695-01
Neutral citation: 2001 FCT 1143
Toronto, Ontario, Friday the 19th day of October, 2001.
PRESENT: Peter A.K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
ABNER KASHINGHOLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] The motion before me which seeks an extension of time within which to file the Applicant's application record reveals that the failure to file the record within time was largely that of the Applicant's solicitor and I am therefore, inclined to be more lenient than perhaps the evidence would require.
[2] The motion has been opposed by the Respondent with cogent arguments indicating the failures some of which I will recite to justify the late filing.
[3] In addition to the test for an extension of time stated by the Respondent in the third numbered paragraph of her written representations there is the important requirement that all of the delay be justified.
[4] Here, the Applicant's solicitor filed the application for leave and judicial review on July 31st, 2001 and marked August 31st, 2001 as the last day for filing the Applicant's application record. July has 31 days, so he could not in any event have filed on August 31st, 2001.
[5] The Applicant's solicitor was out of the country before August 30th, 2001, which is tended as an excuse for not filing on time. If he was out of the country, he should have arranged for alternative legal help.
[6] The excuse is also tendered that the Applicant's solicitor was not retained. By that he appears to mean his fees were not paid to him in advance. As counsel for the Respondent points out that does not excuse delay.
[7] Counsel for the Applicant complains of the conduct of Respondent's counsel pointing out that the Law Society of Upper Canada Rule 6.03 has a requirement that a lawyer should agree to reasonable requests with respect to trial dates, adjournments, etc. I would point out that Rule 21(2) of Federal Court Immigration Rules, 1993 has put an end to extensions of time solely by agreement of counsel in immigration cases.
[8] While on the subject of legal ethics I should note that some law societies disparage the practice of abandoning a client who cannot pay fees especially when there is an imminent expiry of a time limit.
[9] Counsel also complains that the Refugee Law Office did not send in precedents until it was too late for him to use them. This is to me a novel excuse, but ineffective because there are many, many files in the Registry from which the Applicant's counsel could have had precedent xeroxed for his use.
[10] There is also a statement that motions for extensions are routinely granted and that based on that information the notice of motion had been made. It seems to be the practice of the Immigration Bar to attempt to file on the last permitted day. There are therefore, numerous applications where misfortune or miscalculation results in a filing date being missed. The number of reported cases where a motion for extension has been refused indicate that extensions are not routinely granted. In fact, where the delays are not excused or an arguable case for leave is not shown motions are regularly dismissed.
[11] In this case, it is contended that the delay was caused by inadvertence and other unforseen factors. The lack of money to pay legal fees was not unforseen. The lack of knowledge necessitating precedence was not unforseen. The absence from the country at the critical time may have been caused by some unforeseen emergency, although none is mentioned. The delay after the passing of the time limit was discovered and before a motion was filed spanned the Labour day weekend and the Toronto Court closing for most of September 11th, 2001. Nevertheless, the five working days which did intervene is not evidence of the taking of immediate steps to correct the error.
[12] In my view, an arguable case for leave has not been shown. Showing in my view requires evidence. Quotations from newspapers is not evidence, because there is a chance that there may be fact behind the newspaper articles. I am prepared to provide an opportunity to show the existence of an arguable case. Similarly, I am prepared to grant an opportunity to excuse the delay.
ORDER
1. The motion is dismissed with leave to reapply on better evidence within 14 days of the date of this order.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
October 19, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3695-01
STYLE OF CAUSE: ABNER KASHINGHOLA
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
CONSIDERED AT TORONTO, PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES 1998.
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: FRIDAY, OCTOBER 19, 2001
WRITTEN SUBMISSIONS BY: Mr. Gordon Zlatko Bobesich
For the Applicant
Ms. Urszula Kaczmarczyk
For the Respondent
SOLICITORS OF RECORD: Gordon Zlatko Bobesich
Barrister-At-Law
20 Hurontario Street
Mississauga, Ontario
L5G 3G7
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011019
Docket: IMM-3695-01
BETWEEN:
ABNER KASHINGHOLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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