Docket: IMM-1574-11
Citation: 2012 FC 446
Ottawa, Ontario, April 18,
2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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JEYAKUMARAN MUNEESWARAKUMAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION & THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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Docket: IMM-1575-11
AND
BETWEEN:
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JEYAKUMARAN MUNEESWARAKUMAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION & THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER AND
ORDER
[1]
This
is a motion by the respondents for an order extending the time permitted by the
orders of Mr. Justice James O’Reilly, dated July 14, 2011, to serve and file
the respondents’ further affidavits and allowing the respondents further
affidavits to be filed and served nunc pro tunc or as ordered by the
Court. The respondents also seek costs in the amount of $500.
[2]
The
underlying judicial reviews were for review of the negative decision in the
applicant’s H&C application and his paragraph 115(2)(b) of the Immigration
and Refugee Protection Act application; decisions that were issued in
February 2011.
[3]
In
March 2011, criminal charges were laid against the applicant. An arrest warrant
was issued on March 3, 2011. The applications for leave and for judicial review
were filed on March 10, 2011.
[4]
During
the month of March 2011, the applicant’s counsel was negotiating with Canada
Border Services Agency (CBSA) officials for the release of the applicant from
detention. As a result, CBSA officials were aware of the charges against the
applicant. However, according to the argument at the hearing of this motion,
the respondents’ counsel was not aware of this information until much later on
October 6, 2011.
[5]
The
applicant’s affidavit for the judicial review applications was sworn on April
5, 2011 and contained the following sentence:
I, Jeyakumaran Muneeswarakumar, presently
resident of the Central East Correction Centre, in Lindsay, Ontario, Make Oath
and Say as Follows:
[6]
The
respondents’ further affidavits which are at issue here, deal with the eleven
new criminal charges against the applicant.
[7]
Issue
Should the respondents be
granted an extension of time in which to file the further affidavits?
Analysis and Decision
[8]
Rule
8 of the Federal Courts Rules, SOR/98-106, permits an extension of time
for filing affidavits to be made by the Court.
[9]
In
Canada (Attorney General) v Hennelly (1999) 244 NR 399, [1999] FCJ No
846, the Federal Court of Appeal stated the test for granting an extension of
time as follows (at paragraphs 3 and 4):
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.
[10]
The
facts of this case are somewhat different from those in Hennelly above,
where the issue was failure to file a record within the time limit. Here, an
extension of time is sought to file affidavits. I am of the view that the above
test nevertheless also applies to this situation.
[11]
A
continuing intention to pursue his or her application
There is no doubt that the
respondents always intended to pursue their defence of the decision at issue in
these judicial review applications.
[12]
That
the application has some merit
Again, the respondents’ defence
of the merits of this application would meet this branch of the test. I note
that in making this finding, I am not deciding any of the merits of the
decisions under judicial review.
[13]
That
no prejudice to the respondent arises from the delay
The respondents are probably
correct that there would be no prejudice to the applicant should the motion be
granted. The applicant could ask to file further material to add to his arguments.
Any extra costs could be compensated by an award of costs.
[14]
That a reasonable explanation for the
delay exists
The facts relating to this branch of the test
bear repeating. The decisions under review were made on February 2, 2011. The
applicant was charged with the criminal offences in early March 2011. In March
2011, the applicant’s counsel was negotiating with CBSA officials for the
release of his client from detention. The respondents knew in March 2011 that
the applicant was facing new charges but apparently their counsel was not made
aware of this fact until October 6, 2011.
[15]
On this
motion, the respondents’ explanation for the delay is contained in paragraph 4
of the affidavit of Harminder Niki Singh:
Due
to an inadvertent oversight, the Department of Justice was not provided with
the information and documentation about the Applicant’s pending criminal
charges and detention until October 6, 2011.
[16]
In
Hennelly above, the Federal Court of Appeal stated at paragraphs 6 and
7:
6. In
this case the Motions Judge found that inadvertence was an insufficient
explanation for the appellant’s delay.
7. We
can find no compelling reason to interfere with the Motions Judge’s exercise of
discretion in finding that the appellant failed to provide an adequate explanation
which would justify granting an extension of time.
[17]
A
perusal of the Singh affidavit does not persuade me that the deponent was
handling the file at CBSA. The affidavit only states that Harminder Niki Singh
is a justice liason officer with CBSA and that he reviewed the applicant’s file
after an inquiry was received. It is obvious that for some reason the
respondents did not provide their counsel with the information about the
applicant’s charges. The sole explanation for the delay from March 2011 to
October 6, 2011 in providing the information to their counsel was “inadvertent
oversight”. The Court has no idea what caused the oversight or what was
involved in the oversight. As a result, I must conclude that there has not been
a reasonable explanation for the delay since the respondents knew since March
2011 of the new criminal charges. What is important here is when the parties
knew; not when they told their counsel.
[18]
The
respondents also contended that an extension of time should be granted to file
the affidavits because they were useful for the clean hands argument, the
futility argument and the credibility argument.
[19]
The
clean hands argument is based on the fact that the applicant did not disclose
his additional criminal charges in his judicial review application affidavit. I
would not grant the extension of time on this basis for the following reasons.
The applicant stated in his affidavit that he was presently resident in Central
East Correction Centre. This is an indication that he probably had been charged
with an offence. Also, the fact is that the respondents actually knew in March
2011 that the applicant had been charged as negotiations for his release were
taking place.
[20]
I
would also not grant the extension of time for reason of the futility argument.
I have no way of knowing whether the applicant will be found guilty of the
charges. As well, any future decisions with respect to the applicant are
discretionary decisions. What the Ministers’ delegate does with the charges on
any possible convictions is a discretionary decision on the delegate’s part.
[21]
Finally,
with respect to the need for the new affidavits to address the credibility
issues, I am of the view that the credibility issues can be dealt with on the
basis of the material already filed in these judicial review applications.
[22]
The
Court is also mindful that, with limited exceptions that have not been raised
here, the material before the judge conducting the judicial review is the
material that was before the decision maker below. The jurisprudence of this
Court has also stated that the affidavit evidence for which an extension of
time to file is made must be relevant and admissible.
[23]
As
a result of my findings on the Hennelly above test, and after balancing
these findings, I am of the view that the respondents’ motion for an extension
of time in which to file the additional affidavits (in each file) must be
dismissed.
[24]
The
applicant has asked for solicitor and client costs in this matter. Bearing in
mind that this matter is related to immigration, I am not persuaded that there
are special reasons to award costs (see Rule 22 of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22).
ORDER
THIS COURT
ORDERS that the respondents’ motion is dismissed.
“John
A. O’Keefe”
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