Date: 20091109
Docket: IMM-4836-08
Citation: 2009
FC 1149
Montreal, Quebec, November
9, 2009
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
BOYZIE
McBEAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. McBean
seeks judicial review of the decision of the Immigration Appeal Division of the
Immigration and Refugee Board (the IAD) to dismiss his appeal of a decision
made by a Visa officer who refused his sponsorship application which sought permanent
residence for his wife, Princess Octavia Baptiste.
[2]
Although
the decision under review is dated March 6, 2008 and was sent to him and his
then-solicitor of record shortly thereafter, Mr. McBean says that he only received the
decision towards the end of July 2008 and, for various reasons that will be
discussed later on and which include a lack of diligence on the part of his new
solicitor, he filed his application for leave and judicial review on November
3, 2008.
[3]
The judge
who granted leave in this file did not deal with the request for an extension
of time to file the said application. As recently reiterated by the Federal
Court of Appeal in Deng Estate v. Canada (Minister of Citizenship and
Immigration),
2009 FCA 59, 79 Imm. L.R. (3d) 181, 387 N.R. 170 at paragraphs 15 to 18, one
should not infer from the granting of the leave that the motion judge also
granted an extension of time. Thus, the judge hearing the motion has
jurisdiction to decide the issue.
[4]
It is
clear that life has not been easy for the 54-year-old applicant who came to Canada from Jamaica after being sponsored by his mother. He
was married twice before meeting Princess Octavia Baptiste. His first wife
lives in Jamaica with his daughter. As for his
second wife, after he sponsored her to come to Canada, she divorced him stating that he was
too old. In its decision, the IAD goes out of its way to say that it does not
doubt the sincerity of this man who devotes much of his free time to his church
and its food bank.
[5]
It is
evident that it would be easier for Mr. McBean to live in Canada with Princess Octavia
Baptiste rather than alone or in his wife’s country. The Court
is far from insensitive to his plight and wonders, in this case, who would be?
[6]
While it
would be “easier” for the Court to simply grant the application as urged by Mr.
McBean’s counsel, it would not, in my view, be right to do so. Canada does offer legal protection
to all its citizens but in return they must all accept to be judged by the same
rules.
[7]
The test
that the Court must apply to determine whether it should grant an extension of
time in respect of this application is well-established and applies to all
cases as indicated by the Federal Court of Appeal in Canada (Minister of
Human Resources Development) v. Hogervorst, 2007 FCA 41, 359 N.R. 156, 154
A.C.W.S. (3d) 1238 at paragraphs 32 and 33:
32 […] What is required is that
a) there was and is a continuing intention on the
part of the party presenting the motion to pursue the appeal;
b) the subject matter of the appeal discloses an
arguable case;
c) there is a reasonable explanation for the
defaulting party's delay; and
d) there is no prejudice to the other party in
allowing the extension.
33 This test is not in contradiction with the
statement of this Court made more than twenty (20) years ago in Grewal v.
Canada (Min. of Employment and Immigration), [1985] 2 F.C. 263 that the
underlying consideration in an application to extend time is to ensure that
justice is done between the parties. The above stated four-pronged test is a
means of ensuring the fulfillment of the underlying consideration. It ensues
that an extension of time can still be granted even if one of the criteria is
not satisfied: see Grewal v. Canada, supra, at pages 278-279.
[8]
As noted
by Justice Gilles Létourneau in Budisukma Puncak Sendirian Berhad v.
Canada, 2005 FCA 267, 338 N.R. 75, 141 A.C.W.S. (3d) 692 at paragraph 60,
the time limit set for the filing of an application for judicial review is not
whimsical; it brings finality to administrative decisions and ensures their
effective implementation.
[9]
Because
the time limit serves the public interest, the respondent vigorously contests
the granting of an extension of time in this case. He argues that the applicant
has failed to provide a reasonable explanation for the lengthy delay in filing
his application and that said application is not sufficiently meritorious to
warrant the exercise of the Court’s discretion. Also, it is not clear that the
applicant had a continuing intention to pursue this remedy.
[10]
To explain
the long delay, Mr. McBean says that he did not act more quickly because he
needed someone to explain the decision to him. Apparently, it is only when a
friend, Marjorie Coke, came back from Jamaica or Florida at the end of August 2008 that she
“explained everything and helped him find a lawyer.” There is no evidence
whatsoever to explain the applicant’s lack of action during the period between
March and the end of July 2008, apart from the allegation that he had not
received the decision until the end of July.
[11]
According
the affidavit of Wendy Martinez,
a replacement for the secretary/receptionist who is said to be on vacation, it
appears that Mr. Istvanffy’s office was in a disorganized state in
August/September 2008 and that, due to the absence of a secretary, Mr. McBean
had difficulty obtaining an appointment.
[12]
That said,
it appears, however, from the written representations made on behalf of the
applicant that he had given a clear mandate to his new solicitor on September
17, 2008 to file an application and request a time extension. At that time,
there is little doubt that all concerned knew that the application was already
out of time and ought to have known that the request for an extension should be
filed as quickly as possible.
[13]
Mr.
McBean’s counsel urged the Court to grant the extension stating that thereafter
he went on holiday and that, when he came back, he had to take care of urgent
stays. Therefore, he could not get around filing the application before
November 3, 2008. According to counsel, his client should not be penalized for
his own lack of diligence.
[14]
There are
a number of cases where the Court held that an alleged solicitor’s error or
negligence is not a reasonable explanation for not pursuing one’s right (Chin
v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 77, 22
Imm. L.R. (2d) 136, 43 A.C.W.S. (3d) 1141 (F.C.) (Chin); Williams v. Canada (Minister of Employment and
Immigration)
(1994), 74 F.T.R. 34, 24 Imm. L.R. (2d) 167, 46 A.C.W.S. (3d) 1116 (F.C.) (Williams);
Cove v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 266, 104 A.C.W.S. (3d) 761, [2001] F.C.J. No. 482 (QL) (Cove)).
There are obvious policy reasons for this. In fact, as mentioned in Williams
at paragraph 20, “[t]he system cannot operate if this is not so.”
[15]
However,
other authorities such as Washagamis First Nation v. Ledoux, 2006 FC
1300, 152 A.C.W.S. (3d) 970, [2006] F.C.J. No. 1639 (QL) (Washagamis) at
paragraphs 31 and 32 note that there are cases where the Court has been more
open to excuse a litigant for the failings of its counsel.
[16]
Like
Justice Robert L. Barnes in Washagamis, the Court believes that the
better approach is not to look only at the behaviour of the solicitor on a
case-by-case basis but also at the behaviour of the client which, in this case,
is the applicant. The Court should consider whether both the legal counsel and
the client were diligent in remedying the alleged mistake. Only a very careful
application of such an approach will avoid the pitfall noted in cases such as Chin,
Williams and Cove – namely, giving counsel a green light to
forget about deadlines by pleading their own negligence (see Chin at
paragraph 10).
[17]
There is
little evidence as to what Mr. McBean or others, on his behalf, did to ensure that
Mr. Istvanffy was diligent between September 17 and November 3, 2008. That
said, if this was the only problem in the present case, the Court would
probably have overlooked it, given Mr. McBean’s particular difficulties (he is
illiterate). However, this is not the only issue for, as previously mentioned,
there is no explanation for the delay between March and the end of July 2008.
Furthermore, from his brief comment contained in his affidavit in support of
his application with respect to his former lawyer asking for too much money,
one can reasonably infer that he was well aware of the decision and what had to
be done, but decided to do nothing.
[18]
Moreover,
the Court does not accept that Mr. McBean had to wait for the return of Ms.
Coke. Why could he not get proper information from his other friends in the
community, particularly from his pastor or the pastor’s wife, before the end of
August 2008? This explanation is simply not reasonable. The applicant’s counsel
argued that his client may have been reluctant to admit his illiteracy.
However, the Court considers that this is pure speculation especially
considering the affidavit of his pastor, Reverend Adlam, who attests that he
was well aware of this problem.
[19]
In respect
of Mr. McBean’s intention to pursue his remedy, the only evidence is contained
in paragraphs 31 and 32 of his affidavit. There, he states that he always had
the intention of challenging the decision. As mentioned earlier, he also notes
that his previous lawyer had asked him for so much money that he could not do
anything. Does this mean that he had abandoned the idea of seeking judicial
review until he discussed the matter with Ms. Coke at the end of August?
[20]
It is also
worth noting here that the case law is consistent; even when waiting for legal
aid, one is not relieved from respecting the delays: Espinoza v. Canada
(Minister of Employment and Immigration) (1992), 142 N.R. 158, 33 A.C.W.S.
(3d) 1116, [1992] F.C.J. No. 437 (QL) (F.C.A.), Kiani v. Canada (Minister of
Citizenship and Immigration) (1996), 124 F.T.R. 299, 68 A.C.W.S. (3d) 326,
[1996] F.C.J. No. 1692 (QL) (F.C.), Pistan v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 774, 107 A.C.W.S. (3d) 106, [2001]
F.C.J. No. 1132 (QL). Thus, taking no steps due to a lack of money certainly
cannot be considered a better explanation.
[21]
Coming now
to the merits, the last factor of this analysis, the Court is satisfied that
Mr. McBean has an arguable case even though it is not particularly meritorious.
In that respect, the Court will only make a few comments and will not deal with
the arguments raised that were not supported by any evidence and that were
clearly without merits, such as bias or racism.
[22]
First, the
applicant’s counsel insisted on the fact that paragraph 20 of the decision contains
an error of fact, for the IAD says that the applicant gave no explanation as to
why Princess Octavia Baptiste did not know that he had a daughter or was
married twice before when she was questioned at her interviews in March 2006
and February 2005. In fact, although it appears that Princess Octavia Baptiste
was made aware of those facts prior to her interview in March 2006, it is
clear that she had no knowledge of them in February 2005. It is also
acknowledged that no explanation was provided with respect to her lack of
knowledge during the February 2005 interview.
[23]
The Court
is not satisfied that this is an error that could impact the decision and
therefore justify voiding the whole decision. It was one of many issues
considered and raised by the decision-maker and it is, as mentioned, for the
most part accurate.
[24]
Second,
the applicant says that insufficient weight was given to the fact that his
marriage has the full support of the community, including his pastor and the
pastor’s wife. Also, he submits that the IAD should not have used the various
inconsistencies and contradictions in his own testimony and his wife’s
testimony as to when or where they met since it is clear, as it appears from
the evidence, that it was through their church activities.
[25]
The IAD
refers, on more than one occasion, to the evidence of Reverend Adlam and his
wife. In fact, the IAD first reviews the basis of their opinion as to the
applicant and Princess Octavia Baptiste’s intentions before giving cogent
reasons as to why it was not persuaded by this evidence. In the circumstances,
the weight given to this evidence, in the overall context of the file, is
within the range of possible acceptable outcomes.
[26]
It is
clear that the IAD was fully aware that the applicant and his wife met through
their church activities and it never raised any doubt in that respect. However,
in order to ascertain the length of the couple’s relationship prior to their
marriage, the IAD had to determine when they met (see paragraph 13 of the
decision), a factor that is clearly relevant to a determination pursuant to
section 4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations).
[27]
As was
agreed by both parties at the hearing, this issue is one that is reviewable on
the standard of review of reasonableness. The Court’s role is thus to determine
if the outcomes, or the decision, taken fall within a range of possible
acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, 164 A.C.W.S. (3d) 727 at paragraph 47; Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, 304 D.L.R. (4th) 1 at paragraph 59. It is
not open to the reviewing Court to substitute its own view or its own
appreciation of the evidence.
[28]
This
brings me to the core argument of the applicant, namely, that the decision is
meant to punish Princess Octavia Baptiste for her prior attempts to come to Canada and her illegal stay in the
country. The applicant says that it is unfair as it constitutes a breach of the
applicant’s fundamental rights to family life, which is a protected right in Canadian law
as well as in international law. He further alleges that Mr. McBean has the
right to marry whom he wishes and to live with his chosen wife in Canada.
[29]
Although
at the hearing the representation of the applicant’s counsel appeared to go
beyond the particular facts of this case, it is worth mentioning that the
applicant does not contest the validity of section 4 of the Regulations,
but only its application here. This is important for the IAD must apply the law
as it stands and thus make the determination required by section 4 of the Regulations.
[30]
The Court
cannot agree with the applicant’s counsel that the IAD wrongly relied on the
immigration history of Princess Octavia Baptiste. In fact, the visa officer and
the IAD have a very difficult task to perform. As mentioned by Justice Eleanor
Dawson in Roopchand v. Canada (Minister of Citizenship and Immigration),
2007 FC 1108, 162 A.C.W.S. (3d) 312, [2007] F.C.J. No. 1430 (QL) at paragraph
4, with respect to the intent and purpose of the sponsored spouse, the IAD is
unlikely to successfully test them “by a grilling cross-examination designed to
elicit an admission of fraud or dishonesty. Rather, in the usual case, the
trier of fact will draw inferences from such things as inconsistent or
contradictory statements made by the parties, the knowledge the parties have
about each other and their shared history, […] and any previous attempt by
the applicant spouse to gain admission to Canada.” (Emphasis added.) This factor has
repeatedly been found to be relevant by the Court.
[31]
The IAD’s
decision does not mean that Mr. McBean cannot marry or live with Princess
Octavia Baptiste. Rather, it means that he cannot do so in Canada as his wife has no status in
this country.
[32]
In view of
the foregoing, it appears that Mr. McBean meets one or, at most, two of the
four criteria set out in the test. Despite the flexibility of this test, the
Court cannot conclude that it would be in the interest of justice to grant him
the extension sought.
ORDER
THIS COURT ORDERS that the application is dismissed.
“Johanne
Gauthier”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4836-08
STYLE OF CAUSE: BOYZIE
McBEAN v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: OCTOBER 6, 2009
REASONS FOR ORDER: GAUTHIER
J.
DATED: NOVEMBER 9, 2009
APPEARANCES:
|
Stewart Istvanffy
|
FOR THE APPLICANT
|
|
Mario Blanchard
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
STEWART ISTVANFFY
Montreal, Quebec
|
FOR THE APPLICANT
|
|
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Montreal, Quebec
|
FOR THE RESPONDENT
|
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