Docket: T-692-16
Citation:
2016 FC 1083
Ottawa, Ontario, September 23, 2016
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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KOEHNE, MIRKO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an appeal of the Order of Prothonotary
Lafrenière of August 4, 2016. The Prothonotary denied the motion in writing of
July 22, 2016 whereby the applicant sought an extension of time to file the
applicant’s record in order to complete his judicial review application
pursuant to s 22.1 of the Citizenship Act, RSC, 1985, c C-29. An
application for leave must be filed and served within 30 days of the day on
which the applicant becomes aware of the matter (para 22.1(2)(a) of the Citizenship
Act). The applicant’s record is due within 30 days of the leave application
being served and filed.
[2]
In the case at hand, the Citizenship Court
decision was handed down on April 15, 2016. The application for leave and
judicial review was filed on May 4, 2016. However, the applicant’s record,
which was due on June 3, was not filed. Instead, the applicant attempted to
file documents or, alternatively, sought an extension of time to be granted.
The applicant is not represented by counsel, although he claims he receives
advice.
[3]
The documents submitted were not accepted for
filing as not conforming with rule 10 of the Federal Courts Citizenship,
Immigration and Refugee Protection Rules, SOR/93-22, as amended.
Nevertheless, an extension of time was granted on June 27, 2016; a further
direction was issued on July 11, fixing the extension deadline to July 22 in
order to perfect the record in accordance with rule 10.
[4]
The applicant made a motion dated August 3,
2016, for the purpose of a further extension of time to August 31, 2016.
[5]
On August 4, Prothonotary Lafrenière dismissed
the motion for extension of time. Applying the four factors that govern the
discretionary decision to grant, or not, an extension of time, the Prothonotary
concluded that there was no explanation for the delay and the merit of the
underlying application had not been established. The four criteria, set out in Canada
(Attorney General) v Hennelly (1999), 244 NR 399 (FCA)[Hennelly],
read:
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.
[6]
In essence, the applicant’s record was due on
June 3 and by August 3, it still was not ready for filing as the applicant was
asking for an extra month to file his record. Obviously, the applicant wants to
pursue his application; the Crown, which opposed the motion before the
Prothonotary, did not claim that it would suffer some prejudice. Instead, it
argued that there is no reasonable explanation for the delay: holidays and not
being legally trained will not do. In fact, the Prothonotary found that two of
the four Hennelly criteria were not satisfied.
[7]
Prothonotary Lafrenière concluded that steps had
to be taken by the applicant to immediately correct the record of its
irregularities. Nothing, or not much, appears to have been done between June 24
to July 16, when the applicant left for his vacation. As the Prothonotary puts
it, “[t]he applicant wrongly assumed that his vacation
time should take priority over a court-imposed deadline.”
[8]
Moreover, the Prothonotary noted that the
applicant did not establish the merit of the underlying application as he
failed to go beyond the general assertions that the Citizenship Judge’s decision
was unreasonable and that there would be some procedural unfairness. Such
generalities do not say much about the merits of the case.
[9]
On appeal of the Prothonotary’s order, the
applicant fails to establish what is the error made by the Prothonotary other
than he disagrees with him. The applicant raises that he is not assisted by
counsel and that he needed to take his planned holidays in view of the demands
of his job. In the view of the applicant, this Court ought not to treat him as
if he were a counsel, as he continuously has had to struggle with various rules
of courts.
[10]
The Crown did not participate in the appeal of
the Prothonotary’s order, choosing to rely on its already thin submissions made
before the Prothonotary. It is unfortunate that the Crown limited its
participation since an appeal of the Prothonotary’s order is governed by
different rules: the Crown is treating the matter is if the appeal was in the
nature of a de novo appeal, by relying on its submissions before the
Prothonotary. It is not.
[11]
The appeal of a Prothonotary order is governed
by the same standard of review applicable in civil matters. A panel of five
appellate judges overturned the standard of review applicable to discretionary
orders made by prothonotaries enunciated in Canada v Aqua-Gem Investments
Ltd, [1993] 2 FCR 425 [Aqua-Gem] in the case of Hospira
Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 [Hospira
Healthcare]. In its place, the Federal Court of Appeal abandoned the Aqua-Gem
standard for the standard adopted in Housen v Nikolaisen, 2002 SCC 3,
[2002] 2 S.C.R. 235 [Housen]. That development in the law follows in the
footsteps of Imperial Manufacturing Group Inc v Decor Grates Incorporated,
2015 FCA 100, [2016] 1 FCR 246, in which the Federal Court of Appeal
endorsed the same test for discretionary decisions made by judges of first
instance. As the Court put it in Hospira Healthcare “it is not in the interests of justice to continue with a
plurality of standards when one standard, i.e. the Housen standard, is
sufficient to deal with the review of first instance decisions.” (para
28)
[12]
As a result of this latest development in the
law, it is not appropriate anymore to figure out if a de novo review is
to be conducted on appeal. Rather, a standard of correctness applies to
questions of law, that is that if an error of law has been made, the reviewing
court would be able to substitute its own decision. In the case of questions of
fact or of mixed fact and law, Housen requires that the error be
palpable and overriding.
[13]
Here, the applicant argues that the Prothonotary
is wrong. The applicant seems to contend that the time taken to “educate
himself” is a proper explanation for missing the deadline of June 3, and
then take up another two months without having a proper applicant’s record.
[14]
The applicant did not identify an error in the
decision of the Prothonotary, let alone one that would be palpable and
overriding. Although there may be a measure of leniency in favour of
self-represented litigants, having to educate oneself and not being familiar
with the rules of court does not explain the three-month delay in this case.
Furthermore, there is no indication that the underlying application for the
authorization to launch a judicial review has any merit for lack of
specificity. All that is found are generalities.
[15]
The issue is not whether or not this Court would
exercise its discretion to extend the time as it is to consider if an error has
been made by the Prothonotary and, if so, whether it is palpable and overriding.
No such error was shown.
[16]
As a result, the appeal of the discretionary
decision of the Prothonotary must be dismissed. There will be no costs awarded.
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