Docket: IMM-469-16
Citation:
2016 FC 572
Toronto, Ontario, May 25, 2016
PRESENT: Prothonotary Kevin R. Aalto
|
BETWEEN:
|
|
MARIAM MAGADLIN
JOHN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
ORDER AND REASONS
I.
Introduction
[1]
This is a motion brought pursuant to Rule 369
for an extension of time to serve and file the Applicant’s Record. The Respondent
opposes the extension and raises once again the issue of whether the delays
inherent in making an application for legal aid is an acceptable explanation
for the failure to serve and file the Applicant’s Record within the prescribed
time limit. In this case, the delay relating to an unsuccessful application
for legal aid is the primary explanation offered as to why the application was
not perfected in time.
[2]
It is time to revisit this issue as the
Respondent frequently opposes extensions of time in cases where the delays in
obtaining legal aid is an applicant’s excuse for the delay.
II.
Background
[3]
The Applicant seeks an extension of time to
serve and file her application record. In support of her motion the Applicant
has filed two affidavits. One is from her son, Ishaiah Peter (Peter Affidavit)
and a second from Mary Teresa Connolly (Connolly Affidavit), a law clerk in the
office of Applicant’s counsel.
[4]
The Peter Affidavit recounts the background of
the Applicant’s encounter with the immigration process and her efforts to seek
judicial review of a negative decision. The Refugee Protection Division
rejected the Applicant’s claim for refugee status and found that she was not a Convention
Refugee and was not a person in need of protection. The appeal of that
decision was unsuccessful. The appeal decision is dated January 15, 2016. Two
errors were found by the appeal tribunal to have been made in the original
decision relating to findings on delay and certain documents relating to the
Applicant’s residency in Kuwait. Notwithstanding these errors, the appeal was
denied.
[5]
The Peter Affidavit then sets out the steps
taken to apply for legal aid to assist the Applicant in bringing this
application for leave and judicial review (the Application). A Legal Aid
Certificate was issued for the limited purpose of commencing the Application. Additional
materials were requested by Legal Aid to determine if a certificate would be
issued for further steps in the Application.
[6]
The Applicant’s Application was issued on February
1, 2016. The request for further legal aid assistance was in process when it
was issued and a lawyer had been selected. Ultimately, on February 25, 2016
the lawyer advised Mr. Peter that the certificate for Legal Aid was refused and
a retainer was required within 24 hours. Mr. Peter deposes that he does not
live in Toronto and that he tried to contact the lawyer to discuss retainer
arrangements. He also deposes to the fact that the lawyer was unavailable and
on holiday. Although he asked her to call him back he never heard from her.
[7]
Mr. Peter then describes his efforts to find
another lawyer and finally located current counsel but she could not meet with the
Applicant and her son until March 11, 2016. The retainer was finalized on
March 13, 2016. Counsel then set about contacting the former lawyer to obtain
the file and sought an extension of time from the Respondent. Counsel was
advised by the Respondent that a decision would be made once a motion was
served.
[8]
The motion was served. The Respondent refused
to consent to an extension and opposes this motion. In my view, for the
reasons that follow, the Respondent made the wrong decision.
[9]
Turning to the Connolly Affidavit, it sets out
not facts but argument and law. It points out errors with the decision under
review and lists cases to support arguments. In all, it is not helpful as an
affidavit is not necessarily needed to outline the errors of law in the
decision and the legal merits of the judicial review.
III.
Positions of the Parties
[10]
The Respondent argues that the four factors in Canada
(Attorney General) v. Hennelly (F.C.A.), (1999), 244 N.R. 399,
[1999] F.C.J. No. 846 have not been met. The Respondent argues, inter alia,
that waiting for an application for legal aid to be approved is not a
legitimate excuse for delay; that the evidence in support of the request for an
extension is not sufficient; the affidavits in support should be given no
weight; and, because credibility was a key element of the decision under review,
there is no merit to the application.
[11]
The Applicant relies upon both the Peter
Affidavit and the Connolly Affidavit and submits there is no prejudice to the
Respondent, the intention to pursue the Application is clear, merit has been
shown, and, the delay has been explained.
IV.
Analysis
[12]
There is no doubt that Hennelly remains
the leading case setting out the requirements to be met to obtain an extension of
time. That case and others require that the Applicant demonstrate the
following:
i.
That there was a continuing intention to pursue
the application;
ii.
That there is some merit to the application;
iii.
That no prejudice arises from the delay; and,
iv.
A reasonable explanation for the delay exists.
[13]
As was observed by Justice Richard Mosley in Bloom
v Canada, 2010 FC 621, the approach to be taken in respect of the
application of Hennelly is as follows:
[12] In considering
whether to grant an application to extend time, the Court must consider whether
(i) the applicant had an continuing intention to pursue his or her application;
(ii) the application has some merit; (iii) that no prejudice to the respondent
arises from the delay; and (iv) that a reasonable explanation for the delay
exists: Canada (Attorney General) v. Hennelly (F.C.A.), (1999), 244 N.R.
399, [1999] F.C.J. No. 846; Marshall v. Canada 2002 FCA 172. The
length of the period of the extension may also be a relevant consideration. The
underlying consideration is to ensure that justice is done between the parties:
Grewal v. Canada (Minister of Employment and Immigration) [1985] 2 F.C.
263. The four-pronged test set out in Hennelly is a means to
ensure the fulfillment of that underlying consideration. An extension of time
may still be granted if one of the criteria is not satisfied: Canada
(Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41.
[14]
The Respondent opposes the extension primarily on
the grounds that there is no arguable case and that the explanation for the
delay is not sufficient.
[15]
Virtually all of the authorities relied upon by
the Respondent are older cases, some of which are not readily found nor
reproduced in publicly available databases. Very little recent jurisprudence of
this Court is referred to. For example, although Hennelly remains the
leading case setting out the factors to be considered to permit the Court to
exercise its discretion to grant an extension, a fifth factor has evolved.
That fifth factor is whether the justice of the case supports the granting of
an extension as noted in the above quotation from Bloom.
[16]
In support of his various arguments in
opposition to an extension of time, the Respondent has plucked several obscure,
one or two paragraph orders from decades ago and cites them as unassailable
authority for profound propositions of law. Many of these cases offer no
analysis of the issues in this case, fail to provide a context for the order
made, and, are often simply statements of conclusions with little or no jurisprudential
value or guidance.
V.
Explanation for the Delay
[17]
The delay, in large part, arises from dealings with
Legal Aid which ultimately denied assistance to the Applicant for the conduct
of the Application. There is also reference to the difficulties encountered in
trying to communicate with former counsel and the need to obtain the file from
prior counsel.
[18]
In the written representations of the Respondent
it is submitted that “this Court has consistently held
that waiting for legal aid does not excuse a delay in filing a record.”
For this proposition the Respondent relies upon five cases. Those cases are:
Oduro v Canada, [1999] F.C.J. No. 1542
Espinoza v Canada, [1992] F.C.J. No. 437 (FCA)
Kiani v MCI,
[1996] F.C.J. No. 1692
Tawanapoor v Canada, [1997] F.C.J. 585 (Proth.)
Alam v Canada,
[1997] F.C.J. No. 1108 (Proth.)
[19]
These cases, it is argued, stand for the
immutable proposition that waiting for a legal aid certificate does not provide
an excuse for delay in filing an application record. I disagree. It is
worthwhile to actually read the cases upon which a party relies. Those counsel
who rely on this argument as though it is written in stone, have simply not
read the cases, especially the seminal case of Espinoza. Notably, the
Respondent has failed to consider the more recent cases of Chen v Minister
of Citizenship and Immigration, Court File No. IMM-5341-10 (Order granting
extension dated November 17, 2010) and Varga v Minister of Citizenship and
Immigration, (Court File No. IMM-5284-11 (Order granting extension dated
November 1, 2011) both of which discuss Espinoza.
[20]
The proposition upon which the Respondent relies
for the position that waiting for a legal aid certificate does not excuse delay
in filing an application record is founded on Espinoza, a 1992 decision
of Mr. Justice Patrick Mahoney of the Federal Court of Canada- Appeal Division.
[21]
That case involved a judicial review of a
finding that the applicant was not a convention refugee. The application was
commenced on February 21st. On March 30th, the applicant
brought a motion seeking an extension of time to file his record. The reason
given for the delay was the illness of a Spanish translator. There was no
reference in the motion to waiting for an answer to an application for legal aid.
Justice Mahoney granted a peremptory extension to April 15. A motion was then
brought for reconsideration of the order and an indefinite extension was
sought on the ground that there was a legal aid application outstanding.
Justice Mahoney’s decision relating to this request is as follows:
The Applicant now seeks reconsideration of
my order and an indefinite extension of time on the ground that a Legal
Aid application remains undecided and that the Applicant has informed counsel
that he is unable to proceed by way of private retainer. The material does
not disclose when the application for Legal Aid was made. It does disclose that
on April 14 Legal Aid authorities advised counsel that it had not been disposed
of.
The Applicant invokes Rule 337(5). That
seems to me entirely unnecessary. An order extending time does not finally
dispose of any matter in issue and is always open to reconsideration whether
made peremptorily or not.
I am not prepared to grant an indefinite
extension. The policy of the Immigration Act
and Federal Court Immigration Rules as to the expeditious processing of
leave applications is transparently clear. The dilatory initiation of Legal Aid
applications, delays in providing opinion letters, which counsel know very well
will be required, and the ever slower processing of such applications by some
Legal Aid Committees cannot be permitted to defeat the policy of the Act and
Rules. As I had occasion to observe in another application for an extension,
"the agenda of the London & Middlesex County Legal Aid Committee
cannot dictate this Court's administration of the law and application of its
Rules."
For example, I see little excuse for the
Legal Aid application not being made contemporaneously with the application for
leave and none at all for its not being made until the eve of expiration of the
time to comply with Rule 9, as is all too often the case. Likewise, I see
little excuse for the failure of Legal Aid Committees to deal with applications
promptly. It seems to me that if an extension of time is sought to permit a
Legal Aid application to be disposed of, it is necessary that the Court know
when the application was made, why it was not made when the leave application
was filed, when the Legal Aid Committee will next have an opportunity to deal
with it and why it has not already been dealt with if it has been pending for
more than two weeks. Those are among the matters that should be addressed in
the supporting affidavit.
If the Legal Aid application were made when
the leave application was filed, it would have been outstanding almost 30 days
before a Rule 9 extension had to be sought. Some cogent reason for it not
having been disposed of in that time would seem called for. Failure to make
the application promptly could be a good reason to deny an extension.
ORDER
The time for the Applicant to comply with
Federal Court Immigration Rule 9 is further extended to June 1, 1992.
[emphasis added]
[22]
As can be seen, Justice Mahoney did not deny an
extension on the basis of delay pending the application for Legal Aid. Justice
Mahoney refused to grant an indefinite extension but did, in fact, grant
an extension of 19 days (the date of his decision May 13, 1992 to June 1, 1992)
because there was a pending legal aid application.
[23]
Somehow or other this case has been transformed
from what it does decide (i.e. that indefinite extensions will not be granted)
to something it does not decide (i.e. that waiting for an application for legal
aid is not a sufficient explanation for delay). As noted by Justice Mahoney it
is important for the Court to have in evidence the circumstances and status of
the legal aid application. Extensions are discretionary and the evidence must
support the exercise of that discretion in favour of granting an extension
where warranted.
[24]
The requirement that the Court should have some
concrete evidence concerning the status of the legal aid application is voiced
in further decisions of the Court relied upon by the Respondent. In Alam,
Senior Associate Prothonotary Giles, observed:
There have been numerous cases which have
decided the fact that an applicant has been waiting for legal aid does not
excuse delay except in special circumstances. A prompt application for legal
aid and diligent follow-up may in certain circumstances excuse delay. The
applicant here found out on April 21st, 1997 that his CRDD decision was
adverse. His then lawyer did not tell him to make an application for legal aid
until April 28th, 1997. The legal aid then being sought was initially legal aid
to have an opinion prepared to attempt to obtain further legal aid to file a
record. The applicant attended to apply for legal aid on May 1st, 1997 and was
granted initial legal aid on May 16th, 1997. Apparently Legal Aid has admitted
it was tardy in granting the initial legal aid; however, it was not until May
23rd, 1997 that the necessary opinion letter to seek further legal aid was sent
(the Application for Leave and for Judicial Review was filed on May 6th, 1997
without waiting for Legal Aid's "approval"). [emphasis added]
[25]
In Alam the motion was dismissed but
without prejudice to bring a further motion on better evidence.
[26]
Tawanapoor is another
decision relied upon by the Respondent in which Associate Senior Prothonotary
Giles stated as follows:
1. As is so often the case, it
appears that nothing was done on this file to further the preparation of an
Applicant's Record while all concerned waited to see if Legal Aid would be
granted. Waiting for Legal Aid does not excuse delay in filing in the usual
case. There is no evidence before me as to when Legal Aid was applied for,
nor as to whether there was some special reason that it took so long to get an
answer from Legal Aid.
2 For an application for an
extension of time to file a record to be successful, the applicant must not
only excuse all of the delay, but must also show that evidence exists to
support an arguable case for leave. This has not been done, so the motion for
an extension will be dismissed.
3 Because
the applicant is representing himself, I will grant him leave to reapply for an
extension of time on or before June 1st, 1997. Such application must be
supported by the necessary affidavit evidence, by the applicant's submissions
in support of the new application for an extension. Filing a Reply is not the
proper way to submit the applicant's argument.
ORDER
1. The motion for an extension of
time is dismissed with leave to reapply for an extension of time on proper
evidence on or before June 1st, 1997.
(emphasis added)
[27]
In this case there was insufficient evidence regarding
the status of the legal aid application and there was no evidence concerning why
it had taken so long. Notwithstanding, the Prothonotary granted leave to file
a further motion on proper evidence.
[28]
Turning next to a consideration of Odura,
there is no doubt that it is stated at para. 7 of the decision that:
7. It is well established that the
administrative delays for approval of a certificate at legal aid do not justify
an extension of time. The Federal Court of Appeal settled this issue in Espinosa
v. M.E.I. (1992), 142 N.R. 158, and the principle set out therein has been
applied again and again since that decision.
[29]
However, it is to be noted that this was a
motion for reconsideration of an order which dismissed the application on the
ground it was superfluous. The motion for reconsideration dealt with an
argument that the original order was premised on a wrong principle. There is
nothing in the decision which sets out the relevant evidence about the
application for legal aid other than it could not be completed within 10 days.
As Espinoza was the basis for the statement noted above the implication
is that an indefinite extension was being sought. In any event, the Court also
noted that the motion was doomed to fail as it did not fall within the reconsideration
rule.
In my view, therefore, on a plain reading of Oduro, it is also speaking
to indefinite extensions because of legal aid applications and not situations
where there is evidence of the timing and status of the application which would
allow the Court to grant a fixed time for the extension.
[30]
Finally, in Kiani, Justice Francis
Muldoon of the Federal Court of Canada – Trial Division relied upon Espinoza
in making the statement that “It has been said many
times that waiting for confirmation of legal aid is not an adequate excuse for
allowing a prescribed time limit to pass. This principle is virtually
inscribed in stone”. Kiani involved a motion for an extension of
time to file a reply memorandum. Justice Muldoon found that the reply would
“do little to strengthen the applicant’s case”.
This was clearly a factor in denying the extension because counsel had waited
for legal aid approval before seeking to file the reply which unfortunately was
only six days out of time. While the extension was denied for several reasons,
the underlying case upon which the Court determined that waiting for a legal aid
certificate was an inadequate reason to grant an extension is Espinoza
which is clear that it relates solely to indefinite extensions.
[31]
Thus, having reviewed this line of authority
cited by the Respondent, the dicta of the Federal Court of Appeal prevails in
that only indefinite extensions should not be granted where a party is waiting
for legal aid approval. Further, where an applicant has applied for legal aid
it is necessary that the evidence in support of the request for an extension
provide evidence regarding the timing and status of the application. Further,
this Court retains the discretion to afford an applicant to file a further motion
to correct the deficiencies in the original motion.
[32]
Turning to the facts of this case, there is the
Peter Affidavit providing the chronology of events relating to the decision in
dispute and the attempts to obtain Legal Aid. The Peter Affidavit also describes
what happened with counsel who prepared the Application and her refusal to
continue without Legal Aid approval and, as the son deposes, failed to be
responsive to telephone calls in which the son may have been able to make
alternative arrangements to retain her services.
[33]
It is also clear from the Peter Affidavit that
efforts were made in a timely way to obtain assistance from Legal Aid. The
application herein was issued on February 1, 2016. The denial of legal aid
from the appeal panel of Legal Aid Ontario was received February 26, 2016.
Thereafter, efforts were made by the son on his mother’s behalf to obtain
counsel and were only able to meet with Ms. Bharadwaj on March 11, 2016. Ms.
Bharadwaj had to obtain the file from prior counsel and contacted the Federal
Court registry and was told a motion for an extension was necessary. Ms.
Bharadwaj also contacted the Department of Justice to seek consent but was
apparently advised to serve and file the motion and a decision would be made at
that time. Ms. Bharadwaj, according to the evidence, prepared the motion as
soon as she was able and it was finalized on March 30, 2016. No request for an
indefinite extension is engaged on these facts.
[34]
The Respondent also criticizes the Applicant for
not filing her own affidavit and relying on an affidavit of her son and a law
clerk.
[35]
For this proposition, the Respondent relies upon
Singh v MCI [1996] F.C.J. No. 232, a one paragraph decision of Associate
Senior Prothonotary Giles. Supposedly, this case stands for the proposition
that an applicant is required to provide an affidavit. There is no such rule
set out in that case. Rather, what the case stands for, and is trite law, is
that counsel should not be a witness and counsel on the same matter. It is
improper for counsel to rely on her/his affidavit while appearing as counsel on
that same matter. In Singh the only evidence before the Court which was
found to be both inadequate and improper was that of counsel for the
applicant. The motion for an extension was dismissed but with leave to
re-apply on better evidence.
[36]
In this case, the Peter Affidavit details the
efforts made to obtain legal aid, communications trying to obtain counsel, and,
the difficulties encountered with obtaining the file from previous counsel. It
is direct evidence as the son was involved in the process. As is stated in
paragraph 2 of the Peter Affidavit, “I have been
assisting my mother with her refugee claimant application and appeal process”.
He has direct evidence of the facts.
[37]
There is nothing improper about relying on this
affidavit. One wonders if Respondent’s counsel actually read and understood
the contents of the direct evidence in the Peter Affidavit. If the Respondent
had concerns regarding the veracity of the contents or the completeness of the
evidence, the Respondent could have, but did not, cross-examine. The Peter
Affidavit provides a complete and thorough explanation for the delay.
[38]
In all, the Respondent has failed, on the basis
of the authorities cited, to support the argument that the delay has not been
explained. In my view the evidence from the Applicant’s son provides ample
explanation for the delay and demonstrates a continuing intention to pursue the
application. Thus, these factors as set out in Hennelly for an
extension of time have been met.
VI.
Merits of the Case
[39]
The Respondent argues that there is no arguable
case and thus the extension should not be granted in any event as all four
factors in Hennelly must be satisfied. The written representations of
the Respondent state as follows at para. 10:
10. An extension of time should only
be granted where the Applicant has shown that the Application for an Extension
of Time raises a serious issue and discloses a fairly arguable case, with a
reasonable chance of success on the merits.
[40]
With respect, this sets the bar too high. The
application is not being dealt with on the merits at this juncture of the
proceedings. It is sufficient that some merit be demonstrated. As was noted
in Varga:
The Respondent argues an extension should
not be granted for two reasons: 1) the Applicants have not “shown that the
application for extension of time [sic] raises a serious issue and discloses a
fairly arguable case, with a reasonable chance of success”; and, 2) “this Court
has consistently held that waiting for Legal Aid does not excuse a delay in
filing a record”. Neither of these propositions is supported by the case law.
With respect to the first, only “some” merit need be shown. “Serious issue”,
“fairly arguable case” and “reasonable chance of success” places the bar too
high. It is not on a motion for an extension that weighing the merits to meet
such a test as “serious issue” should take place. Suffice it say that some
merit must be demonstrated which is a relatively low threshold. That low
threshold is met in this case.
As for the argument regarding legal aid
certificates, this argument proceeds on an incorrect premise. . . .
[41]
For its position, the Respondent relies upon Feder
Holdings Ltd. v M.N.R. (Customs and Excise), [1987] CTC 169 (FCA), another
decision of Justice Mahoney. This case involved a motion for an extension of
time to bring an application to set aside a decision under the Customs Act,
S.C. 1986, c. 1. The Court determined that the Court was without jurisdiction
and dismissed the motion. Justice Mahoney did refer to a requirement for a “fairly arguable” case but did not define that phrase
nor provide any analysis of what would be considered “fairly
arguable”. The case does not refer to “serious”
issue or “reasonable chance of success on the merits”.
[42]
The Respondent further argues that “showing” that there is a “serious”
issue and a “fairly arguable” case requires
evidence. The Respondent argues “that it was incumbent
on the Applicant to tender some evidence in this regard” and that even
having attached a copy of the reasons for decision under review the Applicant
has failed to show any errors. Three cases are cited in support of this
proposition: Shanmugaratnam v Canada (Secretary of State), [1994] F.C.J.
No. 1472; Rafique v Canada (Minister of Employment and Immigration),
[1992] F.C.J. No. 864; and Moreno v M.C.I., [1996] F.C.J. No. 218.
[43]
In Shanmugaratnam, Associate Senior
Prothonotary Giles in a short two paragraph order makes the observation that to
obtain an extension three factors must be met of which the third is “whether an arguable case for leave has been shown (the
important word is ‘shown’)”. He then goes on to state:
The reason for the delay is that counsel was
sick and unable to complete the record. In the circumstances outlined, that
might constitute a sufficient excuse. It is, however, not shown that the
applicant has an arguable case. ‘Showing’ requires evidence. There is no
evidence in that regard.
[44]
With respect, I disagree that “showing” or “shown”
always requires evidence. Frequently, some merit can be shown by an analysis
of the decision being reviewed. It can be based on legal argument to the
effect that the tribunal misapplied the relevant law or applied a wrong
principle of law. One does not need evidence of these types of errors by a
tribunal as they flow from the reasons of the tribunal. It is up to
Applicant’s counsel in their written representations to connect the dots for
the Court as to how the tribunal erred. It is only if the merits of the case
is based on facts that may not be apparent from the decision that some cogent
evidence is required. For example, if there are allegations of bias or failure
to afford due process or a failure of the tribunal to consider evidence that
was proffered by an Applicant. These latter circumstances would not
necessarily be evidence on the face of the record or in the reasons of the
tribunal and therefore would require some evidence to show some merit to the
case.
[45]
It is to be noted that in Shanmugaratnam,
the Prothonotary adjourned the motion to allow the Applicant further time to
put evidence before the Court.
[46]
The next case relied upon by the Respondent is Rafique,
a decision of Madam Justice Barbara Reed of the Federal Court – Trial
Division. This case concerned a motion to reconsider an order previously
made. The prior order refused an extension of time. As Justice Reed observed
in this very brief decision with respect to the prior order: “the material on file was so sparse that it could not be
determined whether the application had any merit at all.” On the
reconsideration, Justice Reed determined that there was no authority to grant
the reconsideration request. While this short decision speaks to a need to demonstrate
merit it does not offer any analysis and is simply a statement of the obvious -
that the record should contain enough information to determine if there is some
merit.
[47]
The third case relied upon for the proposition
that the Applicant must provide evidence to show errors in the decision is Moreno.
This is a decision of Prothonotary Richard Morneau who again articulates the
basic proposition that some arguments need to be made to show merit to the
application. Prothonotary Morneau states at para 15 of the decision:
However, there is more. No arguments, even
minimally supported, were made to establish the validity of the record or show
that the applicants had an arguable case. Counsel’s affidavit is silent in
this regard. The written representations in support of the motion merely state
that [translation] “the applicants believe they have serious, genuine grounds
for their application”. As established above, a mere assertion of this kind is
not sufficient.
[citations omitted]
[48]
Again, Moreno simply restates the well-known
proposition that bald statements by an applicant that their case has merit is
insufficient. There must be more than such an empty statement of belief.
[49]
It is therefore necessary to determine if some
merit has been demonstrated in the motion before the Court. The Respondent
argues that there is none and attacks the Connolly Affidavit as being
improper.
[50]
With respect to the Connolly Affidavit, the
Respondent is at least on firmer ground. Much of the Connolly Affidavit
amounts to argument and recitations of information obtained from counsel. In
some circumstances, particularly interlocutory matters, it is acceptable for counsel
to provide information on belief on non-controversial matters. Here, however,
the matters are more substantial and it provides information that properly
belongs in argument as it recites cases and information from the National
Document Package. An affidavit is not required for that information. The
affidavit is disregarded and given no weight [see, M.C.I. v Huntley, 2010
FC 1175 at para 266-271].
[51]
The Respondent argues that no merit is shown as the
decision is founded on the Applicant’s lack of credibility. The Respondent
relies on Sheikh v Canada, [1990] 3 FC 238 (FCA) for the proposition
that it was open to the tribunal to find that the Applicant’s testimony was not
credible because of inconsistencies and therefore cast doubt on the totality of
her evidence. Therefore, the Respondent argues there is no merit to the
application. While Sheikh does make the statement that “a general finding of a lack of credibility on the part of
the applicant may conceivably extend to all relevant evidence emanating from
his testimony”, this statement was made on a full record before the
court. Further, it is not an absolute as it is stated that lack of credibility
“may conceivably” extend to all of the
applicant’s evidence.
[52]
The written representations of the Respondent,
in any event, simply state a conclusion regarding credibility without any
analysis of the reasons for decision. The expectation of the Respondent seems
to be that the Court will analyze the reasons for decision under review without
any guidance from the Respondent as to what parts of the decision support their
position.
[53]
The purpose of argument is to connect the dots
of the evidence and argument. The Respondent has simply not done so. Bare
assertions are not enough.
[54]
In reviewing the written representations of the
Applicant in support of the motion there is a sufficiently arguable case made
out. The Connolly Affidavit is not necessary. In particular, the Applicant’s
written representations refer to errors in the tribunal’s assessment of issues of
law relating to misapplication of the state protection finding; a failure to
conduct the correct analysis to determine the fear of persecution; a failure to
meet the requisite standard of reasonableness; a failure to consider the
objective basis of the Applicant’s claim to risk; and, misapplication of the
law by premising one finding on another.
[55]
There is little doubt in my mind that the arguments
put forth by the Applicant are sufficient to meet the “merit”
test. It may be that once the records are complete that these arguments may
not stand up to scrutiny. But that is to be determined on the records of the
parties and, if leave is granted, on the record and argument before the
hearings judge.
[56]
In my view, an interlocutory motion for an
extension of time is not the place to determine substantive issues. Where
issues are raised which require a careful analysis of the tribunal’s decision
those should be left to be determined on a full record before a hearings
judge.
[57]
The Respondent did not argue that it was
prejudiced by the granting of an extension. There is no prejudice in the
circumstances of this case. This test from Hennelly has been met. The
Respondent, on the facts of the case, quite rightly, did not argue that the
Applicant did not demonstrate a continuing intention to pursue the Application
had been shown. This test from Hennelly has also been met. Further, the
justice of the case supports granting an extension.
[58]
For all of these reasons an extension is
warranted. An extension of 19 days is granted.
[59]
On a final note, self-represented litigants
should be encouraged to seek legal assistance. It should be apparent that an
applicant having the assistance of counsel is beneficial to the administration
of justice. It is often the case that those who are caught up in the
immigration maze and who seek to judicially review negative tribunal decisions are
without the ready means to retain counsel to pursue their rights. They often
act for themselves. They do not understand the intricacies of immigration law
or the intricacies of the Court process. They, the Respondent, and the Court, are
greatly aided from the assistance of counsel. Thus, efforts to obtain Legal
Aid or pro bono assistance from organizations such as Pro Bono Law
Ontario should be encouraged so long as it is pursued in a timely way.
Fairness and access to justice should be the goal.
Email this Content