Date: 19960703
Docket: IMM-1600-95
BETWEEN:
THALAYASINGAM SIVAKUMAR
Plaintiff
and
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendants
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
June 29, 1998 as edited)
ROTHSTEIN, J.:
1 The defendants, by motion filed June 23, 1998, seek an extension of time with which to serve and file a notice of appeal to the Federal Court of Appeal from the March 5, 1998 disclosure order of Teitelbaum J.[1]
2 The defendants concede that the notice of appeal should have been filed within 10 days after March 5, 1998. However they say they brought a motion for reconsideration within time before Teitelbaum J. which was dismissed on May 28, 1998. The defendants say the reconsideration application evidences a continuing intention to appeal and that they have brought the extension application within a reasonable period of time after dismissal of their reconsideration application. They say that they also have satisfied the other indicia which the Court may consider on an application to extend time; i.e. the existence of an arguable case, that the delay is not excessive, the absence of prejudice to the respondent and the interests of justice.
3 This motion raises the issue of whether the filing of a reconsideration application explains the delay and justifies an extension of time to file a notice of appeal. Rule 337(5) of the former Federal Court Rules[2](now Rule 397 of the Federal Court Rules, 1998)[3]provided that the Court could reconsider a judgment on the grounds that it did not accord with the reasons or that some matter was overlooked or accidently omitted. The grounds for reconsideration are narrow. Generally they involve inadvertent mistakes or omissions that should be rectified by the judge who rendered the original judgment. Very often the mistake or omission is obvious. Except in these narrow and often obvious circumstances, a dissatisfied litigant's recourse is an appeal.
4 The defendants appear to have thought that they could seek reconsideration first and would appeal only if they were unsuccessful. They say that duplication of proceedings should be avoided and that it would be wasteful of resources to take both reconsideration and appeal proceedings concurrently. This argument is premised, incorrectly in my view, on the proposition that reconsideration and appeal are interchangeable forms of relief. They are not. Reconsideration deals with inadvertent mistakes or omissions. An appeal involves acceptance of the lower court judgment as is but disagreement with its conclusion. Litigants must decide which recourse to seek. Where they are in doubt, it is likely that reconsideration will not be the appropriate recourse. In any event, a notice of appeal should be filed in a timely manner. Except in the most unusual circumstances, the filing of a reconsideration application does not justify a delay in filing a notice of appeal.
5 The defendants have not justified their delay of over three months in seeking to file a notice of appeal. The extension application is dismissed.
6 The defendants also seek a stay of the disclosure order of Teitelbaum J. of March 5, 1998 pending the filing of a notice of appeal in the Federal Court of Appeal[4]. As the extension to file the notice of appeal is dismissed, there is no basis for the stay and the stay
7 application is also dismissed.
"Marshall Rothstein"
Judge
Toronto, Ontario
July 3, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1600-95
STYLE OF CAUSE: THALAYASINGAM SIVAKUMAR
- and -
HER MAJESTY THE QUEEN ET AL.
DATE OF HEARING: JUNE 29, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: JULY 3, 1998
APPEARANCES:
Ms. Marie-Claude Rigaud
For the Plaintiff
Ms. Marie-Louise Wcislo
For the Defendants
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Plaintiff
George Thomson
Deputy Attorney General
of Canada
For the Defendants
FEDERAL COURT OF CANADA
Date: 19980703
Docket: IMM-1600-95
Between:
THALAYASINGAM SIVAKUMAR
Plaintiff
- and -
HER MAJESTY THE QUEEN ET AL.
Defendants
REASONS FOR ORDER
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