[1] The Applicant, Ms Muhammed, by the present motion seeks a nominal extension of time in which to serve and file the record. As set out in the reasons which follow I allow that request for a time extension. First, however, some relevant background.

RELEVANT BACKGROUND

[2] The Applicants' difficulties began with her move from Victoria to Vancouver, following her unsuccessful immigration hearing. Victoria counsel filed the required application for leave and judicial review in a timely manner on 9 April 2003. Thus the Applicant's record would due 9 May 2003.

[3] The Applicant, with the assistance of Legal Services Society of British Columbia, in Vancouver, retained counsel in Vancouver, Mr Carlos Charles: Mr Charles provided confirmation to the Legal Services Society on 10 April 2003 that he was acting for the Applicants. However, on 16 May 2003, over a month after he had been retained and a few days after the record should have been served and filed, Mr Charles advised the Legal Services Society that he was unable to proceed Ms Muhammed's case by reason of his workload, but that he had asked present counsel, Mr Kajoba, to take up the file and to that end Mr Charles provided a change of lawyer form.

[4] The Applicant, Ms Muhammed, and her child, were left with a new lawyer a week after the record should have been served and filed and thus a need to obtain an extension of time to serve and file the record. Mr Kajoba appears to have acted promptly to get matters in hand and now brings the present motion for a time extension.

CONSIDERATION

[5] Both counsel are in agreement that the appropriate test for a time extension is Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.). In Canada (Attorney General) v. Hennelly (1995), 91 F.T.R. 317 (F.C.T.D.) Mr Justice Muldoon dealt with motion in writing for an extension of time within which the Crown, as applicant, might file a record. There the Crown had intended to proceed but inadvertently had let the time for the filing of the record slip by. Mr Justice Muldoon did not form a good opinion of the opposition by Mr Hennelly, for he wrote:

4. One can certainly sympathize with the applicant's plight. Busy lawyers sometimes do forget to meet time limitations (perhaps even more often than the public realize). Any judge of this Court knows how often, when the shoe is on the other foot, the Attorney General graciously and generously consents to a like motion made by a member of the public or other individual. No one relishes the impalement of an earnest party to proceedings on the sharp point of a time limit, even although proceedings such as this one are meant to be summary and expeditious.

Here the Crown, borrowing the image of Mr Justice Muldoon in Hennelly, wishes to impale the Applicants "on the sharp point on a time limit ...". While Mr Justice Muldoon had sympathy for the Crown in Hennelly, inadvertent delay was not a sufficient ground for a time extension.

[6] The Court of Appeal in Hennelly recognised that "... it is usually routine for parties to consent to extensions of time in circumstances such as these and equally routine for the Court to allow an extension on this basis." (page 399). The Court of Appeal then went on to set out the test for a time extension:

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.

(Page 400)

The Court of Appeal observed that justification for a time extension would turn on the facts of the particular case.

[7] Also to be applied in considering a time extension is Grewal v.M.E.I., [1985] 2 F.C. 263 in which both Chief Justice and Mr Justice of Appeal Marceau pointed to the need, in the case of any time extension, to do justice between the parties: see pages 272, 280 and 282. At page 282 Mr Justice of Appeal Marceau noted that the various factors going to justify a time extension must be balanced one against the other. Thus I should balance the applicable factors set out by the Court of Appeal in Hennelly with the overall objective of doing justice between the parties.

[8] In the present instance I am satisfied that at least the Applicant, for herself and her child, had the required continuing intention to pursue this application.

[9] The Crown submits that there is not an arguable case and thus the application has no merit because the Immigration and Refugee Board rejected the claim of Ms Muhammed and her son on the ground they had failed to provide credible and trustworthy evidence of the personal identities. I agree with the Crown that any new evidence which the Applicants wish to tender, which I understand include additional identity documents, would be irrelevant, for that was not before the Board when it made its decision.

[10] Counsel for the Applicants takes a somewhat different tack. He begins by pointing out that a time extension does not depend upon some form of an absolute case, but rather that there be sufficient grounds which could be argued, referring to Valyenegro v. Canada (Secretary of State) (1994), 88 F.T.R. 196 (F.C.T.D.) at 199:

With regard to showing [an] arguable case for leave, what is required at the time ... [the] ... extension is considered is not a sufficient reason for leave to be granted but evidence that there exist sufficient grounds that a case for leave could be argued when the matter of leave is subsequently considered by a judge.

Counsel for the Applicants submits that the finding of the Board that there was no credible basis for the claim, was based on an alleged failure by the Applicants to satisfy the tribunal of their identities. However it would seem that this determination of no credible basis is founded on a failure to provide enough credible and trustworthy evidence to establish her identity and the identity of her son. Here counsel for the Applicants makes two points. First, a finding of no credible basis must be based on the totality of the evidence, not just upon the claimants' personal identity. Counsel refers to several cases, however the case which best support this proposition is Siba v. Canada (MCI), 2001 FCT 1380, an unreported 11 December 2001 decision of Madam Justice Tremblay-Lamer in file IMM-6327-00, in which she held that the Immigration and Refugee Board, among other things, failed not only to specifically assess the evidence as a whole but also gave no specific explanation for its conclusion that there was no credible basis for the applicant's claim. In that decision Madam Justice Tremblay-Lamer referred to Seevaratnam v. Canada (M.C.I.), (1999) 167 F.T.R. 130 (F.C.T.D.) at paragraph 11 where she set out her view:

In my opinion, the Board failed to consider all of the evidence before it and simply denied the Applicant's claim because it did not find her credible. In the circumstances of this case, there was still evidence remaining which could have affected the assessment of the claim. Therefore, this evidence should have been expressly assessed.

She then went on to say, in Siba that:

19. When the documentary evidence is relevant I also consider, in view of the serious consequences resulting from a finding under s. 69.1(9.1), that the tribunal is required to specifically indicate the reasons leading to its application based on the objective evidence.

20. In the case at bar, the tribunal did not specifically assess the evidence as a whole, and the latter included a medical and psychological report which corroborated the applicant's story about the injuries sustained. It also gave no specific explanation of the reasons leading it to conclude that there was no credible basis pursuant to s. 69.1(9.1) of the Act.

Here I should add that section 69.1(9.1) of the former Immigration Act gave directions to the tribunal as to dealing with the situation where there is no credible basis for a claim.

[11] In the present instance the reasons to be reviewed are relatively thorough, however in reading through those reasons, there may be room to argue that the tribunal did not assess the evidence as a whole or that, in view of the serious consequences, set out reasons leading clearly and cogently to the finding that there is no credible basis for the claim. The argument is not a strong one, but it is possible.

[12] I now turn to the matter of prejudice. Both counsel thought they should argue prejudice to the Applicants. That sort of argument may certainly be uppermost in mind of an applicant facing deportation. However the Court of Appeal in Hennelly makes it clear that what is to be examined is prejudice to the respondent arising from the delay. In this instance the length of the delay is not great enough that I can assume any prejudice to the Respondent, nor was I referred to any specific prejudice to the Respondent.

[13] The portion of the Hennelly test that gives me the most difficulty is whether there is a reasonable explanation for the delay. As I have indicated the delay was caused by counsel who, through pressure of work, completely let the Applicants down by failing to make a filing on time and then deserting the Applicants, leaving new counsel to try to pick up the pieces after the fact. The relief available to the Applicants as against the lawyer who let them down is, in a sense, illusory, because the sort of prejudice that they may suffer, that of deportation because their lawyer failed to protect and perfect their case, cannot be compensated for in money.

[14] The difficulty faced by the Applicants lies in the concept that pressure of work is not a reasonable explanation for delay. The case usually referred to for this proposition is Chin v. Canada (MEI) (1993), 69 F.T.R. 77 (F.C.T.D.). Chin is based on the proposition that counsel and client, in the case of a missed deadline, are one and the same. With that in mind an approach to the problem is set out by Madam Justice Reed at pages 79 and 80:

7. I think I should set out my approach to motions for extensions of time. I start with the premise that the time limits set out in the Rules are meant to be complied with. If they are too short then requests should be made to have the Rules amended so that the time limits are lengthened. I do not grant requests for extensions of time merely because it is the first time that counsel has asked or because the work load which counsel has assumed is too great. I think such decisions are unfair to those counsel who refuse clients because their work load is too heavy to allow them to meet required deadlines or who "pull out all the stops" to meet the deadlines, at great inconvenience to themselves. As I have indicated I take the view that the time limits set out in the Rules are meant to be complied with and they are meant to apply to everyone equally. If an automatic extension was meant to be available merely because counsel seeks one, then, the Rules should provide for such an automatic extension, for everyone, when such is sought.

8. On what grounds then do I grant an extension of time. I have already indicated that, in general, I am not receptive to requests which are based solely on the work load counsel has undertaken. When an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event.

There is no evidence in the present instance of an unanticipated cause from the point of view of former counsel for the delay, but merely evidence to the effect that former counsel did not file the material because of pressure of work. Former counsel then turned the matter over to a new lawyer when the damage was done. In Chin Madam Justice Reed summed up the result of all of this at page 80:

10. I know that Courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purposes are one. It is too easy a justification for non-compliance with the Rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced. I come back again to the question of fairness. It is unfair for some counsel to be proceeding on the basis that barring unforseen events the time limits must be met and for others to be assuming that all they need do is plead overwork, or some other controllable event, and they will be granted at least one extension of time. In the absence of an explicit rule providing for the latter I proceed on the basis that the former is what is required.

[15] The issue now becomes whether the Chin case is distinguishable and if not, whether there is an alternative.

[16] New counsel for the Applicants point out that Chin involved one lawyer, but here there were three: the first counsel, in Victoria, filed the application for leave and judicial review in a timely manner; the second counsel, in Vancouver, took on the file on the next day after that filing, but failed by reason of workload to make the next required filing within the allowed 30 days; and the present Vancouver counsel, who took over after time had run, and is trying to pick up the pieces. Unfortunately, even though the Applicants actively tried to remedy the problem by retaining new counsel, I do not see any of this as being helpful to the Applicants, for on the analysis set out in Chin, the Applicants fall heir to the failure on the part of the second counsel, who missed the filing date.

[17] An alternative approach is whether, in this instance, relief ought to be afforded the Applicants on the basis of natural justice. Lawyers are often hesitant to label another lawyer as incompetent. Present counsel for the Applicants went so far as to admit that the Applicant, Ms Muhammed, with the assistance of the Legal Services Society retained, in a timely fashion, a lawyer who completely failed the Applicants. I considered and summarized the law in the area of allegations of incompetent counsel in Frankel v. Canada (MCI) (1998), 148 F.T.R. 8 (F.C.T.D.) at paragraph 11:

11. Generally speaking it is not for the Courts to deal with allegations of incompetence of counsel: see Williams v. Minister of Employment and Immigration (1994), 74 F.T.R. 34 (T.D.), at p. 38. In an extraordinary case, competency of counsel may give rise to a natural justice issue. However there is a heavy burden on an applicant to come within this exception: see for example Sheika v. Minister of Employment and Immigration (1990), 112 N.R. 61; 71 D.L.R. (4^th) 604, at p. 611 (F.C.A.) [D.L.R.]; Huynh v. Minister of Employment and Immigration (1994), 65 F.T.R. 11; 21 Imm. L.R. [(2d)] 18, at p. 21 [Imm. L.R.] and following (T.D.); Shirwa v. Minister of Employment and Immigration (1994), 71 F.T.R. 136; 23 Imm. L.R. (2d) 123 (T.D.), at p. 128 [Imm. L.R.] and following (T.D.); and Drummond v. Minister of Citizenship and Immigration (1996), 112 F.T.R. 33 (T.D.) [a] decision of Mr. Justice Rothstein, who sums up the law in this area:

"... The authorities are to the effect that as a general rule, where counsel is freely chosen, it is the professional accreditation body such as the Law Society of Upper Canada... and not the Courts which have the mandate to deal with incompetence of counsel; .... However, in extraordinary cases, competency of counsel may give rise to a natural justice issue. In such cases, the facts must be specific and clearly proven; .... (page [35]). "

[18] In Shirwa v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 123 (F.C.T.D.) Mr Justice Denault dealt with clear incompetence exhibited by counsel during a hearing. In the course of allowing the initial review application in Shirwa he referred to Mathon v. Canada (Minister of Employment and Immigration) (1988), 28 F.T.R. 217 (F.C.T.D.) and observed, at page 130 of Shirwa that:

Where, through no fault of the applicant, the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred. (Mathon)

[19] Mathon is on point and helpful. In that case, through no fault of the client, who had done all that was required of her, counsel failed, by oversight, to make a filing of a redetermination application in a timely manner. Mr Justice Pinard considered the skill and care required of counsel, as set out in Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at 208. At page 229 of Mathon, he set out the right of Ms Mathon to be "... represented by a careful and/or competent counsel" and then observed:

[23] It is precisely because of the error and/or negligence of her counsel, who did not file the application for redetermination within the required deadline even though the applicant had signed it at the proper time, that the applicant was deprived of a full and complete hearing before the Immigration Appeal Board. Accordingly, as the exclusion was solely the result of a lawyer's error and/or negligence, a litigant who has acted with care should not be required to bear the consequences of such an error or negligence. (loc. cit.)

Mr Justice Pinard then referred to [1977] 2 S.C.R. 121">R. v. Barrette, [1977] 2 S.C.R. 121 and a passage from the reasons of Mr Justice Pigeon at page 124:

The appeal is based on the dissenting opinion of Casey J. who, after quoting the second paragraph of the report and the following two sentences, said:

While the unexplained conduct of Appellant's lawyer is to be deplored and while appropriate sanctions should be imposed or at least considered by the proper authorities, I see no justification for punishing Appellant for the sins of his lawyer or because the trial courts are running behind. These are matters over which Appellant had no control and they must not be allowed to deprive him of the full and fair trial to which he is entitled. By obliging him to go on without the benefit of counsel and by permitting, perhaps forcing, him to be examined (at p. 39) the trial judge did just that.

Here Mr Justice Piegon makes the point that there is "...no justification for punishing Appellant for the sins of his lawyer ...". Following a survey of Canadian case law Mr Justice Pinard observed:

In the case at bar ... the opportunity of a complete hearing before the Immigration Appeal Board is an essential aspect of compliance with the rules of fundamental justice in the general procedure of considering a claim for refugee status. This is the very opportunity which the applicant lost because of the error and/or negligence of her first counsel.

(Page 231)

Mr Justice Pinard went on to extend time.

[20] Chin and Mathon are difficult to reconcile. In Chin the focus is on the concept that client and counsel are one and the same, thus the client is dragged under by the weight of the incompetent counsel. In Mathon, the case of the missed filing date, the focus, by way of Supreme Court of Canada authority, is on the concept that a client "who has acted with care should not be required to bear the consequences of such an error or negligence" (page 229). This is all the more the situation where the client lost a right as a result.

[21] In choosing between the two approaches it is fitting to turn to Grewal (supra) which requires me to balance the factors bearing on a time extension with the overall view of doing justice between the parties. I will follow the line of cases culminating in Mathon, for the present instance presents the clear and specific case referred to by Mr Justice Rothstein, as he then was, in Drummond (supra). Taking all of the circumstances into consideration, including the continuing intention to pursue the application; the merit of the application; the lack of any prejudice accruing to the Respondent by reason of delay; the explanation for the delay and particularly that it was former counsel who, by abandoning the Applicants after allowing time to run, deprived the Applicants of their right; and that to terminate this judicial review proceeding on the basis of the procedural negligence and/or incompetence of former counsel would constitute a windfall to the Crown, a time extension is appropriate. Costs shall be in the cause.

(Sgd.) "John A. Hargrave"

Prothonotary

Vancouver, British Columbia

3 July 2003

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-2547-03

STYLE OF CAUSE: Zeynup Muhammed et al. v. The Minister of Citizenship and Immigration

PLACE OF HEARING: Vancouver, British Columbia

DATE OF HEARING: 26 June 2003

REASONS FOR ORDER: Hargrave P.

DATED: 3 July 2003

APPEARANCES:

Moses Kajoba

R Keith Reimer

FOR APPLICANTS

FOR RESPONDENT

SOLICITORS OF RECORD:

Kajoba & Company

Barristers & Solicitors

Vancouver, British Columbia

Morris A Rosenberg

Deputy Attorney General of Canada

Department of Justice

Vancouver, British Columbia

FOR APPLICANTS

FOR RESPONDENT

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Muhammed v. Canada (Minister of Citizenship and Immigration), 2003 FC 828

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