Alavinejad v. Canada (Minister of Citizenship and Immigration), 2005 FC 553

Date: 20050422

Docket: IMM-1701-05

Citation: 2005 FC 553

BETWEEN:

                                               FARHAD MOUSAVI ALAVINEJAD

                                                                                                                                            Applicant

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

HARGRAVE P.

[1]         This motion for a time extension arises out of an attempted, but unsuccessful, late filing of the Applicant's record.

[2]         The legal assistant to the Applicant's lawyer initially miscalculated the time for filing by one day, planning on serving and filing the record the next day. On the day that the record was due to be served and filed, counsel realized the error: he and a student left their office at 16:15 on 14 April 2005 to go to the Registry to file the material. Even driving as furiously as Jehu, son of Nishi (2 Kings 9:20), they became embroiled in traffic, the side effects of someone else's accident and some road construction: counsel therefore advised the Registry that they would be late. They reached the Registry at about 16:45, a quarter of an hour or perhaps a little more after closing time. The Registry let in the person seeking to file the material, however the Registrar refused to accept the record, a move not in keeping either with the position of the Federal Court as a service organization or with Federal Court Rule 72.

[3]         In the present instance, counsel for the Applicant obtained a consent to late filing from his out of town friend, prepared and bound a motion record seeking a time extension, the motion record being complete with affidavit, consent, written argument and a copy of an on point case, filing it the next day, 15 April 2005. The material arrived on this prothonotary's desk, under cover of a memo of 18 April 2005, on 21 April 2005.

[4]         It may be that Halifax Shipyard v. Canada (1996) 113 F.T.R. 222 applies, although that was a service case, in which service had been effected shortly after 5:00 p.m. In that instance service was within ample time of that mandated before the hearing of the motion, with Mr. Justice MacKay of the view that the service was not technically outside of the Rules. In the present instance the time for filing still had several hours to run.

[5]         More on point is the Rule in Hyperphase Technologies, LLC v. Microsoft Corporation, a 1 July 2003 decision of Magistrate Judge Stephen L. Crocker, of the United States District Court for the Western District of Wisconsin, No. 02-C-647-C, better known as the Flyspeck Case:

Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this court's deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don't know this personally because I was home sleeping, but that's what the court's computer docketing program says, so I'll accept it as true.

Microsoft's insouciance so flustered Hyperphrase that nine of its attorneys, namely Mark A. Cameli, Lynn M. Stathas, Andrew W. Erlandson, Raymond P. Niro, Paul K. Vickrey, Raymond P. Niro, Jr., Robert Greenspoon, Matthew G. McAndrews, and William W. Flachsbart, promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one's foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft's temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

Wounded though this court may be by Microsoft's four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up to seventy-two minutes later.

Having spent more than that amount of time on Hyperphrase's motion, it is now time to move on to the other Gordian problems confronting this court. Plaintiff's motion to strike is denied.

[6]         It is common procedure, where a Registrar can be made available and the circumstances are special or warrant such, to hold the Registry open, or indeed to open the Registry, in an emergency, or perhaps as an accommodation in order to avoid embarrassment and extra unnecessary work. The Registry being opened, it is unseemly to deny services, just as the accommodated customer presents documents. If the Registry felt concern about whether or not to file the tendered material, the Registry is required, by Rule 72, which is mandatory, either to accept a document for filing or to refer it to a judge or prothonotary without delay:

This Rule deals with both irregular documents and with instances in which conditions precedent to filing, which would include time limits, have not been fulfilled.

[7]         Granted, in the present instance, the filing attempt was not late by a mere four minutes and twenty-seven seconds, as was the case in Hyperphase, but was some fifteen minutes late. However, all concerned have now wasted much time, effort and money, including the money of taxpayers.

[8]         The application record is to be accepted for filing nunc pro tunc, with time to run against the Respondent beginning 25 April 2005.

(Sgd.) "John A. Hargrave"

    Prothonotary

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-1701-05

STYLE OF CAUSE: Farhad Mousavi Alavinejad

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                  Hargrave P.

DATED:                                                          April 22, 2005

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: