Date: 20010928
Docket: IMM-2998-01
Neutral citation: 2001 FCT 1075
Toronto, Ontario, Friday the 28th day of September, 2001
PRESENT: Peter A.K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
GYULA SZAMKO
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] The motion before me seeks an extension of time within which to file the Applicant's record. The grounds cited in the Notice of Motion include section 7 of the Charter that the Respondent will suffer no prejudice and that the Applicant never abandoned his intention to proceed.
[2] Section 7 of the Charter deals with life liberty and security of the person, perhaps if counsel had realized his failure to file the Applicant's record within time was going to affect the life liberty and security of the person he would had taken more care in counting the days. In any event, nothing is shown as to why these matters would be affected should the extension of time not be granted.
[3] In this Court numerous cases have been reported which indicate that in addition to showing no prejudice to the opposing parties, the party seeking an extension of time to file a record must excuse any delay. The party must also show the existence of an arguable case for leave.
[4] The Applicant here makes no attempt to excuse the delay, but indicates it was caused by a solicitor's error and cites the University of Saskatchewan v. C.U.P.E. et. al., [1978] 2 S.C.R. 830 where Mr. Justice Pigeon allowed an extension of time. There, an excuse was tendered but Pigeon J. did not consider it reasonable. Thus, he was able to say:
"There is nothing before me in the nature of a reasonable excuse."
Nevertheless, an extension of time was granted.
[5] In reaching his conclusion, Pigeon J. considered Cité de Pont Viau v. Gauthier Mfg. Ltd.,[1978] 2 S.C.R. 516 as the authority. In that case, Pratte J. obviously was swayed by the fact. There was no suggestion that the case might be frivolous or vexatious.
[6] In neither, the University of Saskatchewan nor Cité de Pont Viau was the Court dealing with an application for leave. In my view, the application for leave changes the onus. In Cité de Pont Viau those opposing would have had to show the motion to be frivolous. When the party has to seek leave, it is up to the party to show the matter not to be frivolous. That would be done by showing the existence of an arguable case. The existence of a case is not one of the grounds shown in the notice of motion nor is the matter referred to in the moving party's representations.
[7] It is my view that it is not sufficient merely to show the delay was caused by counsel's error.
[8] The motion here is supported by the affidavit of the counsel making the representations which is prohibited by rule 82. I note that the affidavit exhibits the record for which leave is sought. I question the propriety of exhibiting the document and thus getting it before the Court. Also, I doubt that producing the document shows the existence of an arguable case for leave. It merely provides material from which the Court might find that an arguable case exist.
[9] The motion will be dismissed, but because the minimum delay is more an irritation than a prejudice I will dismiss with leave to reapply on better evidence.
ORDER
1. Motion dismissed with leave to reapply within 14 days of the date of this order on better evidence.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 28, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2998-01
STYLE OF CAUSE: GYULA SZAMKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: FRIDAY, SEPTEMBER 28, 2001
WRITTEN SUBMISSIONS BY: Mr. Roger D. Rodrigues, LL.B.
For the Applicant
Ms. Urszula Kaczmarczyk
For the Respondent
SOLICITORS OF RECORD: GALATI , RODRIGUES and ASSOCIATES
Barristers and Solicitors
637 College Street
Suite 203
Toronto, Ontario
M6G 1B5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010928
Docket: IMM-2998-01
BETWEEN:
GYULA SZAMKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
Email this Content