Canada (Minister of Citizenship and Immigration) v. Simakov, 2001 FCT 469

                                                                                                                                          Date:    20010511

                                                                                                                             Docket No.:    T-2120-00

                                                                                                              Neutral Citation: 2001 FCT 469

Ottawa, Ontario, this 11^th day of May, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Applicant

                                                                              - and -

                                                                 ALEXEI SIMAKOV

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is a motion by the respondent, Alexei Simakov, for an order allowing the respondent an extension of time for serving and filing a Notice of Appearance in Form 305 pursuant to Rule 305 of the of the Federal Court Rules, 1998, SOR/98-106, an extension of time for serving and filing the respondent's affidavits pursuant to Rule 307, an extension of time for serving and filing the respondent's application record pursuant to Rule 310, and a rescheduling of the hearing date which has been set for May 15, 2001.

[2]                 Extensions of times are governed by Rule 8 of the Federal Court Rules, 1998 which reads:

8. (1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.

8. (1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.

[3]                 McDonald J.A., in Canada v. Hennelly (1999), online: QL, F.C.J. No. 846 at paragraph 3, recently enunciated the criteria to be met by a party seeking an extension of time.

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.

[4]                 Further, there are additional factors which may be considered and which were canvassed by the Federal Court of Appeal in the Grewal decision, (1986), 63 N.R. 106 (F.C.A.). In the words of Chief Justice Thurlow (at page 272 and at 277-78):

... which, it seems to me, must be borne in mind in dealing with any application of this kind, is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension.

...

... in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not ... fettered.

[5]                 In separate reasons, Justice Marceau emphasized (at page 282):

...It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay.

[6]                 Applying these principles to the case at bar, I am satisfied, based on the affidavit of the respondent, that he had a continuing intention to pursue his application and I also find that based on the motion record that the application has merit and the respondent has established an arguable case.

[7]                 I have also considered the nature of the right involved in the proceedings, the remedy sought and its effect on the respondent, the prejudice to the applicant should the extension be granted, the time lapse since the filing of the application, and the fact that the respondent, until very recently, was self-represented.

[8]                 Although I find the explanation for the delay wanting, in the circumstances presented, It is my view that justice would require the grant of the extension and I will so order.

                                                                           ORDER:

THIS COURT ORDERS that:

1.         The motion for an extension of time allowing the respondent an extension of time for serving and filing a notice of appearance, an extension of time for serving and filing the respondent's affidavits, an extension of time for serving and filing the respondent's application record is granted.

2.         The respondent shall serve and file his notice of appearance within five (5) days of the date of this order.

3.         After the filing of the said notice of appearance, the parties shall comply with the time limits and procedural steps provided for in Part 5 of the Federal Court Rules, 1998.

4.        The hearing, which has been set for May 15, 2001, will be rescheduled by the Judicial Administrator of this Court.

5.        No costs are awarded.

                                                                                                                               "Edmond P. Blanchard"            

                                                                                                                                                               Judge