Pistan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 774

Date: 20010706

Docket: IMM-512-01

Neutral Citation: 2001 FCT 774

OTTAWA, Ontario, Friday, this 6^th day of July, 2001.

PRESENT: The Honourable Mr. Justice MacKay

BETWEEN:

                                                   JAVIER FRANCISCO PISTAN

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

MacKAY J.

[1]                On May 23, 2001, I ordered that the applicant's "application for an extension of time is dismissed, and the application for leave is dismissed due to the failure of the applicant to file an Application Record".

[2]                The applicant, by motion dated June 7, 2001, seeks reconsideration of that Order, an extension of time to file the motion for reconsideration, and an extension of time to file material in support of the application for leave to commence judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division.

[3]                Grounds for the motion are said to be that "the Applicant could not qualify for legal aid and has been unable to pay for the services of a lawyer", "the Applicant is now prepared to file a record" and "special reasons exist for the granting of reconsideration and extension in that failure by the Applicant to file the record in support of his application for leave would expose him to risk of being removed to Argentina". Those grounds are supported by the affidavit of Larry Gabriel Colle of Toronto, Ontario.

[4]                The motion makes reference to Rule 399(1)(b) of the Federal Court Immigration Rules, 1998. That Rule provides authority for the Court, on a motion, to set aside or vary an order that was made "in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding". No facts are alleged that would provide a basis for the Court to now set aside its Order of May 23, 2001, under that Rule.

[5]                Further, the facts alleged do not bring the circumstances of the applicant's case within Rule 397, the usual basis for a motion for reconsideration. That Rule provides that within ten days after the making of an order or such further time as the Court may allow, a party may serve and file a motion requesting reconsideration on grounds that the order does not accord with the reasons given, or that a matter that should have been dealt with has been overlooked or accidentally omitted. Those are not the circumstances here.

[6]                Inability to qualify for legal aid and inability to retain counsel because of limited finances are not acceptable explanations for delay that would warrant an extension of time to file a motion or a motion record in accord with the Court's Rules. While an individual may be well advised to have counsel to represent him or her in judicial proceedings, he or she may also self-represent as the applicant in this case now appears ready to do. Failure to do so earlier, and a decision to do so now, is not a basis for the Court to grant an extension of time. There simply is no basis for the Court to set aside its Order of May 23, 2001.

                                                                     O R D E R

THIS COURT ORDERS that the applicant's motion for an extension of time and for reconsideration of the Court's Order of May 23, 2001, is dismissed.

                                                                                                                     (signed) W. Andrew MacKay

                                                                                                                                                JUDGE

OTTAWA, Ontario

July 6, 2001.