Espejo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 282

                                                                                                                                            Date: 20020314

                                                                                                                  Court File No.: IMM-1862-01

                                                                                                               Neutral Citation: 2002 FCT 282

Ottawa, Ontario, this 14^th day of March, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                         GUSTAVO DANIEL ESPEJO

                                                       DANIEL FRANCISCO ESPEJO

                                                         MARIE CRISTINA GUAITA

                                                                                                                                                      Applicants

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

REASONS FOR ORDER AND ORDER

1.                    This is a motion for an order to set aside or vary the order of Mr. Justice Denault rendered on June 18, 2001, dismissing the applicants' application for leave for judicial review due to the failure of the applicants to file an applicants' record, and for an extension of time to file the applicants' application record.

FACTS

2.                    The applicants are citizens of Argentina who do not speak, write or read English. Their mother tongue is Spanish.

3.                    In August 2000, the principal applicant, Gustavo Daniel Espejo, retained the legal services of Reverend Daniel McLeod to represent him with respect to his immigration matters.

4.                    On December 6, 2000, the applicants were represented by Reverend McLeod at their hearing before the Convention Refugee Division of the Immigration and Refugee Board (the "Refugee Division").

5.                    On February 12, 2001, the applicants were notified that their claim for refugee status was denied and that they had fifteen (15) days within which to file an application for judicial review before the Federal Court of Canada.

6.                    In February of 2001, the principal applicant instructed Reverend McLeod to proceed with a judicial review application before the Federal Court of Canada before the expiration of the fifteen (15) day limitation period expired.

7.                    The principal applicant paid Reverend McLeod a total of $300.00 to represent him on the judicial review and attended at his office on February 15, 2001, to sign a document entitled "Application for Judicial Review".

8.                    On or about June 25, 2001, the principal applicant was notified by the Registry of the Court by correspondence, that "the application for leave is dismissed due to the failure of the applicant to file an Application Record."

9.                    On or about June 25, 2001, the principal applicant visited Reverend McLeod with the Order of Mr. Justice Denault. Reverend McLeod assured the applicant that everything was fine and that he would take care of the situation by appealing to the Federal Court of Canada. The appeal would cost the applicant a further $200.00, which sum was paid to Reverend McLeod on July 3, 2001.

10.              On September 12, 2001, having lost confidence in Reverend McLeod, the principal applicant retained his current lawyer who obtained a copy of the Court file. The Court file revealed that a certain Larry G. Colle, unknown to the applicants, had sworn an affidavit containing false information pertaining to the applicants' case. According to the applicants, the affidavit was sworn without their knowledge or authorization and contained false declarations about the applicants and the circumstances surrounding their failure to file an application record before the Court.

11.              For the purpose of this analysis it is useful to reproduce the first three paragraphs of the affidavit of Larry G. Colle, sworn July 11, 2001:

1. I am well acquainted with the Applicants herein through my affiliation with St. Jude Chapel. The applicants did not have the means to pay legal counsel and were unable to obtain legal aid. I am cognizant of the salient facts adduced during their hearing before the Refugee Division Panel and I have reviewed all pertinent evidence, including the Decision of the Refugee Division and, as such , I have full knowledge of all of the facts herein deposed to. Attached, as Exhibit A is the Decision of the Refugee Division.

2. St. Jude Chapel assisted the Applicants to prepare and file an Application for Leave and Judicial Review with this Honourable Court. I am informed and do verily believe that they again sought legal assistance to file a Record but were unable to meet the fees required by a practitioner.

3. The applicants have further informed me that they are unable to bear the full costs of preparing this Motion and have therefore sought my assistance in this regard as well.

12.              The principal applicant states that he never met Larry G. Colle and had never spoken to him nor could he recognize him if he was to see him. The principal applicant also states that he paid Reverend McLeod to file and perfect his application for judicial review and did not seek legal assistance to file such an application since he was represented by Reverend McLeod, nor was he unable to meet the fees by any other practioner as alleged by Larry Colle. Finally, the principal applicant states that Mr. Colle's declaration that his failure to file his application record within the 30 days was due to his inablity to pay his lawyer is untrue.

13.              The motion for an extension of time and for reconsideration filed on July 11, 2001, and supported by the affidavit of Larry G. Colle was dismissed by Mr. Justice Denault on August 13, 2001.

ISSUES

14.              The applicants raise the following issues on this motion:

1.        Did the applicants come to the knowledge of the new matter cited (the Colle affidavit) subsequent to the decision sought to be set aside?

2.         Could the applicants with reasonable diligence have the new matter discovered earlier than the decision sought to be set aside?

3.         Is the new matter such that if it had been brought to the attention of the Court it would have caused the Court to alter its judgment?

4.         Do the applicants have an arguable case on the merits with respect to their application for leave and for judicial review?

5.         Will the Minister be prejudiced by the grant of an extension of time for the applicants to file their application record?

ANALYSIS

15.              To obtain relief under Rule 399 (2) (a) and (b) of the Federal Court Rules, 1998, SOR/98-106, an applicant must establish that the new matter was discovered subsequent to the the impugned judgment, could not with reasonable diligence have been discovered sooner, and is of such character that if it had been brought forward it would have altered the judgment of the Court. [Saywack v. Canada (Minister of Employment & Immigration), [1986] 3 F.C.189, 27 D.L.R.(4th) 617 (C.A.).]

16.              The applicants argue that they learned for the first time on September 25, 2001, that a person unknown to them, Larry G. Colle, had sworn and filed an affidavit with the Court claiming to know them and blaming them for the failure to file an application record to perfect their application for judicial review. The applicants submit that they could not have discovered earlier the contents and information of the impugned affidavit and that upon learning of the true reason for the failure of the filing of their application record before the Court, they acted with diligence in bringing this motion before the Court.

17.              The applicants contend, essentially, that had the Court known of the true circumstances of the applicants' case and particularly the following facts, it would probably have altered its judgment:

           (i)         That the applicants hired counsel to perfect their application for leave for judicial review;

           (ii)        That the Immigration and Refugee Board found their refugee claim story credible;

           (iii)       That the failure to file an application record was not due to the applicants' fault but to the deliberate misrepresentation and fraud against the applicants by their counsel;

18.              I am satisfied that the applicants came to the knowledge of the impugned affidavit only after the order of Mr. Justice Denault and that the matter could not with reasonable diligence have been discovered earlier. However, I must also be satisfied that the Court, had it been aware of the affidavit and the circumstances of the applicants' case, it would have altered its decision, and granted the extension of time and granted leave.

19.              It is helpful to review Grewal v. Canada [1985] 2 F.C. 263 (C.A.), one of the leading case on the criteria to be applied by the Court in exercising discretion to grant an extension of time. Chief Justice Thurlow at page 272 of the decision stated:

The underlying consideration... 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.

He added at pages 278-279 that:

...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.

20.              Mr. Justice Marceau, in the same case, stated that an extension should be granted where the "ultimate search for justice" prevails "over the necessity of setting the parties' rights to rest." He suggested that the balancing of various factors may well be appropriate and that there may be instances where a strong case may counterbalance a less satisfactory justification for the delay and vice versa.

21.              On the evidence before me, it is clear that the applicants have throughout the proceeding always maintained a continued intention to pursue their application for judicial review. They unfortunately put their trust in Reverend McLeod who failed to perfect the application as charged. Through his affidavit, Mr. Colle deliberately misrepresented the applicant's case to the Court. It is difficult to assess what if any explanation could have been offered to the Court for the delay, apart from inadvertence, or the alleged incompetence of Reverend McLeod. What this Court can assess, however, is whether the applicants have an arguable case. The facts of the applicants' case pertaining to the CRDD's decision of February 1st, 2001, have not changed. The applicants' lawyer argues in his memorandum of law that the Board found the principal applicant to be credible and failed to properly consider their evidence with respect to their membership in a particular social group in determining their claim.

22.              The Refugee Division in its reasons found that the applicants were victims of violence because the principal applicant supported a certain soccer club. A review of the reasons reveals that the Refugee Division acknowledged this aspect of the claim and rejected it. The panel determined that "victims of revenge do not constitute a particular social group, within the meaning of the Convention definition..."

23.              I am of the view that even if the Court would have had the benefit of all the circumstances of the applicants' case discussed above, including the applicants' submissions that are before me on arguable case, the Court would have reached the same decision. Despite the very unfortunate circumstances of the apparent fraud perpetrated on the applicants by Reverend McLeod, I am not convinced that on the evidence adduced before me today, and I can only assume this would have been the applicants' evidence before Mr. Justice Denault on the motion for an extension of time and for leave, that a case is made to justify the granting of an extension of time. I am not satisfied on the evidence that there is an arguable case to be tried in the application for judicial review. I therefore am not satisfied that this Court would have altered its decision even if it had had before it all of the circumstances discussed above.

24.              For the above reasons the motion will be dismissed.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The motion for an order to set aside or vary the original order of Mr. Justice Denault rendered on June 18, 2001, dismissing the applicants' application for leave due to the failure of the applicants to file an application record and for an extension of time to file the applicants' application record is dismissed.

                                                                                                                                "Edmond P. Blanchard"                

                                                                                                                                                               Judge