Date: 20020422
Docket: T-87-01
Neutral Citation: 2002 FCT 457
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
CHI MING ANDREW LIE
Respondent
REASONS FOR ORDER
HARGRAVE P.
[1] The Crown seeks an Order for an extension of time within which to serve and file a requisition for hearing. The application, based on the inadvertent overlooking of the filing date, together with a stale assertion that the Respondent did not indicate that he suffered any prejudice resulting from delay when, at an earlier stage, the Crown's delay subjected it to a status review, fails.
[2] To elaborate, the requirements for obtaining an extension of time are well known. In Grewal v. Canada [1985] 2 F.C. 263 Chief Justice Thurlow observed, at page 272, that the underlying consideration was that justice be done between the parties. Mr. Justice of Appeal Marceau made the same observation at page 280, but then went on, at page 282, to call for an evaluation and balancing of the various relevant factors, including the reasons for the delay and whether there is an arguable case. The test for a time extension was further considered by the Federal Court of Appeal in Canada v. Hennelly (1999) 244 NR 399 at 399-400:
[3] The proper test is whether the applicant has demonstrated
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.
In setting out these four elements I do not take it that the Court of Appeal, in the very brief reasons, in any way intended to undermine their earlier view, in Grewal, that the overall objective must be that of doing justice between the parties.
[3] In Hennelly the time extension was sought on the basis of inadvertence, the Crown having overlooked the timely filing of the Crown's record. The respondent, who acted for himself, prevailed, with Mr. Justice Muldoon initially finding that inadvertence was not a sufficient ground, in law and in the jurisprudence, to justify a delay: Canada v. Hennelly (1995) 91 F.T.R. 317 at 318-319. The Court of Appeal upheld Mr. Justice Muldoon.
[4] The Crown, in the present instance, rather than produce an on point written argument, dealing with the tests as set out in either Grewal or Hennelly, merely reworked some, but not all, of the written representations used in response to the earlier Notice of Status Review. Indeed the written submissions on this motion still purport to be a submission in response to a Notice of Status Review, complete with an irrelevant reference to the leading case on Status Review, Baroud v. Canada (1999) 160 F.T.R. 91. This written submission does little to advance the Applicant's case.
[5] The affidavit in support of the present motion does not address the issue of whether the application has merit. There is a bald assertion that counsel had always intended to file a requisition for hearing, but that falls short of the requirement which must be addressed, being whether there is a continuing intention to pursue the application itself. The affidavit does touch upon the matter of inadvertence. The excuse for failing to file the requisition for hearing in a timely manner is that, when a Notice of Status Review was issued by A.C.J. Lutfy on 22 October 2001, the Applicant, as a reminder for filing the requisition for hearing, was waiting for the Respondent's record due 10 May 2001, which record was never received. A requisition for hearing is due ten days after the respondent's record is received, or is due, whichever comes first: see Rule 314. On an ordinary reading of section 314(1), an applicant should not rely upon receiving a respondent's record in order to trigger a requisition for hearing. On the basis of the decisions in Hennelly (supra) I do not take inadvertence or the present explanation of the inadvertence to assist the Applicant's case.
[6] The Respondent has filed a motion record in response, which contains only written representations. From those representations, which are not to be regarded as evidence, I can understand the frustration of the Respondent, who was cooperative in assisting the Applicant in responding to the Notice of Status Review, but who now finds that things have gone on a little too long.
[7] Returning to Grewal, the concept underlying a time extension is to do justice between the parties. Here I do not see that there is any injustice to the Minister of Citizenship and Immigration if denied an extension of time within which to file a requisition for hearing: I say this because no one deposes, on behalf of the Minister, that the Minister's application has any merit. Nor is there either any real evidence as to a continuing intention to pursue the application or a reasonable or valid explanation for the delay. Doing justice between the parties does not mean that there must necessarily be prejudice to be avoided. Rather, doing justice is a moral value generally considered to be the end which law ought to strive to attain. It is appropriate and in accord with doing justice that Mr. Lie, who is a student, be allowed to continue studies uninterrupted and unburdened by this application for judicial review which, from the record, from past material and from the present material, appears to have been run in a perfunctory and lackadaisical manner.
[8] The Crown's application for an extension of time within which to file the requisition for hearing is denied.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
22 April 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-87-01
STYLE OF CAUSE: MCI v. Chi Ming Andrew Lie
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER: Hargrave P.
DATED: April 22, 2002
WRITTEN REPRESENTATION BY:
Ms. Pauline Anthoine FOR APPELLANT
Department of Justice
Mr. Chi Ming Andrew Lie FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg FOR APPELLANT
Deputy Attorney General of Canada
Mr. Chi Ming Andrew Lie FOR RESPONDENT
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