Shokri v. Canada (Minister of Citizenship and Immigration), 2002 FCT 785

                                                                                                                                          Date:    20020712

                                                                                                                        Docket No.: IMM-1768-01

                                                                                                               Neutral Citation: 2002 FCT 785

Ottawa, Ontario, this 12^th day of July, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                    EVETTE EMIL ZAKY SHOKRI,

                                MARI GAMAL IBRAHIM, GOUN GAMAL IBRAHIM,

                                                 and BENIAMIN GAMAL IBRAHIM

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

• 1.                    The applicants brought this motion under Rule 369 of the Federal Court Rules, 1998, SOR/98-106 seeking the following relief:

(a)        an order for reconsideration of the order of Denault J. Dated June 14, 2001, in which the applicants' application for judicial review was dismissed due to the failure of the applicants to file an application record, and to set aside the said order of Denault J. and allow the applicants to serve and file their application record; and

            (b)        an order granting an extension of time, beyond the ten (10) days provided for in Rule 397 to bring a motion for reconsideration.

• 2.                    A motion for reconsideration is usually dealt with by the judge who made the order, that is the subject of the request for reconsideration. Mr. Justice Denault, who made the order that is the subject of the within motion, has left the Court after a long and distinguished service. As duty judge, I now deal with the application.
• 3.                    The applicants are from Egypt and their claim for refugee status was refused by the Immigration and Refugee Board, Convention Refugee Determination Division (the "CRDD") on January 17, 2001.

• 4.                    On April 9, 2001, the applicants filed an application for leave and for judicial review. Their application record was to be filed within 30 days of April 9, 2001. An application record was never filed and on June 14, 2001, Denault J. dismissed the application.
• 5.                    The applicants' counsel contends that the application record was not filed within the 30 day required time period because she was awaiting the decision of this court as to whether an order granting an extension of time to serve and file the application record would be granted.

• 6.                    On October 4, 2001, the applicants filed the written motion for reconsideration pursuant to Rule 397 of the Federal Court Rules, 1998, and a motion for an extension of time to file their application record and an extension of time in which to file this motion.

Issues

            1.         Should the Court grant an extension of time to file a motion to reconsider?

            2.         If the extension is granted, should the motion for reconsideration be granted?

Analysis

• 7.                    The applicants were advised of the negative CRDD decision on January 29, 2001, and only filed their application for leave and for judicial review on April 6, 2001, seven weeks late. The applicants attempted to justify the delay in their motion for an extension of time by stating they were awaiting for a legal aid certificate.
• 8.                    Further, the applicants did not bring this motion to have the order of Denault J. reconsidered within 10 days of the order as required by Rule 397 of the Federal Court Rules, 1998. It was not until September 7, 2001, almost three months after the order was issued did the applicants approach this Court for relief.

• 9.                    To obtain leave for an extension of time, the applicants must have a reasonable explanation for the delay and must establish an arguable case [See Vinogrado v. Canada (Minister of Employment and Immigration) (1994) 77 F.T.R. 296 (T.D.)].

• 10.              I am not satisfied, on the materials before me, that the applicants have offered a reasonable explanation to justify the extensive delays in the filing of their leave application and the within motion for reconsideration. Difficulties in obtaining counsel or a legal aid certificate is not, in my view, sufficient reason for failing to bring an application on time nor is it an acceptable explanation for delay that warrants an extension of time.
• 11.              In Kiani v. Canada (Minister of Citizenship and Immigration) 124 F.T.R. 299 at para. 5. Mr. Justice Muldoon confirmed that waiting for confirmation of legal aid is not an adequate excuse for allowing a prescribed time limit to pass. He asserted that the principle was virtually inscribed in stone and cited Mr. Justice Mahoney, for the Federal Court of Appeal in Espinoza v. M.E.I.. [1992] F.C.A.D. 1486-15, 92-A-1361.

I am not prepared to grant an indefinite extension. The policy of the Immigration Act and Federal Court Immigration Rules as to the expeditious processing of leave applications is transparently clear. The dilatory initiation of Legal Aid applications, delays in providing opinion letters, which counsel know very well will be required, and the ever slower processing of such applications by some Legal Aid Committees cannot be permitted to defeat the policy of the Act and Rules. As I had occasion to observe in another application for an extension, "the agenda of the London & Middlesex County Legal Aid Committee cannot dictate this Court's administration of the law and application of its Rules."

• 12.              In dismissing the application for leave, the Court rendered a final decision. It is only in the narrowest of circumstances that the Federal Court Rules, 1998, allow a final decision be subject to further review.

• 13.              Rule 397 contemplates a reconsideration because of an oversight, an accidental omission, or a clerical mistake or omission on the part of the Court. Such mistakes can be corrected at any time by the Court. Further, Rule 397(1)(b) only contemplates the Court's oversight and not the parties' oversight [See Boating v. Canada (Minister of Employment and Immigration) (1994), 11 Imm. L.R. (2d) 9 (F.C.A.)].
• 14.                  I am satisfied the materials filed by the applications do not establish that the Court has either made a mistake, overlooked or accidentally failed to consider any relevant material or evidence when the order of June 14, 2001, was made by Denault J.

• 15.              Even if I were satisfied that an extension of time to file a motion to reconsider were warranted, which I am not, the applicants' failure to bring themselves within the limited scope for reconsideration of an order, as provided for in Rule 397 of the Federal Court Rules, 1998, is sufficient to dispose of this motion.
• 16.              Accordingly, I am not prepared to grant the applicants' reconsideration request.

• 17.              The applicants' motion will be dismissed.

                                                                            ORDER

THIS COURT ORDER that:

1.                    The applicants' motion is dismissed.

                                                                                                                                 "Edmond P. Blanchard"             

                                                                                                                                                               Judge                      

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-1768-01

STYLE OF CAUSE:                           Evette Emil Zaky Shokri et al. v. MCI

PLACE OF HEARING:                     Rule 369 motion

REASONS FOR ORDER AND ORDER:                          BLANCHARD J.

DATED:                                                July 12, 2002

APPEARANCES:

Linda V. Hawkins                                                                           FOR PLAINTIFF / APPLICANT

Angela Marinos                                                                              FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Carnevale Law Office                                                                     FOR PLAINTIFF/APPLICANT

2488 McDougall Street

Windsor, Ontario N8X 3N7

Morris Rosenberg                                                                           FOR DEFENDANT/RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Exchange Tower

1 First Canadian Place

Box 36, Suite 3400, 130 King Street West

Toronto, Ontario

M5X 1K6