Colavecchio v. Canada (Attorney General), 2002 FCT 835

Date: 20020731

Docket: 02-T-32

Montréal, Quebec, July 31, 2002

Before: Lemieux J.

BETWEEN:

ROBERTO COLAVECCHIO

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

ORDER

For reasons filed today, this application is dismissed.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

Date: 20020731

Docket: 02-T-32

Neutral citation: 2002 FCT 835

BETWEEN:

ROBERTO COLAVECCHIO

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

LEMIEUX J.

[1]                 I consider that this application to extend the deadline for filing an application for judicial review should be dismissed.

[2]                 The applicant is coordinating member of the Refugee Division. He asked the Court to quash the decision by the chairperson of the Immigration and Refugee Board on November 1, 2001, to place him on paid leave pending the conclusion of an ongoing criminal inquiry.

[3]                 Section 18.1 of the Federal Court Act requires that an application for judicial review be filed within 30 days after the time the decision was first communicated by the federal board, commission or other tribunal. The applicant delayed for eight months.

[4]                 He justified the delay on the following grounds:

[TRANSLATION]

36.           the applicant has not so far brought any proceeding out of deference to the organization to which he belongs and his superiors, as he did not want to do anything to harm or impair the reputation of the organization to which he belongs;

37.           the applicant now wishes to have the decision of November 1, 2001 quashed since he believed in good faith that the inquiry would be concluded within a reasonable time and he could return to his work once the matter has been resolved so far as he is concerned;

38.           the inquiry has now been going on for over six months and nothing has been done involving the applicant since, despite his offering to undergo examination, the R.C.M.P. has refused.

[5]                 In Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846, the Federal Court of Appeal concluded that there were four factors which an applicant must establish in order to obtain an extension of time (see also Rosen v. Canada, [2000] F.C.J. No. 415).

[6]                 Those factors are:

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.

[7]                 In the case at bar, since the applicant clearly does not meet the first and third requirements, I do not have to analyze the other factors.

[8]                 It is clear the applicant did not have a continuing intention to pursue his application during the required period. Instead of filing an application for judicial review, he relied on the conclusion of the inquiry so he could return to work.

[9]                 The applicant's explanation justifying the delay does not seem reasonable to me. The applicant felt that the chairperson of the Board did not have the power to put him on paid leave pending the results of the inquiry, since that power belongs to the Governor General in Council, who appointed him.

[10]            In my opinion, if the applicant really felt that the chairperson of the Board had acted unlawfully, he would have reacted quickly. The deference he might have for the Board does not justify a seven-month delay.

[11]            Having ruled on the merits, I do not have to consider the preliminary objection raised by the defendant, namely that the applicant should have obtained the Court's leave under s. 72 of the recently adopted Immigration and Refugee Protection Act.

[12]            This application for an extension is dismissed.

Montréal, Quebec

July 31, 2002

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               02-T-32

STYLE OF CAUSE:                                                     ROBERTO COLAVECCHIO

and

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                  July 29, 2002

REASONS FOR ORDER BY:                                    LEMIEUX J.

DATED:                                                                           July 31, 2002

APPEARANCES:

Franco Iezzoni                                                                  FOR THE APPLICANT

François Joyal                                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Pateras & Iezzoni                                                              FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec