Magno Soria v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1098

Date: 20021021

Docket: IMM-3359-02

Neutral citation: 2002 FCT 1098

BETWEEN:

                                                           SALOME MAGNO SORIA

                                                                                                                                                     Applicant

                                                                                 and

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

HARGRAVE P.

• [1]                  The Respondent opposes the Applicant's motion for an extension of time within which to serve and file her record. Basic is the submission that the Applicant has not dealt with all of the four elements necessary for a time extension as set out by the Court of Appeal in Canada (Attorney General) v. Hennely (1999), 244 N.R. 399 at 400:

(i)                   a continuing intention to pursue his or her application;

(ii)                 that the application has some merit;

(iii)              that no prejudice to the respondent arises from the delay; and

(iv)              that a reasonable explanation for the delay exists.

These elements should be balanced, with stronger elements carrying weaker elements, the overall objective being that doing justice between the parties: see Grewal v. Canada (M.E.I.), [1985] 2 F.C. 263 at 282 (F.C.A.).

[1]                  While there may have been some lack of motivation and initiative on the part of the Applicant, I am prepared to imply, from the material, an on-going intent, being the first element of the four-part test.

[2]                  There is no apparent prejudice to the Respondent.

[3]                  While the material explaining the delay is somewhat thin, in that it does not deal with delay in any detail, I am prepared to accept, as a reason for the delay, an emergency concerning the health of the Applicant's father. Such a reason can be unexpected and thus come within Chin v. Canada (M.E.I.) (1993), 69 F.T.R. 77 (F.C.T.D.) However, as Justice Reed pointed out in Chin, I must take care not to unfair by too easily extending time when other counsel may be doing their work only by pulling out all of the stops in order to meet deadlines and to workmanlike jobs.

[4]                  In the present instance there is nothing in the Applicant's material to demonstrate that her case has merit, or that it is an arguable case: see Hennelly (supra) at 401, Grewal (supra) at 277 and Aguiar v. Canada (M.C.I.) (1995), 106 F.T.R. 304 (F.C.T.D.) at 306, a decision of Mr Justice Muldoon. In Aguiar Mr Justice Muldoon observed that there was, on the material he had, "... just no means of determining what the applicant's case is, or how good it might be on the merits." (page 306). There the Court denied the time extension.

[5]                  Counsel for the Respondent emphasizes, in the present instance, that there is no means to measure the merit of the Applicant's case. Indeed, there is a complete lack of evidence in the Applicant's Motion Record to even suggest that the visa officer improperly denied the Applicant's application for permanent residence in Canada.

[6]                  Counsel for the Applicant has filed a document called "Reply to Respondent's Motion", which I take it is a response to the argument presented by the Respondent. However, the Applicant's reply does not deal with the merits of the case. The written argument states that "there is an arguable case". Merely to make such a bald statement does not advance the Applicant's position. Here I would refer to Lieu v. Canada (M.E.I.), an unreported 2 June 1994 decision of Madam Justice Simpson in IMM-589-94 in which the Applicant for the time extension deposed that there had been an error in law made by the tribunal and that there was a substantial and arguable case on the merits. Madam Justice Simpson denied the application for a time extension saying, in part:

Merely averring that an arguable case exist is insufficient by way of an application for a time extension. Given counsel's oversight, a failure to elaborate on the bald statement of the merits of the case, I must consider whether the oversight can be repaired. Ordinarily I would not allow a second try at a time extension, unless there are special circumstances.

[7]                  In this instance it is proper to consider whether I ought to allow counsel and Applicant a second run at the extension by way of either supplemental or new material. Here I must balance fairness to counsel for the Respondent, who has put together a reasonable and complete argument in opposition to the motion.

[8]                  In doing justice between the parties, the overall objective pointed to by the Court of Appeal in Grewal, I note that, on very flimsy grounds, counsel for the Respondent applied for an extension of time within which to respond to this present motion. Indeed, the Respondent, on that motion, dealt not at all with the elements set out in Hennelly (supra) and particularly the merits of the situation, but merely deposed that material had been forwarded to a paralegal, to work on the file, but the paralegal was away on holiday. While the Order granting the extension does not say so, I rather expect it was granted only because counsel for the Applicant filed a reply setting out that he did not oppose the Respondent's application for a time extension.

[9]                  In order to do justice between the parties I should, as I say, balance the equities. The Respondent received a free ride on the last motion, in not having to deal, in any real way or at all, with the elements from Hennelly which the Respondent now says the Applicant must satisfy. It is appropriate in the circumstances that the Applicant have an opportunity to file an amended motion record, including fresh argument and affidavit material, in order to apply the time extension for serving and filing the Applicant's Record.

(Sgd.) "John A. Hargrave"

                                                                                               Prothonotary

Vancouver, British Columbia

21 October 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            IMM-3359-02

STYLE OF CAUSE:                        Salome Magno Soria v. The Minister of Citizenship and Immigration

REASONS FOR ORDER OF: Hargrave P.

DATED:                                                21 October 2002

WRITTEN REPRESENTATIONS BY:                              

H. Alex G. Casuga                                                                      FOR APPLICANT

W. Brad Hardstaff                                                                       FOR RESPONDENT

SOLICITORS ON THE RECORD:

Casuga Law Office                                                                     FOR APPLICANT

Barrister & Solicitor

Calgary, Alberta

Morris A. Rosenberg                                                                 FOR RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Edmonton, Alberta