Date: 19990129
Docket: IMM-3418-98
BETWEEN:
DRAGAN FILIPOVIC and
MOJCA MARKARI-FILIPOVIC,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBE, J.
[1] This application is for the judicial review of a decision of a Post Claim Determination Officer (the "Tribunal"), dated June 17, 1998, in which the Tribunal refused the application of the applicants for consideration under the Post Determination Refugee Claimants in Canada class (the "PDRCC" class) pursuant to sections 2(1) and 11.4 of the Immigration Regulations, 1978.
[2] The applicants are citizens of the former Yugoslavia. They are husband and wife. They arrived in Canada in April 1995 and made a refugee claim which was denied on May 6, 1998 by the Convention Refugee Determination Division (the "CRDD"). Along with the CRDD decision, the applicants received application forms for consideration under the PDRCC. On that very date the applicants notified their former counsel of the negative decision. On June 8, 1998, the latter returned by courier the PDRCC applications of the applicants to the Canada Immigration Centre, Post Determination Review.
[3] On June 23, 1998 the applicants received a copy of a letter dated June 17, 1998 from the Tribunal to the effect that their applications were not received within the required time period and were therefore refused. The applicants shortly thereafter retained new counsel who contacted the Tribunal and attempted to have it reconsider its decision, which the Tribunal refused to do. The grounds for refusal are set out by the Tribunal in its letter of June 17, 1998 read as follows:
| "Under Immigration Regulations, failed refugee claimants have to apply to obtain a review of their case under the PDRCC class. This application must be post marked no later than 22 days following the date of the notice of the Refugee Division decision. |
|
| The date of the Notice of Decision by the Refugee Division was May 13, 1998. The application for a PDRCC was due in our offices by June 5, 1998. As the application was not received within the required time period the application under the PDRCC class is refused.". |
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[4] Has the Tribunal erred in law by refusing the PDRCC applications of the applicants?
[5] It appears from the Tribunal Record that the Notice of Decision is dated May 6, 1998. However, it was signed only on May 14, 1998. As mentioned earlier, the letter of June 17, 1998, states that "The date of the Notice of Decision by the Refugee Division was May 13, 1998.". In any event, it is common ground that the applicants received the Tribunal' decision at their place of residence by regular mail on May 22, 1998, along with a PDRCC application form. June 6, 1998 was the 15th day after which the applicants had received the Notice of Decision and it was a Saturday. The applicants' counsel sent their applications by courier the next Monday, June 8, 1998.
[6] Subsection 4(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), provides that in the absence of proof to the contrary, a person is deemed to have been notified of a decision under the Act seven days after the day on which the written reasons were sent to the person. In the present instance there is proof that the applicants were notified of the decision on May 22, 1998 or more than seven days.
[7] For the purposes of calculating the legal time period in which the applicants were to have submitted their PDRCC applications, the relevant provision is paragraph 11.4(2)(b) of the Immigration Regulations, 1978, which provide that the application is to be submitted "not later than 15 days after the person is notified of the determination by the Refugee Division.".
[8] The applicants did not submit their applications on the 15th day which was a Saturday, but on the following Monday. In his memorandum of argument, the respondent (the "Minister") argued that the date of receipt of the Notice of Decision by the applicants was not before the Tribunal at the time it made its decision and that it would be improper to introduce this new evidence. However, at the hearing of the judicial review, counsel for the Minister admitted that Saturday, May 22, 1998 was the date of receipt. Counsel subsequently submitted new oral argument to the effect that Saturday was not a "holiday".
[9] The Federal Interpretation Act, R.S.C. c. I-23, s. 26, stipulates that "Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.". Under subsection 35(1), the definition section, "holiday" is defined as any of the following days, namely, "Sunday ... and any of the following additional days, namely, ... any day that is a non-juridical day by virtue of an Act of the legislature of the province, ...".
[10] However, as pointed out by counsel for the applicants, and rightly so, subsection 25(3) of the British Columbia Interpretation Act, R.S.B.C. 1979, c. 206 [as amended], provides as follows:
| 25.(3) Where the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open. |
|
[11] Thus while Saturday is not specifically included along with Sunday as a holiday in the two Interpretation Acts, I am sure the Court can take judicial notice of the fact that government offices, provincial or federal, are not open on Saturdays. That may be what the Federal Court of Appeal had in mind in Canada (Canadian Human Rights Commission) v. Canada (Canadian Armed Forces) (re Lagacé), [1996] F.C.J. No. 528, when it said (at paragraph 11):
| "It is worth noting that Saturday is expressly considered a non-juridical day for purposes of computing time limits in civil cases in most Canadian provinces.". |
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The Court goes on to list the following provinces: "Saturday is a juridical day in Ontario, in Alberta, in Manitoba, in New Brunswick, in Nova Scotia, in Newfoundland and in Prince Edward Island.". British Columbia is not listed by the Court as a Canadian province which has expressly considered Saturday as a juridical day.
[12] The application for membership in the PDRCC class is an important part of the legislative scheme of the Act in that it provides a risk assessment of success for refugee claimants who, while having failed to definitively establish the criteria of a convention refugee, are nonetheless at risk upon return to their country of origin. In my view the Tribunal has created an unlawful exercise of a statutory authority which is inconsistent with the duty of fairness owed to the applicants. It fettered its discretion through the imposition of an overly strict interpretation of its own guidelines.
[13] Consequently the Tribunal's refusal is set aside and the matter is referred back for redetermination by a newly constituted panel.
[14] The application for judicial review is granted.
[15] In my view there is no question of general importance to be certified.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
29 January 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: January 29, 1999
COURT NO.: IMM-3418-98
STYLE OF CAUSE: Dragan Filipovic et al.
v.
MCI
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF DUBÉ, J.
dated January 29, 1999
APPEARANCES:
Mr. Shane Molyneauz for Applicant
Ms. Emilia Pech for Respondent
SOLICITORS OF RECORD:
McPherson, Elgin & Cannon
Vancouver, BC for Applicant
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada
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