Date: 19990903
Docket: IMM-3418-99
BETWEEN:
JASWINDER SINGH LUBANA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
- [1] By letter dated August 27, 1999, the Applicant seeks the Court"s approval, or in the alternative an extension of time, to file affidavit material in support of his application for judicial review which was filed on July 9, 1999. The Applicant"s affidavit was rejected by the Registry on August 24, 1999 on the basis that it was tendered for filing beyond the period provided for under the Federal Court Rules, 1998 .
| [2] The period for filing the Applicant"s affidavit would normally be 30 days as provided in Rule 306. However, prior to the expiration of the 30 day period and as permitted by Rule 7, the Applicant sought and obtained the Respondent"s consent for an extension of time. Rule 7(2) provides that the parties may consent to an extension of time which does not exceed one half of the period sought to be extended. Upon the consent of the parties being filed, the period in question is at once extended without the parties being required to obtain a Court order. In the present case, the parties agreed to extend the period by a further 15 days. |
| [3] Had the Applicant not requested an extension of time from the Respondent, the 30 day period to file his affidavit material would have expired on Sunday, August 8, 1999. Rule 6 incorporates the provisions of Section 26 to 30 of the Interpretation Act for computing time. Section 26 provides that where the time for doing a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday. By operation of Rule 6 and Section 26, the time limit for filing the Applicant"s affidavit would have been Monday, August 9, 1999 in the absence of an extension of time by consent or by the Court. |
| [4] After receiving the Respondent"s consent for a 15 day extension of time, the Applicant attempted to file his affidavit on August 24, 1999, having calculated the 15 day extension period from Monday, August 9, 1999 and not Sunday, August 8, 1999. However, the Registry rejected the affidavit as being one day late. The Court reckoned the period to run 45 days from the date of filing of the Notice of Application. |
| [5] Counsel for the Applicant submits that the affidavit was not tendered late. He argues that the calculation of the period for filing the Applicant"s affidavit should have been carried out as follows. An initial calculation would be done on the assumption that the 30 day period under Rule 306 had in fact expired on a holiday and, by operation of Section 26 of the Interpretation Act, was extended to the next day, which was not a holiday. A second calculation would then be required, by adding an additional 15 days to this extended period. |
| [6] The Applicant"s interpretation of the interplay between Rule 6, 7 and 306 of the Federal Court Rules, 1998 and Section 26 of the Interpretation Act is based on an incorrect assumption. The purpose of section 26 of the Interpretation Act is to relieve a party from being in default under the Rules when unable to take a step or to do a thing on the last day of fixed period which falls on a holiday and to deem such step taken or such thing done on the next practicable date to be performed timeously. Section 26 of the Interpretation Act does not have the effect of extending a period which has not yet expired. |
| [7] Although the French version of section 26, which is worded somewhat differently from the English version, appears at first blush to imply that a statutory extension is automatically granted, the conditional tense of the verb "expire" cannot be ignored. In essence, the French version states that if a time limit would expire but for the fact that it falls on a holiday (le délai qui expirerait normalement un jour férié ), the period is extended to the next day following which is not a holiday. In fact, the time limit did not expire in the present case on a holiday. |
| [8] Once the parties consented to an extension of time under Rule 7, the time for filing the Applicant"s affidavit did not expire after 30 days. Having been extended by an additional 15 days, it ultimately came to an end after 45 days. Section 26 of the Interpretation Act , which applies only once the time limit has expired, therefore did not come into play. |
| [9] The Applicant had 45 days from the date of filing the Notice of Application to file his affidavit. As a result, the Applicant"s affidavit was tendered outside the time limit. Since the Applicant"s affidavit is untimely, as opposed to irregular, Rule 72 of the Federal Court Rules, 1998 is of no assistance to the Applicant. Nor can the Court exercise its discretion, notwithstanding the special circumstances of this case, to extend the period to file the Applicant"s affidavit in the absence of a motion because of the limitations placed on it by Rules 8 and 47. |
| [10] As a result, the Registry was correct in rejecting the Applicant"s affidavit on the basis that it was untimely. |
ORDER
- 1. The Applicant"s affidavit attested August 16, 1999 shall be rejected as untimely, with leave to the Applicant to bring a motion for extension of time within ten days of the date of this Order.
"Roger R. Lafrenière"
Prothonotary
TORONTO, ONTARIO
September 3, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: JASWINDER SINGH LUBANA |
| THE MINISTER OF CITIZENSHIP |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: FRIDAY, SEPTEMBER 3, 1999
SOLICITORS OF RECORD: Chaudhary Law Office
Barristers & Solicitors
255 Duncan Mill Road
Toronto, Ontario
M3B-3H9
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990903
Docket: IMM-3418-99
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
Respondent
AND ORDER
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