IMM-1656-97
MONTRÉAL, QUEBEC, THIS 17th DAY OF JUNE 1997
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
DANISA SOLEDAD FLORES AVALOS,
DANISA ANDREA MIRANDA FLORES,
VLADMIR MIRANDA FLORES,
Applicants,
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
This motion for an extension of time is dismissed.
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
IMM-1656-97
BETWEEN:
DANISA SOLEDAD FLORES AVALOS,
DANISA ANDREA MIRANDA FLORES,
VLADMIR MIRANDA FLORES,
Applicants,
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
RICHARD MORNEAU,
PROTHONOTARY:
This is a motion by the applicants under subsection 21(2) of the Federal Court Immigration Rules, 1993 (the "Rules") for an extension of the time allowed by subsection 10(1) for filing their record. This motion was made to the Court under Rule 324 of the Federal Court Rules, which provides that a motion may be disposed of without personal appearance of a party or his or her solicitor and upon consideration of written submissions.
The facts
On April 25, 1997, the applicants filed an application for leave and an application for judicial review.
Under Rule 10, the applicants had until May 26, 1997, to perfect their application for leave, which they did not do.
On June 4, 1997, after the time allowed had expired, the applicants served a motion for an extension of time on the respondent, seeking leave to file their record after the time allowed.
In the motion for an extension of time, counsel for the applicants stated:
[translation]
| 3. On May 26, 1997, counsel's secretary served the applicant's record on the respondent, by FAX at 4:05 p.m. personally at his offices, telephone number 283-3856; |
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| 4. An affidavit of service was prepared and the record was complete at 4:20 p.m. Counsel had finished the record the day before; |
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| 5. A client of the office, Victor Koranteng, offered to drive Jocelyn-Ann Proulx, the office manager, to the Federal Court to file it; |
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| 6. Traffic was very heavy and several people gave directions, and so they made two or three wrong turns; |
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| 7. Ms. Proulx arrived at the Court to file the record and proof of service at 5:01 p.m., one minute after closing; |
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| 8. Counsel was out of town in Toronto for a meeting of the Inter-Church Committee on Refugees on May 27, 1997, and was appearing in Federal Court in another matter on May 28, 1997, which explains why this motion is made late; |
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| 9. Counsel for the applicant reiterates that he did everything possible to file the applicant's memorandum within the time allowed. There was a mix-up and that is the reason why the record was not submitted to the Court on time; |
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(Emphasis mine)
The law
It is settled that the Court starts with the principle that the time limits set out in the rules are meant to be complied with.1 Accordingly, as Strayer J. (as he then was) pointed out in Beilin,2 in an application for an extension of time:
| ... [A]n applicant must show that there was some justification for the delay throughout the whole of the period of the delay and that he has an arguable case (see e.g. Grewal v. M.E.I., [1985] 2 F.C. 263, 63 N.R. 106 (F.C.A.)). |
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(Emphasis mine)
With respect, more specifically, to the question of what explanations would establish that it was not possible to comply with the whole of the time limit set out in subsection 10(1) of the Rules, resulting in the need for an extension of time, Reed J. of this Court pointed out in Chin that there must be
| ... some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event.3 |
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According to Reed J., this kind of standard is required in the interests of fairness to parties and counsel who make an effort to comply with the time limits set out in the Rules.4
Where the Court is satisfied in a case that the time limit in rule 10 has been interrupted or significantly affected by an unexpected or unforeseen event, it may exhibit indulgence to an applicant and grant him or her an extension of time. It is accepted that the need for indulgence in these cases is often prompted by the very conduct of the applicant's counsel.
It will be understood that in those circumstances, fairness means that the twofold test in Beilin is more often not mentioned, while not necessarily being ruled out.
Does this case really involve an unexpected event? I am not at all satisfied of this, for the following reasons.
Less than five months before, counsel for the applicants approached the Court in two other cases (file nos. IMM-4376-96 and IMM-4427-96) seeking extensions of the time allowed by Rule 10 and citing difficulties in filing the records on time.
Showing the indulgence referred to earlier, on February 4, 1997, I granted the applicant, in each of those cases, an extension of four days.
More precisely, in file no. IMM-4376-96, the affidavit in support of the motion referred to the following circumstances:
[translation]
| 2. The applicant's record was served on the Department of Justice at 4:40 p.m. on January 13, 1997; |
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| 3. I left by car to file the record in the Court at 4:45 p.m.; |
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| 4. Normally, it takes me five minutes or less to get from my offices to the Court; |
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| 5. However, because of the snow storm that occurred on January 12, traffic was much more congested than usual; |
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| 6. I arrived at the Court at 5:02 p.m.; |
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| 7. I was able to get into the Registry Office, but there was only one registry officer who refused to accept the record, since it was after five o'clock; |
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| 8. In general, our firm does everything possible to try to comply with the times allowed for filing pleadings in the Court. Unfortunately, in this case, I did not allow enough time to get to the Court, in view of road conditions; |
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Since this was not the first time counsel for the applicants had brought a motion for an extension of the time allowed by Rule 10, I was careful to note the following in the order of February 4, 1997:
[translation]
| Whereas counsel for the applicant will be careful to note in future that service under Rule 10 must precede filing under that Rule and that everything must be undertaken in enough time to meet the deadline under Rule 10; |
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It was to be hoped that counsel for the applicants would take note of that order when it was received and have regard to it in future. Obviously this was not the case.
It may be that the issue here is filing the record under Rule 10 and not filing and serving the record. However, it is a matter of the credibility of the orders and Rules of this Court that the time for filing must not be neglected, or even ignored, particularly when the situation arises repeatedly.
Accordingly, it is impossible for me to conclude here that there was some difficulty in the nature of an unexpected event.
This brings us to the elements of the test in Beilin, and on this point it need only be pointed out that on the second element of the test, neither the applicant nor even his counsel gave any details, by affidavit, of whether the case is arguable on the merits.
For these reasons, this motion will be dismissed.
Lastly, counsel for the applicant contends, in paragraph 10 of the motion, that the applicants should not be prejudiced by the error of their counsel. Undeniably, this is an unpleasant situation for the applicants. Nonetheless, on this point, I adopt the following comments of the Court in Chin:
| I know that courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purpose are one. It is too easy a justification for non-compliance with the rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced.5 |
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Lastly, I note that Rule 22 provides for costs to be awarded where there are special reasons. If I had been asked to do so, I might very well have imposed costs personally against counsel for the applicants here.
Richard Morneau
Prothonotary
Montréal, Quebec
June 17, 1997
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court file No. IMM-1656-97
between
DANISA SOLEDAD FLORES AVALOS,
DANISA ANDREA MIRANDA FLORES,
VLADMIR MIRANDA FLORES,
Applicants,
" and "
| MINISTER OF CITIZENSHIP AND |
IMMIGRATION,
Respondent.
REASONS FOR ORDER
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
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| COURT FILE NO: IMM-1656-97 |
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| STYLE OF CAUSE: DANISA SOLEDAD FLORES AVALOS, |
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| DANISA ANDREA MIRANDA FLORES, |
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| MINISTER OF CITIZENSHIP AND |
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| MOTION CONSIDERED IN WRITING AT MONTRÉAL WITHOUT APPEARANCE OF THE PARTIES |
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| REASONS FOR ORDER BY: Richard Morneau, Prothonotary |
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| DATE OF REASONS FOR ORDER: June 17, 1997 |
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| WRITTEN REPRESENTATIONS BY: |
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| Stewart Istvanffy for the applicant |
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| Christine Bernard for the respondent |
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| Stewart Istvanffy for the applicant |
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| George Thomson for the respondent |
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| Deputy Attorney General of Canada |
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| Department of Justice Canada |
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__________________
1 See Chin v. Canada (Minister of Employment and Immigration) (1994), 22 Imm. L.R. (2d) 136, 138 ("Chin").
2 Beilin v. Minister of Employment and Immigration (1995), 88 F.T.R. 132.
3 Supra, note 1.
4 Ibid.
5 Id., p. 139.
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