IMM-2344-96
B E T W E E N:
JANET OBENG (TURKSON)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The applicant has failed to file her Record in time. The courts have indicated that before an application for an extension of time can be granted an applicant must provide evidence tending to excuse all of the delay and also must show the existence of facts which would support an arguable case for leave. In lieu thereof, the applicant has cited [1978] 2 S.C.R. 830">University of Saskatchewan v. C.U.P.E., et al [1978] 2 S.C.R. 830 as authority for the proposition that an extension should be granted if there is nothing in the nature of a reasonable excuse for delay. In that case, it was indicated that the decision was based on Cité de Pont Viau v. Gauthier Mgf., Ltd. now reported in [1978] 2 S.C.R. 516">[1978] 2 S.C.R. 516. In the later case, it was pointed out that the delay, therein excused, would not have prejudiced the other side as the matter would be heard at the same sitting as it would have been if the filing had been on time. That it is not the case here. In addition, in the Cité de Pont Viau case at page 521, Pratte J. noted that it was easy to imagine situations where the judicial exercise of its discretion would lead the Court to refuse special leave to appeal - among the instances he cited were cases where the appeal was clearly futile. In the light of the subsequent cases in this Court commenting on the need to show evidence of the existence of an arguable case, I think it may be presumed, that where there is no evidence of facts which might support an arguable case, that the case is futile as that word was used by Pratte J.
In this case, no evidence of facts which might support an arguable case has been provided. In addition, the only evidence tending to excuse the delay is to the effect that the applicant's present lawyer did not have the materials of a previous lawyer. It is relevant what efforts were made to obtain those materials, the nature, and therefore the importance of the materials. It may also be, if the delay was necessarily caused by changing lawyers, to show how the change of lawyers was justified, that is to show that the change was not an impetuous one dictated by the applicant's whim without regard to or in reckless disregard of the need to observe the Immigration Rules of this Court.
The evidence with respect to the delay furnished fails to excuse the delay. There is no evidence excusing the delay and no evidence of an arguable case. The motion should therefore be dismissed. An affidavit filed in support of the Motion for an extension indicates that the applicant's counsel is of the view that there is an arguable case. In spite of the fact that no evidence of it has been provided, I will grant leave to reapply.
On two previous occasions, I have distinguished the Supreme Court of Canada cases, I think now I should do so in reasons so that in future the failure to show evidence of facts to support an arguable case can result in an absolute dismissal.
ORDER
The motion for an extension of time is dismissed with leave to reapply on better evidence as to the delay and evidence of facts tending to support an arguable case. Such new application must be made on or before the 11th day of October, 1996.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 13, 1996
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2344-96
STYLE OF CAUSE: JANET OBENG (TURKSON)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: SEPTEMBER 13, 1996
SOLICITORS OF RECORD:
Mr. Rocco Galati
Barrister and Solicitor
The Phoenix Building
439 University Avenue
Suite 780
Toronto, Ontario
M5G 1Y8
Solicitor for the Applicant
Urszula Kaczmarczyk
Department of Justice
George Thomson
Deputy Attorney General
Of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No. IMM-2344-96
Between:
JANET OBENG (TURKSON)
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER & ORDER
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