Aubid v. Canada (Citizenship and Immigration), 2007 FC 228

 

Date: 20070227

Docket: IMM-6206-06

Citation: 2007 FC 228

Toronto, Ontario, February 27, 2007

PRESENT:     The Honourable Mr. Justice Hughes

 

BETWEEN:

OMAR OSNI AUBID

Applicant

 

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR ORDER AND ORDER

 

[1]               This is a motion brought by the Applicant to set aside the Order of this Court dated January 30, 2007 wherein this Application for leave was dismissed for failure of the Applicant to file an Application Record.

 

[2]               The moving party relies upon Rules 8, 397 and 399 of this Court which provide that an Order may be set aside, among other things, if a matter was overlooked or if a party failed to appear by accident or mistake or by reason of insufficient notice.  The factual bases asserted by the Applicant (moving party) which underlie the request for relief are stated as:

1.                  The Applicant or his solicitor did not receive service of the Respondent’ Notice of Appearance.

2.                  The Applicant intends to pursue the matter, however he is indigent, a Legal Aid lawyer refused to take over the file from the lawyer who instituted the Application and by the time this was discovered the Order in question had been issued.

 

[3]               If the Order is set aside the moving party seeks an extension of time to serve and file the Applicant’s Record.

 

[4]               As to the setting aside of the Order, the moving party says that the Court overlooked a material fact namely the alleged non-service of the Respondent’s Notice of Appearance.  The Respondent’s evidence is that the Notice was served by fax and supporting documents are provided.  The Applicant has offered no rebutting evidence except to speculate in argument that there may have been a machine or system failure.  This is not a satisfactory rebuttal.  In any event it is irrelevant whether the Notice was received.  This Applicant has an obligation to file its Application Record in a timely fashion whether or not the Notice was received. 

 

 

[5]               As to the refusal of a Legal Aid lawyer to take the file, the Applicant and his original lawyer have an obligation to ensure that his matter is moved along promptly, they cannot simply wait.  The Court has committed no oversight, thus Rule 397 does not apply.  There is no evidence as to any matter subsequently arising or discovered thus Rule 399 does not apply.

 

[6]               Given that there is no basis in the Rules for setting aside the Order, should it be set aside nonetheless and the Applicant given time to file his Application Record.  Evidence is provided only by way of an affidavit of a “legal assistant” to the current lawyer for the Applicant.  The assistant states that while the current lawyer was retained, it was “to provide an opinion only” and that it was expected that another lawyer would be appointed by Legal Aid.  The affidavit further states that the current lawyer learned that the lawyer expected to be appointed refused to accept the case and that while the current lawyer was preparing a motion to extend time, the Order in question came to his attention.

 

[7]               This evidence gives rise to several difficulties.  First, the current lawyer has been on record since the filing of the Application.  He is named as solicitor of record and signed the Notice of Application.  He has a professional duty to ensure that the file is properly handled and that the Application Record is filed in a timely way.  The fact that another lawyer might take over the file is irrelevant to that duty.

 

[8]               The second problem that arises is that the supporting affidavit contains hearsay and gives rise to contentious issues.  Matters of hearsay under Rule 81 may be admitted by way of affidavit, but an adverse inference can be drawn from failure to provide direct evidence.  Where is the evidence from the proposed new lawyer, or Legal Aid or the Applicant?  Rule 82 says that a solicitor’s affidavit should not be used when that solicitor presents argument.  The Court of Appeal in Cross Canada Auto Body v. Hyundai Auto [2006] F.C.J. No. 539 has stated that staff in such solicitor’s office should not provide evidence in respect of contentious matters.  The evidence presented on the motion here is unsatisfactory.

 

[9]               I reject the motion for an extension of time on the basis that the original and still current solicitor of record had a duty to ensure that a timely Application Record should be filed and has failed to provide a satisfactory basis for excusing that failure.

 

 

 

 

 

 

 

 

 

 

 

 

ORDER

 

            For the above Reasons:

 

1.      The motion is dismissed;

2.      No Order to costs.

 

“Roger T. Hughes”

 

 

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                      IMM-6206-06

 

STYLE OF CAUSE:                                      OMAR OSNI AUBID                                                                                                                                                 Applicant

 

                                                                        and

 

                                                                       

                                                                        THE MINISTER OF CITIZENSHIP AND

                                                                        IMMIGRATION

                                                                        Respondent

                                                                                                                                         

 

CONSIDERED AT TORONTO, ONTARIO

 

REASONS FOR ORDER

AND ORDER:                                               HUGHES J.

 

DATED:                                                         February 27, 2007

 

 

WRITTEN REPRESENTATIONS BY:

 

Obi Agbarakwe                                                FOR THE APPLICANT

 

Camille N. Audain                                            FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

AGB Law Office

Edmonton, Alberta                                           FOR THE APPLICANT

 

John H. Sims, Q.C.

Deputy Attorney General of Canada

Edmonton, Alberta                                           FOR THE RESPONDENT