Date: 20070706
Docket: IMM-1787-07
Citation: 2007
FC 715
Toronto, Ontario, July 6, 2007
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
AKINOLA
BABAJIDE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
UPON MOTION in writing on
behalf of the Applicant dated June 11, 2007, pursuant to Rule 369 of the Federal
Courts Rules, for an Order granting the Applicant a short extension of time
for serving and filing the Applicant’s Application Record;
[2]
AND
UPON reading
the Applicant’s Motion Record and the Respondent’s Motion Record and the
Application for Leave and for Judicial Review;
[3]
The
Applicant seeks an extension of time to file the Application Record because a
Legal Assistant in the office of the Applicant’s counsel misplaced the
Application Record and thus it was inadvertently not filed on time. The
Applicant received the decision from which the Application for Leave was taken
on April 24, 2007. That Application was filed
on May 2, 2007, well within the time for commencing the Application. The
Application Record should therefore have been filed on or before June 1, 2007. The evidence filed on
behalf of the Applicant indicates the Application Record was ready to be served
and filed by June 1, 2007 and but for having misplaced the Application Record
it would have been served and filed on time. The mistake became known to the
lawyer on June
11, 2007. The very
brief affidavit in support of the motion is sworn by the Legal Assistant who
misplaced the Application Record. There is neither an explanation in that
affidavit why it was not known to the lawyer earlier that it was not filed nor
any information as to what steps were taken by the lawyer to ensure it was
served and filed after he gave it to the Legal Assistant. Further, there is no
evidence regarding the merits of the Application for Leave.
[4]
The
Respondent opposes the extension of time and argues that the four prong test
for granting an extension has not been met. In particular, counsel for the
Respondent emphasizes in Written Submissions that inadvertence of a secretary
or counsel does not constitute a sufficient ground to grant the extension.
There are several cases cited in support of this proposition, including Canada (A. G.) v. Hennelly (1995), 91 F.T.R. 317
and Chin v. Canada (M.E.I.), [1993] F.C.J. No. 1033. The four factors set out in Hennelly govern the
discretionary decision of whether or not to grant an extension of time.
Thus, to be granted an extension of time, the Applicant must demonstrate
each of the following:
1. a
continuing intention to pursue the application;
2. that
the application has some merit;
3. that
there will be no prejudice to the Respondent from the delay; and
4. that
there is a reasonable explanation for the delay exists.
[5]
A further factor sometimes considered is
whether an extension should be granted in order to do justice between the
parties. (see, The Minister of Citizenship and Immigration. v. Simakov,
2001 FCT 469 at paras. 3-5).
[6]
Each case must be determined on its own facts.
In this case the evidence indicates that factors one and three are met: the Applicant
had a continuing intention to pursue the application and there is no obvious
prejudice to the Respondent. The difficulty with the Applicant’s case is the
failure to satisfy parts two and four of the conjunctive Hennelly test.
The Applicant’s Written Submissions concedes that there is no reasonable
explanation for the delay in this case. The case law cited by the Respondent
supports that proposition.
[7]
The Applicant’s request for an extension
therefore falters by failing to meet parts two and four of the Hennelly test.
There is a paucity of information about the merits of the appeal. In looking
at the Application for Leave for assistance in understanding the merits one
comes up empty-handed. The grounds in the Application for Leave are nothing
but empty boilerplate bereft of any substantive ground arising specifically
from the decision of the Tribunal. The grounds in the Application for Leave
are the following:
a) That the Panel failed to observe the
principles of natural justice, procedural fairness or otherwise acted beyond or
refused to exercise its jurisdiction;
b)
The Panel erred in law in making its decision
whether or not the error appears on the face of the record; and
c)
The Panel’s decision was based on erroneous
findings of fact made in a perverse and capricious manner without regard to the
materials before the Panel.”
[8]
These
“grounds” give no clue as to what merit there is to the Application for Leave
and Judicial Review. Thus, on this ground alone the motion for the extension could
fail (see, for example, Lieu v. Canada (M.E.I.), [1994] F.C.J.
No. 857; and Rafique v. Canada (M.E.I.), [1992]
F.C.J. No. 864). However, in this case, the fact that there is no
reasonable explanation for the delay in accordance with the jurisprudence of
this Court combined with the failure to provide minimally substantive information
regarding the merits of the Application for Leave does not meet the minimum
threshold to grant an extension. The motion is therefore denied.
ORDER
THIS COURT ORDERS that
1.
This
motion is dismissed.
“Kevin
R. Aalto”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1787-07
STYLE OF CAUSE: AKINOLA BABAJIDE v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: AALTO P.
DATED: July 6, 2007
WRITTEN REPRESENTATIONS BY:
Sina Ogunleye FOR
THE APPLICANT
Ricky Tang FOR
THE RESPONDENT
SOLICITORS
OF RECORD
Sina Ogunleye
Toronto, Ontario FOR
THE APPLICANT
John H. Sims,
Q.C.
Deputy Attorney General of Canada FOR THE
RESPONDENT
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