Date: 20080902
Docket: IMM-4112-07
Citation: 2008
FC 986
Ottawa, Ontario,
September 2, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
TAY HA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
[1]
The
Applicant brought a motion in writing under Rule 369: (a) to set aside an Order
dated January 4, 2008 dismissing the Applicant’s Application for Leave for
Judicial Review due to the Applicant’s failure to file an Applicant’s Record
and (b) for an Order extending time to serve and file the Applicant’s Record.
II. BACKGROUND
[2]
The
Applicant filed an Application for Leave for Judicial Review of a decision of
the Immigration Appeal Division of the Immigration and Refugee Board. That
Application was filed on October 9, 2007, and contained grounds of breach of
procedural fairness, erroneous findings of fact, errors of law and fettering of
discretion. There were no details of these alleged errors.
[3]
On
December 19, 2007, the Application was dismissed for failure to file the
Applicant’s Record. That Order was sent to the Applicant’s counsel on January
4, 2008. The Applicant’s Record had been due on November 8, 2007.
[4]
On June
17, 2008, more than five months after the Order was communicated to the parties,
the Applicant brought this motion.
[5]
The basis
for the motion is that the Applicant’s counsel had given the Applicant’s Record
to a process server who had failed to serve and file the documents.
[6]
The
Applicant’s evidence, as given by an employee of his counsel, was that once
counsel became aware of the Order dismissing the Application, counsel’s office
began an investigation including telephone calls to the process server which
were never answered. The Applicant claims that there are serious issues to be
considered and evidence to support the allegations.
III. ANALYSIS
[7]
There are
serious concerns as to whether this type of situation falls within Rule 397(1)(b).
Justice O’Keefe held in Jalil v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 321, that this provision contemplates an oversight by the Court, not
by a party itself.
[8]
However,
for purposes of this motion, I have assumed, if on no other basis than the
Court’s general equitable jurisdiction, that the Court can provide relief due
to misconduct or neglect of a party’s own agents.
[9]
In this
case, the Applicant does meet the threshold for establishing either the alleged
misconduct/neglect or the test for an extension of time.
[10]
Other than
the affidavit of an employee, there is no corroborating evidence that anything
was sent to the process server. The Applicant has not even produced (or
explained the failure to produce) the Applicant’s Record which was supposed to
have been ready last November and given to the process server.
[11]
There is
no satisfactory explanation for the five plus months of delay in bringing this
motion – a matter which should have been done shortly after the Applicant
became aware that the Record has not been served and filed.
[12]
The
Applicant has not shown that there is some arguable case upon which the Leave
Application was based – a general requirement for extensions of time. The
Applicant’s Record, as earlier noted, was not filed with this motion and the
Court is left with bald allegations of error without details or any substantiation.
[13]
For these
reasons, I have dismissed this motion.
ORDER
THIS COURT ORDERS that the motion to set aside an
Order dated January 4, 2008 dismissing the Applicant’s Application for Leave
for Judicial Review due to the Applicant’s failure to file an Applicant’s
Record and for an Order extending time to serve and file the Applicant’s
Record, is dismissed.
“Michael
L. Phelan”
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