Date: 20000310
Docket: A-522-99
Ottawa, Ontario, Friday, March 10, 2000
DÉCARY J.A.
NOËL J.A.
Between:
LEKRIM BENSALAH,
Appellant,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The motion to dismiss the appeal for undue delay in prosecuting the proceeding is granted.
Certified true translation
Bernard Olivier, LL. B.
Date: 20000310
Docket: A-522-99
DÉCARY J.A.
NOËL J.A.
Between:
LEKRIM BENSALAH,
Appellant,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
Written motion decided without appearance by parties
Order made at Ottawa, Ontario, Friday, March 10, 2000
REASONS FOR ORDER BY: NOËL J.A.
CONCURRED IN BY: DESJARDINS J.A.
DÉCARY J.A.
Date: 20000310
Docket: A-522-99
DÉCARY J.A.
NOËL J.A.
Between:
LEKRIM BENSALAH,
Appellant,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
NOËL J.A.
[1] The appellant is concurrently benefiting from a statutory stay of execution of a removal order made against him pending disposition of the appeal filed by him on August 26, 1999. Under the Federal Court Rules the appellant should have filed his memorandum on or before November 25, 1999, which was not done. As the appellant had still not filed his memorandum on February 2, 2000 the respondent filed a motion to dismiss the appeal pursuant to Rule 167, alleging as the reason the undue delay in prosecuting the proceeding.
[2] In reply, counsel for the appellant offered the following explanation:
| This memorandum was not filed earlier since a memorandum and a supplementary memorandum were filed at trial, are contained in the appeal book and a priori no additional submissions were going to be made; |
| As the firm"s experience is primarily with motions for leave, we did not automatically file a supplementary memorandum and an application for listing since these [proceedings] do not exist in such circumstances; |
| In fact, this case and the related case of GILL (A-523-99) are the first by the undersigned to be appealed since the new Rules of April 1998. . . 1 |
[3] At the same time, he acknowledged that he [TRANSLATION] "possibly" had a duty to file a memorandum and submit by motion on February 14, 2000 a [TRANSLATION] "draft memorandum for the Court of Appeal".2 He asked the Court to extend the deadline in order to permit filing.
[4] The explanations offered by counsel for the appellant on his client"s behalf are simply not credible. A lawyer working in immigration matters, as counsel for the appellant does, cannot seriously argue that he did not know that the memorandum had to be filed in support of his appeal proceeding. Rule 346 does not enact anything new: it simply provides, as the former Rule 1307 did, that the appellant must file his memorandum after filing the appeal book.
[5] The fact that in filing a notice of appeal the appellant may benefit from an automatic stay of the removal order issued against him imposes a corresponding duty to prosecute his action promptly, and at the very least to comply with the deadlines specified by the Rules. By ignoring the deadlines due to such incompetence by his counsel, the appellant squarely counters the effect of the Act and the duty on the Minister to carry out removal orders as promptly as possible.
[6] As there was no credible explanation for the failure to observe the deadlines laid down by the Rules for prosecuting the appeal, I would allow the respondent"s motion and dismiss the appeal for undue delay in prosecuting the proceeding.
A.D.
R.D.
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
APPEAL FROM TRIAL DIVISION JUDGMENT ON AUGUST 13, 1999 (IMM-4907-98)
| STYLE OF CAUSE: LEKRIM BENSALAH v. MCI |
| PLACE OF HEARING: OTTAWA, ONTARIO |
| REASONS FOR ORDER BY: Noël J.A. |
| CONCURRED IN BY: Desjardins and Décary JJ.A. |
WRITTEN MOTION DECIDED WITHOUT APPEARANCE BY PARTIES
| RENDERED ON: March 10, 2000 |
| Jean-François Bertrand FOR THE APPELLANT |
| Josée Paquin FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Bertrand, Deslauriers FOR THE APPELLANT |
Montréal, Quebec
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 Paras. 3, 5 and 6 of affidavit by Fabienne Clément sworn on February 14, 2000.
2 Idem, para. 4.
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