Date: 20070411
Docket: A-23-07
Citation: 2007 FCA 144
CORAM: RICHARD
C.J.
SHARLOW
J.A.
PELLETIER
J.A.
BETWEEN:
KAMRAN MOGHBEL
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
Mr. Kamran Moghbel is the subject of an order
dated February 24, 1997 (Court File A-245-94) made under what is now section 40
of the Federal Courts Act. It prohibits him from commencing and
continuing any proceeding in the Federal Court of Appeal without leave.
[2]
Mr. Moghbel is also the subject of a 1993 order
made under section 40 in relation to the Federal Court. On October 20, 2006, a Federal
Court judge directed that despite the 1993 order, Mr. Moghbel would be
permitted to seek an extension of time for commencing an application in the
Federal Court for judicial review of a 1994 decision of the Canadian Human
Rights Commission. Mr. Moghbel's motion to the Federal Court for an extension
of time was denied on December 15, 2006 (2006 FC 1499).
[3]
On January 15, 2007, Mr. Moghbel submitted to this
Court a notice of appeal of the decision denying the extension of time. The
Registry Officer, not being aware of the section 40 order of February 24, 1997
in relation to the Federal Court of Appeal, accepted the notice of appeal for
filing. He should not have done so. However, since he had done so, an order was
made requiring Mr. Moghbel to show cause why his notice of appeal should not be
removed from the court file and his filing fee returned to him. He was given an
opportunity to seek, at the same time, leave to commence or continue the
appeal.
[4]
Mr. Moghbel has now filed a notice of motion
which I will take as a motion that his notice of appeal not be removed from the
court file, and that his appeal be allowed to continue. The respondent has not
filed a response.
The motion should be granted only if Mr. Moghbel
establishes that the appeal is not an abuse of process and that there are reasonable
grounds for the appeal (see subsection 40(4) of the Federal Courts Act).
[5]
I am satisfied that the appeal is not an abuse
of process. However, for the following reasons, I am not satisfied that there
are reasonable grounds for the appeal.
[6]
The decision sought to be appealed is a decision
of the Federal Court denying an extension of time to commence an application
for judicial review.
That is a discretionary decision. It will not be reversed on appeal in the absence of an error of law or failure to give sufficient
weight to all relevant considerations.
[7]
The leading case on the question of granting an
extension of time to commence a proceeding is Grewal v. Canada (Minister of Employment and
Immigration), [1985] 2 F.C. 263 (C.A.). That case
establishes that, in considering an application for an extension of time, the
relevant factors may include any or all of the following: (a) the merits of the
application, (b) whether the applicant has had a continuing intention to bring
the application, (c) the reason for the delay, and (d) whether the responding
party has suffered any prejudice because of the delay.
[8]
The
decision of the Commission that Mr. Moghbel seeks to have reviewed by the
Federal Court is dated December 19, 1994. Mr. Moghbel says that he received
notice of the decision on January 19, 1995, one day outside the normal 30 day
time limit for commencing an application for judicial review. His application
for an extension of time to commence the application was filed in October, 2006.
[9]
The
extension of time was denied primarily because the judge concluded that Mr.
Moghbel had not offered a satisfactory explanation for the delay of almost 12
years. Given the extraordinary length of the delay in this case, that
conclusion by itself might have justified denying the motion for an extension
of time. However, the judge also said that the respondent would be unduly
prejudiced because of the length of the delay, and that he was not persuaded
that the application would have a reasonable chance of success.
[10]
The
conclusion of the judge that Mr. Moghbel had not offered a satisfactory
explanation for the 12 year delay is well supported by the evidence. The record
discloses no reasonable explanation.
[11]
Mr.
Moghbel argues that his application for judicial review is based on information
of which he became aware only in 2006. That argument is unsubstantiated by the material
submitted by Mr. Moghbel in support of his motion. I note in particular that
Mr. Moghbel refers to Canada (Human Rights Commission) v. Canada Airlines
International Ltd., [2006] 1 S.C.R. 3, which he says is new information
that supports his application that he could not have known about before 2006.
However, a new development in the jurisprudence generally is not considered to
be new information that would justify a late application for judicial review.
[12]
Mr. Moghbel argues
that there was no evidence that the respondent would be prejudiced by the 12
year delay. It appears that the respondent submitted in argument that a 12 year
delay was prejudicial because the individuals involved might not be available,
or because their memories of the events would have decreased over time. It is
open to a judge to take judicial notice of the normal consequences of delay,
and to accept that a 12 year delay is apt to cause evidentiary problems of the
kind referred to by the respondent in its submissions.
[13]
Mr.
Moghbel argues on a number of grounds that the judge did not give sufficient
weight to a number of relevant factors. He relies on the October, 2006
direction that he says indicates that a different Federal Court judge had found
some merit in his application. He submits that it was not open to the judge
considering his application for an extension of time to reach the opposite conclusion.
This argument is wrong in law. The judge considering Mr. Moghbel’s application
for an extension of time was entitled to reach his own conclusions on the
relevant Grewal factors.
[14]
Mr.
Moghbel argues that the judge did not consider the merits of his argument that
the Commission had made its decision without regard to the material before it,
or his argument that he had established his entitlement to an order in the
nature of mandamus. In the material in support of his motion for an
extension of time, Mr. Moghbel recited at great length his reasons for challenging
the decision of the Commission, but the record discloses no basis for
concluding that the judge failed to read or understand those submissions.
[15]
For these reasons, I
would dismiss Mr. Moghbel’s motion without costs and order the notice of
appeal to be removed from the Court file and returned to the appellant with the
filing fee.
“K. Sharlow”
“I
agree
J.
Richard C.J.”
“I
agree
J.D.
Denis Pelletier J.A.”
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