Date: 19980126
Docket: IMM-4428-97
BETWEEN:
ORNA FRENKEL, IMANUEL BABAKHANIN,
KHEZAEL BABAKHANIN, YAEZER BABAKHANIN
and YAKOV SHANIN MESHIKHI
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] On 8 December 1997, Madame Justice McGillis dismissed the Applicants' application for leave to review a decision rendered by the Immigration and Refugee Board. The application for leave was dismissed by reason of the failure of the Applicants to file a record.
[2] The Applicants, by motion filed 12 January 1998, seek an extension of time within which to apply to Madame Justice McGillis for a reconsideration of her 8 December 1997 decision, pursuant to Rule 337(5)(b) "... that some matter that should have been dealt with has been overlooked or accidently omitted.".
BACKGROUND
[3] By way of background, the Applicants, who act for themselves, filed their application for leave on 20 October 1997 in the Montréal Registry. The Applicants' record, due on 19 November 1997, was never filed.
[4] The Applicants, who moved from Montréal to Vancouver on either 13 or 14 November 1997 and who subsequently saw a local lawyer, say that lawyer was supposed to have filed the record. This is denied. However, it is clear that by the time the local counsel was instructed the time for filing the record was at least very near.
[5] Against this background, the Applicants would like Madame Justice McGillis to reconsider her decision of 8 December 1997, but first they must obtain an extension of time within which to file a motion for reconsideration.
CONSIDERATION
[6] In order to obtain an extension of time an applicant must both set out a reasonable explanation for failing to act within the 10 day time period for reconsideration under Rule 337(5) and also show there is a reasonable chance that on reconsideration the applicant will succeed: see for example Vinogradov v. Canada (1994), 77 F.T.R. 296 at 298 and Kibale v. Canada (1990), 103 N.R. 387 at 388 (F.C.A.).
[7] The Registry in Montréal sent out notice that the application had been dismissed on 16 December 1997, thus eight of the ten day time limit had passed. Through no fault of the Registry the notice of the dismissal went initially to the Applicants' address at Rawdon, Québec. The Applicants, who by than were in British Columbia, but who had given no advice of their change of address, did not receive this notice until early January, 1998. The initial affidavit material in support of the present motion was sworn Friday, the 9th of January and filed, with the motion, 12 January 1998. Notwithstanding the failure of the Applicants to advise the Court of their new address in a timely manner, I am prepared to give the Applicants the benefit of the doubt and allow that they have made a reasonable explanation for their delay. I now turn to whether the Applicants have an arguable case or, as the test is often put, have a reasonable chance of success were reconsideration to take place.
[8] One must keep in mind that Rule 337(5) is not a mechanism whereby a litigant may reargue a case in order to obtain a different result: see for example the headnote of Murray v. Public Service Staff Relations Bound, [1985] F.C.A.D. 3008-01 (F.C.A.). Nor does it allow the Court to re-examine conclusions the Court drew from the material that was available at the time: Chin v. M.E.I. (1994), 69 F.T.R. 77 at 79. Furthermore, Rule 337(5) is not an appeal mechanism whereby a party may validate or complete a plea: Kibale v. Canada (1989), 103 N.R. 387 at 390(F.C.A.). Nor does the Rule give rise to relief where a party fails to include available material in his or her application: Boateng v. Canada (1990), 112 N.R. 318 at 319 (F.C.A.).
[9] Rule 337(5) provides for reconsideration on two grounds. Reconsideration is limited to the grounds set out in the Rule and no other grounds may be considered: Asbjorn Horgard v. Gibbs/Nortac Industries Ltd. (1987), 16 C.P.R. (3d) 112 at 113 (F.C.A.). The first ground for reconsideration is that the judgment does not accord with the reasons, but that is not applicable here. The second ground, set out in 337(5)(b), provides for reconsideration on the ground "... that some matter that should have been dealt with has been over looked or accidently omitted.". The oversight or omission referred to in Rule 337(5) is an oversight on the part of the Court, not an oversight committed by a party: Boateng v. Canada (loc.cit.).
[10] The Applicants say the present state of affairs came about through an oversight on the part of their Vancouver counsel who failed either to file a record in a timely manner or to obtain an extension of time: in Jouzichin v. M.E.I., (IMM-1686-94) an unreported decision of Madame Justice Reed of 9 December 1994, she points out at page 2 that one does not separate counsel's conduct from that of the client, for counsel is acting as agent and as harsh as that concept and its result may be, the client must bear the consequence of having hired poor counsel. See also Kumarasamy v. Canada, (IMM-4340-94) an unreported decision of Mr. Justice Cullen of 4 July 1995, in which he concedes at page 4 that this may seem an unduly harsh rule "... particularly in the context of where an applicant speaks little English and had little knowledge of Canadian legal procedures, [however] it must be remembered that the applicant has his or her choice of counsel.".
[11] Generally speaking it is not for the Courts to deal with allegations of incompetence of counsel: see Williams v. M.E.I. (1994), 74 F.T.R. 34 at 38. In an extraordinary case, competency of counsel may give rise to a natural justice issue. However there is a heavy burden on an applicant to come within this exception: see for example Sheika v. Canada (1990), 71 D.L.R. (4th) 604 at 611 (F.C.A.); Huynh v. M.E.I. (1994), 21 Imm.L.R. 18 at 21 and following (F.C.T.D.); Shirwa v. M.E.I. (1994), 23 Imm.L.R. (2d) 123 at 128 and following (F.C.T.D.); and Drummond v. M.C.I. (A-771-92) an unreported 11 April 1996 decision of Mr. Justice Rothstein, who sums up the law in this area:
| "... The authorities are to the effect that as a general rule, where counsel is freely chosen, it is the professional accreditation body such as the Law Society of Upper Canada... and not the Courts which have the mandate to deal with incompetence of counsel; .... However, in extraordinary cases, competency of counsel may give rise to a natural justice issue. In such cases, the facts must be specific and clearly proven; .... (page 2). " |
In the present instance the affidavit material in support of this motion leaves much to be desired. There is some rather general affidavit evidence which might indicate that counsel in Delta, British Columbia, instructed by the Applicants, did not fulfil the Applicants' expectations arising out of their last minute instructions. To the contrary, that lawyer denies any default on his part and indicates that any difficulty arose because the Applicants failed to ensure their record was filed in a timely manner in Montréal. The Applicants have not demonstrated that this is an exceptional case in which the competency of counsel is specifically and clearly proven so as to give rise to review by way of a denial of any of the elements of natural justice.
[12] I have also considered whether the absence of the record might be considered merely a procedural irregularity and therefore whether the decision to dismiss the application, which otherwise would be final, might be revisited. However, this was considered by the Federal Court of Appeal in Metodieva v. M.E.I. (1992), 132 N.R. 38. That case was decided under Rule 9(1) of the Immigration Rules then in effect, a Rule which required that affidavits be filed as an integral part of the application for leave. Our present Immigration Rule 10, requiring the filing of a record and that it contained, among other things, supporting affidavits, is similar to the former Rule 9. In the Metodieva case the Court of Appeal pointed out (page 39) that an order once signed by a judge is final, subject only to relief provided for in Rule 337, for example in Rule 337(5), and the Court has no jurisdiction, through a new proceeding, to seek the same relief by looking at the matter again: once it has been decided, it may not be decided a second time (pages 42 and 43). In Metodieva the applicant had argued that as a foreigner in Canada she ought not to be victim of a procedural error by her counsel. The Court of Appeal rejected that concept for three reasons. First, the fact of dismissal for a procedural defect "... does not in any way change the fact that the order made is final and not subject to be reconsidered, apart from the allowable cases." (page 43). Second, the Court pointed out that the absence of affidavit material is a substantial defect, for the Rules then in effect made the filing of an affidavit an integral part of an application and that an application for leave not supported by an affidavit is incomplete and cannot be allowed by the Court. (loc.cit.) Third, that the applicant, as a foreigner in Canada, was unaware of the procedure did not confer any special status in respect of errors which she or her counsel may have made (ibid page 44). In the result, the Court of Appeal in Metodieva dismissed an application for an extension of time within which to review the initial decision.
CONCLUSION
[13] As I have pointed out, Rule 337(5)(b) requires there be an oversight or omission on the part of the Court in order to obtain a reconsideration of a final decision. In the present instance the only oversight was that of the Applicants, who failed both to see to the filing of their record in a timely manner and who, at a time when it might have been appropriate, did not obtain an extension of time within which to file the record. Instead, the Applicants allowed the matter to proceed in the absence of a record. The Court, faced with the absence of a record, an integral part of the judicial review procedure, had no option but to dismiss the matter. The dismissal was in the form of a final judgment. The Applicants, unfortunately, present no argument which has any reasonable chance of successfully changing the order dismissing their judicial review application. This motion is, regrettably, dismissed.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
January 26, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4428-97
| STYLE OF CAUSE: ORNA FRENKEL, IMANUEL BABAKHANIN, KHEZAEL BABAKHANIN, YAEZER BABAKHANIN and YAKOV SHANIN MESHIKHI, |
Applicants,
| - and - |
| MINISTER OF CITIZENSHIP |
| AND IMMIGRATION, |
Respondent.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 19, 1998
| REASONS FOR ORDER OF THE COURT BY: |
MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: January 26, 1998
APPEARANCES:
| Orna Frenkel for Applicants |
| Applicant |
| Barbara Burns for Respondent |
| Justice Canada |
SOLICITORS OF RECORD:
| Orna Frenkel for Applicants |
| Applicant |
| George Thomson for Respondent |
Deputy Attorney General of Canada