Date: 19981216
Docket: IMM-3294-98
IMM-3298-98
IMM-3299-98
IMM-3294-98
BETWEEN:
LUCINA REBOLLEDO DE VEGA
and MOISES VEGA REBOLLEDO
and IMER VEGA REBOLLEDO,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent,
IMM-3298-98
AND BETWEEN:
IRENE VEGA REBOLLEDO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent,
IMM-3299-98
AND BETWEEN:
ROCIO VEGA REBOLLEDO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] On 15 October 1998 I allowed three applications for extensions of time within which to serve and file the Applicants' Records. The Order provided that counsel forthwith personally pay the costs of the motions, set at $100 each.
[2] Counsel, by motion of 28 October 1998, seeks reconsideration of the Order under Rule 397 and, by implication, and extension of time within which to bring that motion. The latter is granted, for in the circumstances it was perhaps proper to seek advice from senior litigation counsel, who was not immediately available: that is an appropriate reason for a time extension in this instance.
[3] Reconsideration under Rule 397, as applicable in the present instance, is fairly narrow: a party may, within 10 days of the making of an order, or within such further time as the Court allows, seek reconsideration on the basis that "... a matter that should have been dealt with has been overlooked or accidently omitted.".
[4] As grounds for the motion, counsel refers to Rule 404(2) in part 11 of the Federal Court Rules, which provides that no Order for payment of costs by counsel be made unless counsel has had an opportunity to be heard. I based my order as to costs on Immigration Rule 22, which allows costs to be awarded in special circumstances. The special circumstances were clearly acknowledged in the Applicants' Motion Record of 18 September 1998. At the time I felt it best not to give written reasons which would embarrass counsel, but to bring home to counsel that to miss a limitation through not knowing of a Rule was unfortunate, but to miss three, on the basis of a deplorable knowledge of the Federal Court Rules, was sheer carelessness. This now merits a more detailed consideration.
[5] The excuse given by counsel for the missed filing date was marginal at best. The excuse was that counsel, who practices immigration litigation regularly in this Court, thought the Federal Court still observed summer vacation by stopping all time from running. Counsel specifically thought that the long vacation rule, Rule 3(1)(b) together with Rule 4, which stopped time running during July and August, was still in effect. In fact, that portion of the long vacation rule, which stopped time running, was revoked by Section 1 of SOR/94-41 of 13 January 1994. That counsel also missed the current applicable provision, Rule 6 of the 1998 Federal Court Rules, is also unfortunate. Again there is no reference to the long vacation, or "summer recess" as it is now called, in Rule 6, which deals with the computation of time.
[6] Now in most instances one does not separate counsel's conduct from that of the client. This may on occasion be harsh, for an innocent client may bear the consequences of hiring counsel who turns out to be less than adequate. This concept is clearly put by Madame Justice Reed in Jouzichin v. MCI, an unreported 9 December 1994 decision in IMM-1686-94, at page 2:
| Also, you cannot separate counsel's conduct from the client's conduct. Now, I know that in some of the immigration cases, where there has been clear incompetence by counsel, some of my colleagues have said that counsel was so incompetent that a breach of natural justice occurred. But, the general rule is that you do not separate counsel's conduct from the client. Counsel is acting as agent for the client and as harsh as it may be the client must bear the consequences of having hired poor counsel. |
[7] There is limited exception to this fairly severe rule, being the extraordinary case when the specific and clearly shown flaws in the competency of counsel give rise to natural justice concepts, including that justice should be seen to be done. This exception is touched upon by Mr. Justice Rothstein in Drummond v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 258 at 259:
| "... 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 ("the Law Society") and not the courts which have the mandate to deal with incompetence of counsel; see Williams v. Canada (Minister of Employment & Immigration) (1994), 74 F.T.R. 34. However, in extraordinary cases, competency of counsel may given rise to a natural justice issue. In such cases, the facts must be specific and clearly proven;..." |
It is quite extraordinary the counsel, who practices immigration law on a regular basis in the Federal Court, a practice in which time computations are critical, should be unaware that time continued to run against clients during July and August.
[8] Because the Applicants, in each instance, seemed to have an arguable case and so that justice might be done I granted the time extensions, even in the face of an excuse for missing the filing time which was less than adequate. But coupled with that extension was the requirement that counsel personally pay $100 costs in each file, for I felt the circumstances clearly came within the special reasons test under Immigration Rule 22. The special reasons include both the failure of counsel to be aware of a very clear and specific change in the Rules, which occurred some 4 and a half years ago and the need to bring that requirement home to counsel. That counsel now advises that these three files are being handled on a pro bono basis is commendable, but does not excuse a clear lack of knowledge of the Rules.
[9] My initial and perhaps overly hasty assessment was that Immigration Rule 22, which provides for costs when there are special reasons, was a complete authority by which to exercise discretion and award costs against counsel personally in this instance. I felt that Section 404(2) of the Federal Court Rules, allowing counsel to show cause why costs should not be awarded personally against him or her, ought not to apply by reason of Immigration Rule 4. Here I overlooked that Immigration Rule 4 imports into all applications under the Immigration Act various portions of the Federal Court Rules, including as to costs, "except to the extent that they are inconsistent" with the Immigration Act or Immigration Rules. An "application" is broadly defined in the Immigration Rules. Federal Court Rule 404, dealing with the liability of a solicitor for costs and the opportunity to be heard on the point, is not inconsistent with Immigration Rule 22. Thus counsel for the Applicants makes a valid submission.
[10] I see no sensible reason to ask counsel for the Applicants to now make submissions as to why she ought not to be personally liable for costs in the nominal amount of $100 on each of the three files. Counsel is surely now aware that she ought to review the 1998 Federal Court Rules and compare them with the previous Rules in order to make herself aware of the procedure in the area in which she practices. Thus the portion of each of the 15 October 1998 Orders, dealing with costs, is vacated as a result of a matter which was accidently overlooked.
[11] Counsel for the Respondent submits that the whole of each of the 15 October 1998 Orders ought to fall, I suspect on the basis that the excuse of lack of knowledge of a Rule change that took place a number of years ago ought not to be a good excuse upon which to obtain a time extension. However, it would be unjust to make the Applicants suffer for the extraordinary lapse by counsel, that of being many years out of date in her comprehension of the Rules of this Court.
[12] I thank counsel for the Respondent for taking the time to produce helpful written submissions.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
December 16, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NOS.: IMM-3294-98
IMM-3298-98
IMM-3299-98
STYLES OF CAUSE: LUCINA REBOLLEDO DE VEGA ET AL.
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND BETWEEN: IRENE VEGA REBOLLEDO
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND BETWEEN: ROCIO VEGA REBOLLEDO
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated December 16, 1998
WRITTEN SUBMISSIONS BY:
Ms. Brenda Y Muliner for Applicants
Ms. Emilia Pech for Respondent
SOLICITORS OF RECORD:
Brenda Y. Muliner
Barrister & Solicitor
Vancouver, BC for Applicants
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada