Date: 20030430
Docket: IMM-4372-02
Neutral citation: 2003 FCT 540
Toronto, Ontario, Wednesday, the 30th day of April, 2003
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
PADMALEELA YOGALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an appeal by the applicant from a decision of Prothonotary Lafrenière dismissing the applicant's motion for an extension of time to file the application record to five days from the date the order is made.
[2] The applicant sought the extension of time to obtain the tape recording of the hearing of the applicant's refugee hearing before the Immigration and Refugee Board (the "IRB") in order to perfect the applicant's record in her leave application.
[3] The affidavit filed in the motion does not state the tapes are necessary in order to complete the application record of the applicant.
Issue
[4] Should the appeal of the Prothonotary's decision be allowed?
Analysis and Decision
[5] The respondent raised a preliminary argument that I lacked jurisdiction to hear the appeal because the appeal of a Prothonotary's decision is an appeal of an interlocutory judgment and this is barred by paragraph 72.(2)(e) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, ("IRPA") which states:
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72.(2) The following provisions govern an application under subsection (1):
. . .
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment. |
72.(2) Les dispositions suivantes s'appliquent à la demande d'autorisation:
. . .
e) le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d'appel. |
[6] As noted earlier, this is an appeal of a Prothonotary's decision dismissing the applicant's motion for an extension of time to file an application record. A decision refusing the motion for an extension of time to file an application record is an interlocutory order (see Canada (Attorney General) v. Hennelly, [1995] F.C.J. No. 1183 (QL) (C.A.)).
[7] As paragraph 72.(2)(e) of IRPA, supra states that there is no appeal from the decision of the Court with respect to an interlocutory judgment, the respondent submits that the Prothonotary's order is not appealable.
[8] However, Rule 51.(1) of the Federal Court Rules, 1998, S.O.R./98-106 states that an order of the Prothonotary may be appealed to a judge of the Trial Division.
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51. (1) An order of a prothonotary may be appealed by a motion to a judge of the Trial Division. |
51. (1) L'ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Section de première instance. |
[9] Therefore, in order to assess this preliminary argument, resort must be made to Rule 1 of the following Federal Court Rules, 1998, supra:
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1. (1) These Rules apply to all proceedings in the Court unless otherwise provided by or under an Act of Parliament.
(2) In the event of any inconsistency between these Rules and an Act of Parliament or a regulation made thereunder, that Act or regulation prevails to the extent of the inconsistency.
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1. (1) Sauf disposition contraire d'une loi fédérale ou de ses textes d'application, les présentes règles s'appliquent aux instances devant la Cour.
(2) Les dispositions de toute loi fédérale ou de ses textes d'application l'emportent sur les dispositions incompatibles des présentes règles.
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[10] Rule 1.(2) provides that if there is an inconsistency between the Federal Court Rules, 1998, supra and an Act of Parliament, the Act prevails over the Rules to the extent of the inconsistency.
[11] There is an inconsistency between Rule 51.(1) of the Federal Court Rules, 1998, supra and paragraph 72.(2)(e) of IRPA, supra, which is an Act of Parliament. As a result, the provision of paragraph 72.(2)(e) applies and there is no appeal to this Court from the Prothonotary's order. I therefore have no jurisdiction to hear such an appeal.
[12] I therefore find that I have no jurisdiction to hear the appeal.
[13] The applicant has requested that I certify the following questions:
1. Whether s. 72 of the Immigration and Refugee Protection Act bars an appeal within the Federal Court of Canada - Trial Division from the decision of a prothonotary to a judge of the Federal Court of Canada - Trial Division.
2. Whether, if the answer to question one is "yes", a prothonotary has the power to certify a question of general importance.
3. Whether, when an applicant has diligently pursued receiving the recording of a tribunal proceeding, the delay in providing a recording is the tribunal's fault, and the applicant requests an extension of time before the expiry of the time limits - the applicant must nevertheless present evidence to show an arguable case before he can be granted an extension of time to receive that recording.
[14] I am prepared to certify only question one as a serious question of general importance pursuant to subsection 74.(d) of IRPA, supra.
ORDER
IT IS ORDERED that:
1. Paragraph 72.(2)(e) of the Immigration and Refugee Protection Act, supra removes the jurisdiction to hear an appeal of the Prothonotary's decision in this case.
2. The following serious question of general importance is certified pursuant to subsection 74.(d) of the Immigration and Refugee Protection Act, supra:
Whether s. 72 of the Immigration and Refugee Protection Act bars an appeal within the Federal Court of Canada - Trial Division from the decision of a prothonotary to a judge of the Federal Court of Canada - Trial Division.
"John A. O'Keefe"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4372-02
STYLE OF CAUSE: PADMALEELA YOGALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, NOVEMBER 25, 2002
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: WEDNESDAY, APRIL 30, 2003
APPEARANCES: Mr. Raoul Boulakia
For the Applicant
Ms. Kareena Wilding
For the Respondent
SOLICITORS OF RECORD: Raoul Boulakia
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030430
Docket: IMM-4372-02
BETWEEN:
PADMALEELA YOGALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER