Ottawa, Ontario, October 14, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is a motion for an extension of time by the respondent the Minister of Citizenship and Immigration.
[2] The applicant, Mary Audrey Clayton, served her application record on the Minister on August 19, 2005.
[3] Pursuant to Rule 11 of the Federal Court Immigration and Refugee Protection Rules (SOR/2002-232), the Minister had to file his record no later than September 19, 2005.
[4] The Minister served this motion on October 3, 2005 and filed it on October 4, 2005.
[5] This motion is two weeks past the deadline.
[6] The Minister filed the affidavit of Deborah Telesford in support of this motion.
[7] Pursuant to the affidavit of Deborah Telesford, the failure of the moving party to file its memorandum of argument on time is due to an administrative error on the part of counsel who takes full responsibility for this administrative failure.
[8] No further elaborations are provided to explain the delay.
[9] To succeed in his motion, the Minister must demonstrate that he has met the conjunctive test for an extension of time originally set out in Grewal v. Canada (Minister of Citizenship and Immigration), [1985] 2 F.C. 263, 63 N.R. 106 (F.C.A.), and refined in subsequent decisions: Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 at 399-400 (F.C.A.), Independent Contractors & Business Association v. Canada (Minister of Labour) (1998), 225 N.R. 19, [1998] F.C.J. No. 352 at paragraph 24 (F.C.A.), Bellefeuille v. Canadian Human Rights Commission et al. (1993), 66 F.T.R. 1, [1993] F.C.J. No. 168 (T.D.) and Nelson v. Commissioner of Corrections (Can.) et al. (1996), 206 N.R.180 (F.C.A.).
[10] McDonald J. summarized the test in Canadav. Hennely, supra, at paragraphs 3, 4 and 6:
The proper test is whether the applicant has demonstrated
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
Any determination of whether or not the applicant's explanation justifies the granting of the necessary extension of time will turn on the facts of each particular case.
. . .
In this case the Motions Judge found that inadvertence was an insufficient explanation for the appellant's delay.
[11] As soon as the applicant had served her record on August 19, 2005, the Minister knew that the clock was ticking. Although the Minister's record is not filed, that does not mean per se that the Minister does not have a continuing intention to pursue his defence. In fact, the applicant has to meet the first threshold and be granted leave. The Minister has the opportunity to file his record after the decision on leave is made.
[12] In this particular case, I am satisfied that the Minister has demonstrated that he had a continuing intention to pursue his defence of the judicial review.
[13] I am satisfied that the Minister has demonstrated that he has an arguable case against the granting of the application for leave and judicial review.
[14] In my view, there is no prejudice to the applicant arising from the delayed filing of the Minister's memorandum of argument.
[15] Nevertheless, the Minister suggests that the failure to file his memorandum of argument on time is due to an administrative error by counsel and that counsel takes full responsibility for this administrative failure. (my emphasis)
[16] The Minister has admitted that an administrative failure is not by itself a necessarily adequate explanation for the delay. (Respondent's motion record, paragraph 15)
[17] In my view, the Minister failed to provide at least a minimal explanation as to the nature of the administrative error committed by counsel in this case.
[18] Therefore, I conclude that the Minister failed to meet the conjunctive test for an extension of time originally set out in Grewal, supra, and followed by subsequent jurisprudence.
ORDER
THIS COURT ORDERS THAT
This motion for an extension of time is dismissed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3917-05
STYLE OF CAUSE:
MARY AUDREY CLAYTON
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Motion in writing presented to Justice Blais
REASONS FOR ORDER AND ORDER: BLAIS J.
APPEARANCES:
n/a
n/a
SOLICITORS OF RECORD:
Yehuda Levinson
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario