Date: 20010619
Docket: IMM-1114-01
Neutral Citation: 2001 FCT 676
BETWEEN:
LEACROFT ANTONIO LEWIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARGRAVE, P.
[1] This application for an extension of time within which to file an Affidavit of Service of the Application for Leave and for Judicial Review and to extend time to serve and file the Record, represents an awkward situation. On the one hand, the Applicant, if denied the right to proceed, stands to be deported to Jamaica without further hearing, where he has no family, friends or prospects of work, cutting off access to children, mother and a sibling, unless they can travel to Jamaica. On the other hand, the Respondent has substantial law and an appropriate factual underpinning as the basis for opposing the Motion for the extensions.
Background
[2] The Application for Leave and for Judicial Review in this proceeding was filed 6 March, 2001, with the Applicant's Record due for filing 6 April, 2001, at issue being the opinion of the Minister that the Applicant constituted a danger to the public pursuant to section 70(5) of the Immigration Act.
[3] The affidavit material filed on behalf of the Applicant is brief. It sets out that the filing times were inadvertently missed, but provides no specifics. The affidavit goes on to submit that for compassionate reasons the Applicant should have the opportunity to have his appeal heard. It then sets out two compassionate reasons: first, that the Applicant "will be deported to a country where he has no family or friends, and is unlikely to be able to find work."; and second, that "he will also not be able to see his children or his mother and a sibling, unless they can travel to Jamaica.". The written representations, on behalf of the Applicant add little, other than that the filing dates were "...inadvertently missed due to a staff shortage, and heavy workload."
[4] The affidavit on behalf of the Applicant does not set out when the Application for Leave and for Judicial Review (also referred to as the "Application") was served upon the Respondent's office. To the contrary the affidavit sworn on behalf of the Minister, by a paralegal who is assisting counsel for the Respondent, sets out that:
I reviewed the office file relating to this matter and found no record of the Respondent being served by the Applicant with a certified copy of his application for leave and for judicial review. Only a photocopy of the Applicant's application was provided to this office by the Registry of this Court.
Counsel for the Applicant has had ample time within which to set the record straight as to service of the Application, but has not filed any reply material. From the Respondent's uncontradicted evidence it may well be that the Application for Leave and for Judicial Review was filed, but never served, contrary to section 82.1(3), which requires service within fifteen days after the Applicant becomes aware of the decision, however that is another issue. The filing of the Application on 7 March, 2001 appears timely given that the decision of the Appeal Division of the Immigration and Refugee Board was that of 19 January, 2001. The first critical time period, for the purposes of this Motion, is that proof of service be filed within ten days after the Application has been served, as required by Federal Court Immigration Rule 7(2). Second, the Applicant must serve and file a Record within 30 days of filing the Application.
Analysis
[5] The Respondent makes the interesting point that an extension of time within which to file an Affidavit of Service is moot, since there is no record of the Application itself ever being served. The Respondent goes on to submit that there should be no entitlement to file an Application Record until the Application for Leave and for Judicial Review has been properly served. All of this may well be correct, however the Applicant might also be able to establish service by way of an affidavit of service. As the Motion stands, I must consider whether, in the interests of justice, a time extension ought to be granted as sought. The factors going into the granting of an extension are open ended. By Grewal v. M.E.I. [1985] 2 F.C. 263 (F.C.A.) I must keep in mind that I must do justice between the parties and that to do so may require a balancing of various elements, as set out by Mr. Justice Marceau at page 282 of Grewal.
[6] While a number of criteria have been considered, in various cases dealing with time extensions, the basic test is still that set out in Grewal (supra) as summed up by Mr. Justice Strayer, as he then was, in Beilin v. Minister of Employment and Immigration (1995) 88 F.T.R. 132 at 134, the issue there being an extension of time within which to file a Record:
As a condition for obtaining such an extension of time an Applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case (See e.g. Grewal v. M.E.I....).
Mr. Justice Marceau, in Grewal, is a little less absolute referring, as I have noted, to a balancing of the various factors involved and the acknowledgement that a weak case, on one aspect, may be balanced by a strong case on another aspect. Thus the admonition, in Beilin, that the whole of the delay must be accounted for, I think not a concept explicitly set out in Grewal, is applied in practice, for example as was done by Mr. Justice Muldoon in Suen v. Canada, an unreported 4 April, 1996 decision in file number IMM-937-96 who observed at paragraph 7, that the Federal Court leans against an extension of time, where there has been a default, unless there is a good account of all of the delay:
Judicial review proceedings in immigration matters are summary proceedings to be carried on with dispatch according to an abundance of jurisprudence. The Court leans against extending defaulted time limits, unless a good account can be given for every day of the delay.
In the present instance the Applicant's material sets out that the time for the filing of the Affidavit of Service and of the Record "was inadvertently missed", with counsel adding, in his written representations, that the missed dates were a result of staff shortage and heavy workload.
[7] I have some sympathy with a heavy workload argument, yet to do justice one must also consider that the vast majority of counsel, despite heavy workloads, manage to meet time requirements. Here counsel for the Respondent refers to a well known passage from Chin v. M.E.I. (1994) 69 F.T.R. 77 at pages 79-80:
[7] I think I should set out my approach to motions for extensions of time. I start with the premise that the time limits set out in the Rules are meant to be complied with. If they are too short then requests should be made to have the Rules amended so that the time limits are lengthened. I do not grant requests for extensions of time merely because it is the first time that counsel has asked or because the work load which counsel has assumed is too great. I think such decisions are unfair to those counsel who refuse clients because their work load is too heavy to allow them to meet required deadlines or who "pull out all the stops" to meet the deadlines, at great inconvenience to themselves. As I have indicated I take the view that the time limits set out in the Rules are meant to be complied with and they are meant to apply to everyone equally. If an automatic extension was meant to be available merely because counsel seeks one, then, the Rules should provide for such an automatic extension, for everyone, when such is sought.
In this passage Madam Justice Reed points out that to grant an extension, on the basis of a heavy workload, is unfair both to counsel who refuse clients in order to allow them to meet deadlines and to counsel who pull out all the stops to meet deadlines, at great inconvenience to themselves. Madam Justice Reed then took a positive approach, explaining when she did grant extensions of time:
[8] On what grounds then do I grant an extension of time. I have already indicated that, in general, I am not receptive to requests which are based solely on the work load counsel has undertaken. When an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event.
In effect, an unexpected or unanticipated event can tip the balance so that doing justice requires an extension of time.
[8] In the present instance we have a heavy workload as an excuse, an excuse which is not acceptable and then a very brief reference to "staff shortage": without more a mere reference to a staff shortage is insufficient, for it does not invoke the concept of an unexpected or unanticipated event, beyond the control of the Applicant or counsel and here I would refer to Brown v. Canada (1996) 128 F.T.R. 3 (F.C.T.D.). In Brown the Applicant had been somewhat lax throughout and, for that reason, even though the delay was only for one day, had his application for a time extension refused. Here we have an application for an extension of time for filing a Record, due 6 April, 2001, not brought on until about six weeks later, 22 May, 2001, the delay essentially as a result of an oversight and to a heavy workload, with the only possible excuse being, without elaboration, a staff shortage.
[9] The matter does not end with a consideration of delay for, as set out in both Grewal and in Beilin (supra), there is a matter of demonstrating an arguable case. Chief Justice Thurlow, in Grewal (supra) adopted, at pages 271-272, the view of Chief Justice Jackett in Consumers' Association (Canada) v. Ontario Hydro [No. 2] [1974] 1 F.C. 460 (F.C.A) at page 463, that the test for a time extension included a consideration of whether the proposed appeal is arguable. Mr. Justice Muldoon summed up this concept in a later case, Aguiar v. Canada (Minister of Citizenship and Immigration) (1996) 106 F.T.R. 304 at 306:
[6] Now, when filing within statutory time limits, an applicant's chances of success are not usually scrutinized as part of the exercise of the right to proceed. But, as the applicant's counsel submits and acknowledges, when seeking an exceptional extension beyond the prescribed time limit a salient consideration in moving the court to grant such extension is "whether or not there is a good case on the merits see [jurisprudence cited]".
[7] On this record there is just no means of determining what the applicant's case is, or how good it might be on the merits.
Aguiar dealt with an extension of time within which the Application for Leave and for Judicial Review might be served. There there was no indication of whether the case was an arguable one, other than a bare assertion that the designating of Mr. Aguiar as a danger to the Canadian public was in error. Here, in the material filed on behalf of the Applicant on this Motion, there is no reference whatsoever to the worth of the case, other than the brief argument based on compassion, which may garner some sympathy, but which has no inherent weight when it comes to the merits of the Applicant's case. There is no demonstrably arguable issue to put before the Court.
Conclusion
[10] Given that there is no excuse, acceptable as law, for the delay and that on the material filed and referred to on this Motion by the Applicant, neither demonstrably
arguable case nor any other pertinent factors, it is not in the interests of justice to grant a time extension. Here I recognize that the refusal of an extension may well work a hardship on the Applicant, however extensions are not automatic, but must be earned by meeting at least some of the criteria for a time extension set out in the case law.
[11] The Motion for time extension is dismissed.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
June 19, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1114-01
STYLE OF CAUSE:Leacroft Antonio Lewis v. The Minister
of Citizenship and Immigration
REASONS FOR ORDER OF Mr. John A. Hargrave, Prothonotary.
DATED: June 19, 2001
APPEARANCES:
Morris Lyons, Q.C.
(by way of Rule 369 Motion in Writing) For Applicant
W. Brad Hardstaff
(by way of Rule 369 Motion in Writing) For Respondent
SOLICITORS OF RECORD:
Lyons Albert & Cook For Applicant
Morris Rosenberg For Respondent
Deputy Attorney General of Canada