Date: 19980320
Docket: IMM-5564-97
Ottawa, Ontario, this 20th day of March 1998
Present: The Honourable Mr. Justice Pinard
Between:
MAMADOU TRAORÉ, domiciled and residing at
4685 rue Jeanne d'Arc, Apartment 8, Montréal, Quebec H1X 2E4,
Applicant,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA,
Complexe Guy-Favreau, 200 René-Lévesque West, East Tower,
5th floor, Montréal, Quebec,
Respondent.
Application by the applicant asking the Court to:
ALLOW the applicant's appeal;
| SET ASIDE the order made by Richard Morneau, Prothonotary, on February 23, 1998, dismissing the applicant's application for an extension of time for filing and serving the applicant's record; |
| ALLOW the applicant's application for an extension of time for filing and serving the applicant's record, dated February 11, 1998. |
[Rules 2(2), 302, 336(5) of the Federal Court Rules and
Rule 21(2) of the Federal Court Immigration Rules]
ORDER
The application is allowed, the order made by the Prothonotary on February 23, 1998 is set aside and the applicant will be allowed to file and serve the applicant's record within five days of the date of this order.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
Date: 19980320
Docket: IMM-5564-97
Between:
MAMADOU TRAORÉ, domiciled and residing at
4685 rue Jeanne d'Arc, Apartment 8, Montréal, Quebec H1X 2E4,
Applicant,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA,
Complexe Guy-Favreau, 200 René-Lévesque West, East Tower,
5th floor, Montréal, Quebec,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] The applicant is appealing, by application, from the order of the Prothonotary dated February 23, 1998, dismissing his application for an extension of time for filing and serving the applicant's record.
[2] Plainly, the Prothonotary's decision relates to a question that has a determining effect on the outcome of the main action, since the effective result of the failure to file the applicant's record is dismissal of his application for leave to apply for judicial review. This is sufficient to compel me, as the judge hearing the application, to exercise my discretion (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, 463).
[3] In support of his application for an extension of time, the applicant placed in evidence the following facts, which are not disputed:
| - the delay in receiving the audio cassettes of the hearing before the Immigration and Refugee Board (IRB), and the difficulties in obtaining a transcript of that recording; |
| - the six working days or so lost by his lawyer because of the extraordinary ice storm during the 30 days allowed for filing the applicant's record; and |
| - the fact that his lawyer learned, the day before the expiry of the time allowed, that his father had suffered a serious cerebral thrombosis, which news [translation] "affected the lawyer's ability to concentrate" during the last day of the time allowed. |
[4] The Prothonotary based his decision expressly and strictly [translation] "on the basis of the reasons set out in paragraphs 9 to 14 of the respondent's submissions, filed on February 20, 1998". Those reasons dealt only with the delay in obtaining the audio cassettes of the IRB hearing and filing the transcript of those recordings; they in no way referred to the consequences of the extraordinary ice storm and of the information learned by the applicant's lawyer at the last minute about his father's very serious and sudden illness.
[5] I am in complete agreement with the respondent that in this kind of case the delay in receiving the audio cassettes of the earlier hearing, and the difficulties in obtaining a transcript of the recordings, are not generally a reasonable explanation to justify granting an extension of time. In fact, this is what I decided earlier in Karasik v. M.C.I. (July 6, 1994), IMM-2102-94. However, having regard to the extraordinary nature of the other circumstances cited by the applicant and the exact moment at which they occurred, those circumstances seem to me to be a reasonable explanation for the delay in filing the applicant's record, and justify allowing the motion.
[6] Accordingly, the applicant will be allowed to file and serve the applicant's record within five days of the date of the order in support of which these reasons are written.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 20, 1998
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-5564-97
STYLE OF CAUSE: MAMADOU TRAORÉ v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: MARCH 16, 1998
REASONS FOR ORDER OF PINARD J.
DATED: MARCH 20, 1998
APPEARANCES:
GILLES LESPÉRANCE FOR THE APPLICANT
IAN HICKS FOR THE RESPONDENT
SOLICITORS OF RECORD:
GILLES LESPÉRANCE FOR THE APPLICANT
MONTRÉAL
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada