Date: 20021216
Docket: IMM-3687-02
Neutral citation: 2002 FCT 1302
Ottawa, Ontario, December 16, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
HARPAL BENIPAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion, made in writing by the applicant, pursuant to Rule 369 of the Federal Court Rules, 1998 [Rules] for:
- an extension of time to bring the motion; and
- a reconsideration of the order of the Court dated October 10, 2002, whereby an application on behalf of the applicant pursuant to section 72(1) of the Immigration and Refugee Protection Act for leave to commence an application for judicial review was denied.
Relevant Legislation
| 397(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
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397(1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour. |
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Extension of Time
[2] Subsection 397(1) of the Rules states that a party may serve and file a notice of motion within 10 days after the making of an order, or within such other time as the Court may allow. [emphasis added]
[3] As established by case law, to obtain leave to extend the time, an applicant must set out a reasonable explanation for the delay and establish an arguable case. (Vinogradov v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 296 (T.D.). Indeed, a party seeking an extension of time must show that his failure to act within the allotted time is excusable, and that there is a reasonable chance that the application he intends to bring will succeed. (Kibale v. Canada (Transport Canada) (1988) 103 N.R. 387 (Fed. C.A.).
[4] In the case at hand, the order the applicant wishes reconsidered is dated October 10, 2002. She therefore had until October 20, 2002 to serve and file her notice of motion. However, before doing so, the applicant waited until November 15, 2002. Unfortunately, the applicant did not offer the Court any reasonable explanation nor did she establish an arguable case justifying an extension of time.
[5] The applicant has not shown cause why the Court should not dismiss her application for delay. The fact that the respondent consents to the motion being made does not set aside the application of the Rules, nor does it automatically entitle the applicant to an extension of time.
[6] In such circumstances, the Court has no other option than to dismiss the said motion.
[7] Although the first issue disposes of the motion, I will nevertheless address the second, for purposes of thoroughness.
Power to reconsider
[8] Rule 397 does not provide an alternative method of appeal. The issue before the Court is whether some matter has been overlooked. (Cedeno v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No 2117).
[9] The applicant suggests that the letter in which the respondent informed the Court that he did not oppose the application for leave must not have been before it when the order dated October 10, 2002 was made. It is true that, had the said letter not been placed before the Court when it made its decision, the Court could reconsider the resulting order. (Canada (Minister of Citizenship and Immigration) v. Dhaliwal-Williams (1996), 116 F.T.R. 29, 34 Imm. L.R. (2nd) 47 (T.D.)).
[10] However, such are not the circumstances in which the order was made. Rule 397 does not empower a judge to re-examine the conclusion drawn from the evidence.
O R D E R
Therefore, this motion is dismissed.
"Pierre Blais"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3687-02
STYLE OF CAUSE: Harpal Benipal v. M.C.I.
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DATE: December 16, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MR. JUSTICE BLAIS
WRITTEN REPRESENTATIONS BY:
Mr. H.S. (Harry) MannFOR THE APPLICANT
Ms. Angela MarinosFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mann & SchinkFOR THE APPLICANT
Mississauga, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada