IMM-1804-97
B E T W E E N:
MAJID ALAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The motion before me seeks an extension of time within which to file the Applicant's Record. The Application for Leave and for Judicial Review was filed showing the applicant acting in person but his address was care of a law firm and the back of the application shows only the law firm and a member thereof.
The applicant did not file his record on time and it is quite apparent that the principle reason was that he was waiting for a grant of legal aid and that when he did not get it, was unable to raise funds and find a lawyer willing to represent him in the time available.
There have been numerous cases which have decided the fact that an applicant has been waiting for legal aid does not excuse delay except in special circumstances. A prompt application for legal aid and diligent follow-up may in certain circumstances excuse delay. The applicant here found out on April 21st, 1997 that his CRDD decision was adverse. His then lawyer did not tell him to make an application for legal aid until April 28th, 1997. The legal aid then being sought was initially legal aid to have an opinion prepared to attempt to obtain further legal aid to file a record. The applicant attended to apply for legal aid on May 1st, 1997 and was granted initial legal aid on May 16th, 1997. Apparently Legal Aid has admitted it was tardy in granting the initial legal aid; however, it was not until May 23rd, 1997 that the necessary opinion letter to seek further legal aid was sent (the Application for Leave and for Judicial Review was filed on May 6th, 1997 without waiting for Legal Aid's "approval").
The refusal of further legal aid was communicated to the lawyer who was unable to advise the applicant because the applicant's telephone was disconnected during a move. On June 2nd, 1997 the applicant was informed. On June 3rd, 1997 he decided he could not afford the lawyer then acting and contacted his present lawyer getting an appointment on June 4th but not "retaining" the lawyer until June 5th, 1997. The only possible different feature of this case from those where an extension has been refused was that here in addition to the legal aid delay, there was a delay by the lawyer acting for the applicant.
I note that neither lawyer was "solicitor of record" because neither signed the documents filed. In my view, not being solicitor of record does not excuse a lawyer from leaving a client in the lurch.
In the ordinary way, the delays of the lawyer are the delays of the client and I believe this is so even if the lawyer is not of record. However, delays by a lawyer are not delays to be anticipated when the client takes the risk of waiting for legal aid. He will not do so in the ordinary way without anticipating that the legal aid will be sought with despatch. I therefore conclude that the delay might be excusable. I note also that no evidence has been supplied in support of the proposition that an arguable case for leave exists. The motion will therefore be dismissed but because there is evidence to the effect that a case exists, although what it is is not revealed, I will dismiss without prejudice.
ORDER
The motion for an extension of time to file the Applicant's Record is dismissed without prejudice to the applicant's right to bring a further motion for an extension of time on better evidence on or before the 15th of September, 1997.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
August 25, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
Court No.: IMM-1804-97
STYLE OF CAUSE: MAJID ALAM
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: AUGUST 25, 1997
SOLICITORS OF RECORD:
Mr. Michael Sterlin
Barrister and Solicitor
69 Elm Street
Toronto, Ontario
M5G 1H2
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1804-97
Between:
MAJID ALAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER