SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
and
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on April 11, 2007.
REASONS FOR ORDER BY: SHARLOW J.A.
CONCURRED IN BY: RICHARD C.J.
PELLETIER J.A.
Docket: A-23-07
Citation: 2007 FCA 144
CORAM: RICHARD C.J.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
KAMRAN MOGHBEL
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] Mr. Kamran Moghbel is the subject of an order dated February 24, 1997 (Court File A-245-94) made under what is now section 40 of the Federal Courts Act. It prohibits him from commencing and continuing any proceeding in the Federal Court of Appeal without leave.
[2] Mr. Moghbel is also the subject of a 1993 order made under section 40 in relation to the Federal Court. On October 20, 2006, a Federal Court judge directed that despite the 1993 order, Mr. Moghbel would be permitted to seek an extension of time for commencing an application in the Federal Court for judicial review of a 1994 decision of the Canadian Human Rights Commission. Mr. Moghbel's motion to the Federal Court for an extension of time was denied on December 15, 2006 (2006 FC 1499).
[3] On January 15, 2007, Mr. Moghbel submitted to this Court a notice of appeal of the decision denying the extension of time. The Registry Officer, not being aware of the section 40 order of February 24, 1997 in relation to the Federal Court of Appeal, accepted the notice of appeal for filing. He should not have done so. However, since he had done so, an order was made requiring Mr. Moghbel to show cause why his notice of appeal should not be removed from the court file and his filing fee returned to him. He was given an opportunity to seek, at the same time, leave to commence or continue the appeal.
[4] Mr. Moghbel has now filed a notice of motion which I will take as a motion that his notice of appeal not be removed from the court file, and that his appeal be allowed to continue. The respondent has not filed a response. The motion should be granted only if Mr. Moghbel establishes that the appeal is not an abuse of process and that there are reasonable grounds for the appeal (see subsection 40(4) of the Federal Courts Act).
[5] I am satisfied that the appeal is not an abuse of process. However, for the following reasons, I am not satisfied that there are reasonable grounds for the appeal.
[6] The decision sought to be appealed is a decision of the Federal Court denying an extension of time to commence an application for judicial review. That is a discretionary decision. It will not be reversed on appeal in the absence of an error of law or failure to give sufficient weight to all relevant considerations.
[7] The leading case on the question of granting an extension of time to commence a proceeding is Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (C.A.). That case establishes that, in considering an application for an extension of time, the relevant factors may include any or all of the following: (a) the merits of the application, (b) whether the applicant has had a continuing intention to bring the application, (c) the reason for the delay, and (d) whether the responding party has suffered any prejudice because of the delay.
[8] The decision of the Commission that Mr. Moghbel seeks to have reviewed by the Federal Court is dated December 19, 1994. Mr. Moghbel says that he received notice of the decision on January 19, 1995, one day outside the normal 30 day time limit for commencing an application for judicial review. His application for an extension of time to commence the application was filed in October, 2006.
[9] The extension of time was denied primarily because the judge concluded that Mr. Moghbel had not offered a satisfactory explanation for the delay of almost 12 years. Given the extraordinary length of the delay in this case, that conclusion by itself might have justified denying the motion for an extension of time. However, the judge also said that the respondent would be unduly prejudiced because of the length of the delay, and that he was not persuaded that the application would have a reasonable chance of success.
[10] The conclusion of the judge that Mr. Moghbel had not offered a satisfactory explanation for the 12 year delay is well supported by the evidence. The record discloses no reasonable explanation.
[11] Mr. Moghbel argues that his application for judicial review is based on information of which he became aware only in 2006. That argument is unsubstantiated by the material submitted by Mr. Moghbel in support of his motion. I note in particular that Mr. Moghbel refers to Canada (Human Rights Commission) v. Canada Airlines International Ltd., [2006] 1 S.C.R. 3, which he says is new information that supports his application that he could not have known about before 2006. However, a new development in the jurisprudence generally is not considered to be new information that would justify a late application for judicial review.
[12] Mr. Moghbel argues that there was no evidence that the respondent would be prejudiced by the 12 year delay. It appears that the respondent submitted in argument that a 12 year delay was prejudicial because the individuals involved might not be available, or because their memories of the events would have decreased over time. It is open to a judge to take judicial notice of the normal consequences of delay, and to accept that a 12 year delay is apt to cause evidentiary problems of the kind referred to by the respondent in its submissions.
[13] Mr. Moghbel argues on a number of grounds that the judge did not give sufficient weight to a number of relevant factors. He relies on the October, 2006 direction that he says indicates that a different Federal Court judge had found some merit in his application. He submits that it was not open to the judge considering his application for an extension of time to reach the opposite conclusion. This argument is wrong in law. The judge considering Mr. Moghbel’s application for an extension of time was entitled to reach his own conclusions on the relevant Grewal factors.
[14] Mr. Moghbel argues that the judge did not consider the merits of his argument that the Commission had made its decision without regard to the material before it, or his argument that he had established his entitlement to an order in the nature of mandamus. In the material in support of his motion for an extension of time, Mr. Moghbel recited at great length his reasons for challenging the decision of the Commission, but the record discloses no basis for concluding that the judge failed to read or understand those submissions.
[15] For these reasons, I would dismiss Mr. Moghbel’s motion without costs and order the notice of appeal to be removed from the Court file and returned to the appellant with the filing fee.
“I agree
J. Richard C.J.”
“I agree
J.D. Denis Pelletier J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-23-07
STYLE OF CAUSE: KAMRAN MOGHBEL v.
ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
WRITTEN REPRESENTATIONS BY:
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ON HIS OWN BEHALF
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Pierrefonds, Quebec
John H. Sims, Q.C. Deputy Attorney General of Canada |
ON HIS OWN BEHALF
FOR THE RESPONDENT
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