Date: 20010207
Docket: 01-T-4
Neutral Citation: 2001 FCT 35
BETWEEN:
LESLEY BERKELEY
Applicant
-and-
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
As represented by THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] The Applicant seek an extension of time to bring an application for judicial review of the decision of the Canadian Human Rights Commission (the "Commission") dated June 26, 2000 dismissing the Applicant's complaint against the Immigration and Refugee Board of discriminating practice on the basis of race and/or national or ethnic origin contrary to s. 7 of the Canadian Human Rights Act. The Applicant allegedly became aware of the decision only around the beginning of September, 2000. On October 12, 2000, the Applicant's solicitor requested a copy of the decision which the Commission forwarded on November 29, 2000. The instant motion for an extension of time was filed on January 12, 2001.
[2] The Federal Court of Appeal in Grewal v. Minister of Employment and Immigration [1985] 2 F.C. 263 (C.A.) at 272 established the principles applicable to the grant of an extension. The Federal Court Trial Division has consistently interpreted the factors set out in Grewal as creating a two part test that must be satisfied in order for an extension of time to be granted: First, there must be a reasonable justification for the delay throughout the whole period of the delay and, second, the Applicant must have a reasonable chance of success in his case. The Applicant must satisfy both tests. (See Berlin v. M.E.I. (1994) 88 F.T.R 132 at 134 and Canada v. Singh (1997) 140 F.T.R. 102 at 105.
[3] In my view, the Applicant has not met the first test. The affidavit in support of his application is merely the affidavit of an assistant in the law offices of his solicitors. The affidavit is very thin and carries little weight. Her paragraph 4 reads as follows:
| 4. Mr. Berkeley advised me and I verily believe that he first became aware of the decision of the CHRC in or around the beginning of September, 2000 when he was advised of the decision by J.R. Richards, a staff lawyer at the African Canadian Legal Clinic, Mr. Berkeley's previous counsel. |
[4] Of course Rule 81(1) of the Federal Court Rules allows statements as to the deponent's belief on motions. However, Rule 81(2) stipulates that such affidavits made on belief carry an adverse inference from the failure of a party to provide evidence of persons with personal knowledge of material facts. The best evidence is an important factor in a motion for an extension of time and more so where the date when the Applicant first became aware of a decision is a key issue. In this instance, the best evidence would have been that of the Applicant himself. The second best evidence would have been that of staff lawyer, J.R. Richards who informed him.
[5] Moreover, there is no evidence in the Applicant's Motion Record demonstrating either due diligence in pursuing his application, or an intention to serve and file the application within the applicable time limit. And even if the evidence of the assistant was satisfactory, it does not cover the whole period.
[6] On October 12, 2000 the Applicant's solicitor requested a copy of the decision. Waiting for reasons, in itself, is simply not an acceptable justification for failure to file an application. See: Westinghouse Canada Inc. v. Canadian International Trade Tribunal (1989), 104 N.R. 191 (Fed. C.A.) at 191 wherein Mahoney J.A. state as follows (at p. 194):
| That is the rationale for the countless decisions that waiting for reasons, in itself, is simply not an acceptable excuse for failure to file a s.28 application in time, e.g. Kalaam v. M.M.I., [1976] 1 F.C. 112; 11 N.R. 462. |
[7] Furthermore, there is no justification whatsoever provided for the period from December 29, 2000 when the Commission forwarded a copy of the decision, and January 12, 2001 when the Applicant finally filed the instant application. Thus, it is not necessary to consider whether or not the Applicant has an arguable case.1
[8] Consequently, this application for an extension of time must be denied.
"J.E. Dubé"
J.F.C.C.
Toronto, Ontario
February 7, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: 01-T-4 |
| STYLE OF CAUSE: LESLEY BERKELEY |
Applicant
-and-
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA As represented by
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: MONDAY, FEBRUARY 5, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: DUBÉ J. |
DATED: WEDNESDAY, FEBRUARY 7, 2001
| APPEARANCES BY: Ms. Kanki Wignarajah |
| For the Applicant |
| Ms. Lara Speirs |
| For the Respondent |
| SOLICITORS OF RECORD: Kanki Wignarajah |
| 688 St. Clair Avenue West |
| Toronto, Ontario |
M6C 1B1
| Tel. No.: (416) 657-1465 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20010207
Docket: 01-T-4
BETWEEN:
| LESLEY BERKELEY |
Applicant
-and-
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA
As represented by THE MINISTER
OF CITIZENSHIP AND
IMMIGRATION
Respondent
| REASONS FOR ORDER |
__________________
1 Logan v. Canada (Canadian Human Rights Commission), (1996) 107 F.T.R. 172 at 174.