Date: 20000124
Docket: IMM-2571-99
BETWEEN:
LI XIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McGILLIS J.
[1] Counsel for the applicant has brought a motion in writing, under Rule 369 of the Federal Court Rules, 1998, for an extension of time to appeal the Order of Lafrenière P. dated November 25, 1999 and for an appeal of that order.
[2] On May 21, 1999, the applicant filed an application to review a decision of a visa officer refusing his application for permanent residence in Canada. The respondent filed a notice of appearance on May 27, 1999. The applicant's affidavit was served and filed on June 21, 1999, in conformity with Rule 306 of the Federal Court Rules, 1998. On July 21, 1999, the respondent served and filed the affidavit of the visa officer. However, the visa officer was not available for cross-examination within 20 days of the filing of his affidavit, as required by Rule 308. Counsel for the applicant cross-examined the visa officer on September 7, 1999 and received the transcript of the cross-examination on September 27, 1999, the very date on which the application record was due to be filed under Rule 309.
[3] On November 2, 1999, counsel for the applicant filed a motion under Rule 369 for an extension of time to conduct the cross-examination of the visa officer and to serve and file the application record. Since counsel for the applicant had appended the application record to his motion and had served it on the respondent, he also requested an order validating nunc pro tunc the service and filing of the application record. In support of the motion for an extension of time, counsel for the applicant tendered an affidavit dated November 1, 1999 from Monlee Ip, a secretary in his law firm. In that affidavit, Ms. Ip indicated, among other things, that Ms. Lam was on holidays for certain days between September 29 and October 16, 1999 and that she had four hearings scheduled between October 16 and 29, 1999. She further stated that Ms. Lam worked on the application record "whenever possible", but was only able to complete the application record on November 1, 1999. Ms. Lam was one of the counsel on the case.
[4] By Order dated November 25, 1999, Lafrenière P. dismissed the motion for an
extension of time. In his Order, he stated, in part, as follows:
| Based on the evidence before me, I am satisfied that an arguable case exists for setting aside the decision of the visa officer denying the Applicant"s application for permanent residence. In addition, the Applicant"s delay in conducting the cross-examination of the visa officer may have been excused. However, the Applicant has failed to provide a satisfactory explanation for the subsequent lengthy delay in filing his Application Record. |
| The reasons advanced for the delay between September 7, 1999 and November 2, 1999 were clearly not beyond the control of the Applicant or his counsel [see Chin v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 77 (T.D.)] The Applicant should have taken immediate steps to seek an extension of time when it became apparent that he would be unable to comply with the strict time requirements contained in the Rules. |
| I am mindful of the serious impact a negative decision on this motion will have on the Applicant"s application. However, in exercising my discretion, I cannot ignore the fact that the delay was caused by the procrastination of experienced counsel. |
[5] The Order of Lafrenière P. was not communicated to counsel for the applicant until November 29, 1999. Under Rule 51(2)(a), an appeal of a decision of a prothonotary must be "...served within 10 days after the day on which the order under appeal was made...". In the present case, the order was not brought to the attention of counsel for the applicant until four days after it was made. The motion to appeal the decision was filed within 10 days of that date. In the circumstances, I am satisfied that an extension of time to serve and file the motion should be granted.
[6] The motion to appeal the Order of Lafrenière P. was filed on December 9, 1999. In support of the motion, counsel for the applicant tendered the affidavit of Mary Lam, one of the counsel on the case. In her affidavit, Ms. Lam stated, among other things that, during the period of delay, there were "...issues concerning the working relationship between Mary Lam and Cecil Rotenberg the details of which ... neither counsel would like to make public at this time".
[7] The standard of review to be applied by a motions judge on the appeal of a discretionary order of a prothonotary was outlined in Canada v. Aqua-Gem Investments Ltd, [1993] 2 F.C. 425 (C.A.). In that decision, MacGuigan J.A., writing for the
majority, stated as follows, at pages 462 to 463:
| I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| (a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or |
| (b) they raise questions vital to the final issue of the case. |
| Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they arise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. |
[8] The discretionary Order of Lafrenière P. raises a question vital to the final issue of the case in that the inability of the applicant to serve and file an application record will necessarily result in the summary dismissal of the application. In accordance with
the principles in Canada v. Aqua-Gem Investments Ltd., I should therefore exercise my own discretion de novo.
[9] The test to be applied on a motion for an extension of time was succinctly summarized by Strayer J.A., writing for the Court, in Nelson v. Edmonton Institution, [1996] F.C.J. No. 1492, A-711-95, (November 18, 1996) (C.A.), at paragraph 4:
| The main considerations for determining whether an extension of time should be granted are well established in this Court ... and include the following: an intention, formulated within the time limit, to take proceedings; the existence of an arguable case; the cause and actual length of the delay; and whether there was prejudice caused by the delay. In the present case all of these elements should have been seen to favour the applicant. The fact that the application for judicial review was filed but not served within the time limit confirms a timely intention to proceed. The delay in serving counsel for the respondents was 11 days, hardly critical, and there was some explanation for the delay in instituting proceedings involving the applicant being in prison and there being a change of counsel. The respondents do not attempt to show prejudice and none appears to exist. It is also clear that the applicant has an arguable case, albeit that there may be debatable issues of fact and law which remain to be resolved. Therefore the relevant legal criteria all point to the grant of an extension of time. |
[10] In the present proceeding, the applicant clearly formulated an intention within the prescribed time limit to make his application and has always intended to pursue it. Furthermore, he has an arguable case to present on his application. The respondent has not alleged that she has suffered any prejudice by reason of the delay and indeed could not have made such an allegation due to the delay occasioned by the unavailability of her affiant for cross-examination. Needless to say, that delay cannot in any manner be attributed to the applicant.
[11] The sole factor remaining to be considered is the cause and the actual length of the delay. As indicated previously, the applicant cross-examined the affiant on September 7, 1999. Under Rule 309(1), the applicant's record was required to be filed "...within 20 days after completion of all parties' cross-examinations...", namely on September 27, 1999. However, the transcript of the cross-examination was not prepared or available to counsel for the applicant until that date. Accordingly, until at least September 27, 1999, no delay can be attributed to the applicant. The actual length of the delay was therefore from September 27, 1999 until November 1, 1999, the date of the filing of the motion for an extension of time. In attempting to justify the delay, counsel for the applicant has provided some explanation, indicating that professional difficulties arising between he and his associate Ms. Lam created the problem. Such an explanation taken in isolation would not normally be sufficient to excuse a delay. However, the explanation concerning the delay must be considered together with the other relevant criteria, all of which weigh heavily in favour of the applicant's request for an extension of time. Having considered all of the criteria outlined in Nelson v. Edmonton Institution in the context of the evidence in the record, I have concluded, in the exercise of my discretion, that it is in the interests of justice to grant an extension of time.
[12] The motion is granted. The applicant's application record is deemed to have been served and filed nunc pro tunc. The respondent shall serve and file her application record on or before February 14, 2000. The applicant shall serve and file a requisition for hearing, in conformity with Rule 314, on or before February 24, 2000.
| D. McGillis |
| ______________________________ |
| Judge |
Ottawa
January 24, 2000