Date: 20000110
Docket: IMM-4701-99
BETWEEN:
EMIL NOVOTNY, DARINA JACHYMOVA,
LUKAS JACHYM,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] By a motion in writing counsel for Respondent, having misread the calendar, seeks an extension of time within which to serve and file a memorandum of argument.
[2] The test for an extension of time, as set out in Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) is well known. Grewal, as summed up by Mr. Justice Strayer, as he then was, in Beilin v. Minister of Employment and Immigration (1995), 88 F.T.R. 132 at 134, stands for the proposition that "as the condition for obtaining such an extension of time an applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case...".
[3] While the elements required by Grewal in seeking an extension of time are, as I say, well known, and indeed Grewal is referred to in the Respondent"s material, too often counsel do not take seriously the necessity for clearly establishing, in their material in support of the motion for a time extension, that there is an arguable case.
[4] The factors to consider in an application for an extension are, to a great degree, open-ended: see for example Noel & Lewis Holdings Ltd. and Warky v. Canada (1986), 5 F.T.R. 166 at pages 168 and 169 and Karon Resources Inc. v. Minister of National Revenue (1994), 71 F.T.R. 232 at 235-236. There are three additional factors which come into play in this instance. First, there is the underlying consideration of doing justice between the parties (Grewal, supra, at 110). Second, a compelling explanation for delay may result in a time extension where the arguable case is weak, and vice versa (Grewal, supra, at 116). Third, there must be material before the Court upon which the Court can be satisfied both as to an explanation for the delay and that the case is an arguable one (Consumers" Association of Canada v. Ontario Hydro [No. 2] [1974] F.C. 460 (F.C.A.) at 463, as referred to in Grewal, supra, at 110).
[5] In the present instance at issue are delay, whether there is an arguable case and prejudice to both Applicants and Respondent. The delay before the Respondent attempted to file the memorandum of argument was minimal and, as I have noted, it was the result of a misreading of a calendar. This was an unfortunate oversight, but in this instance it is not fatal. Here I would acknowledge that counsel for the Applicants pleads the monetary hardship and prejudice to his clients as a result of the filing oversight: that is unfortunate, but it can always be rectified by an award of costs.
[6] What is fatal to the Respondent"s motion is that there is nothing, beyond a bare assertion that "The Respondent has an arguable case." by which I may determine whether the case is in fact arguable. As Chief Justice Jackett said in Consumers" Association of Canada (supra) at page 463, an extension of time depends upon the Court having before it material from which it can satisfy itself that there is an arguable case for setting aside the order or decision in question. In this instance there is no material: a bald assertion of an arguable case amounts to nothing. As Associate Senior Prothonotary Giles points out in Valyenegro v. Canada (1995) 88 F.T.R. 196, there can be no prejudice where a party does not have a case:
| With regard to the prejudice to the applicant, I think it may be assumed that the applicant will be prejudiced if he is denied the right to put forward his case. If, however, the applicant does not have a case, he cannot be prejudiced if an extension of time is denied. Here the applicant has tendered no evidence of an arguable case. There is therefore, no evidence of the existence of an arguable case which he is being denied the right to put forward. There is therefore no evidence of any prejudice to the applicant. [page 201] |
This leads back to the concept of the underlying consideration of doing justice between the parties, a factor in Grewal. While the result, a denial of the time extension, may be unfortunate, there is no injustice where a party, here the Respondent, fails to put forward an arugable case.
ORDER:
| The motion for an extension of time within which to file the memorandum of argument is denied. Costs of this motion to the Applicants, forthwith, in the amount of $450.00. |
(Sgd.) "John A. Hargrave"
Prothonotary
January 10, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: IMM-4701-99 |
| STYLE OF CAUSE: EMIL NOVOTNY, DARINA JACHYMOVA, LUKAS JACHYM |
v.
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
| DATED: January 10, 2000 |
SOLICITORS OF RECORD:
Mr. Richard Hendery
Barrister & Solicitor
| Vancouver, BC for the Applicants |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Respondent |