Date: 20030204
Docket: IMM-5548-02
Neutral citation: 2003 FCT 125
BETWEEN:
ALAA-ALDIN KAZOUN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATON
Respondent
[1] These reasons arise out of a request for a time extension within which to file the Applicant's record.
[2] Counsel for the Crown properly questions a weakness in the material filed supporting the extension, being the manner in which the whole of the delay is accounted for, a requirement set out in Grewal v Canada (MEI), [1985] 2 F.C. 263 (FCA):
| Among the matters to be taken into account in resolving the first of these questions is whether the applicant intended within the 10-day period to bring the application and had that intention continuously thereafter. Any abandonment of that intention, any laxity or failure of the applicant to pursue it as diligently as could reasonably be expected of him could but militate strongly against his case for an extension. The length of the period for which an extension is required and whether any and what prejudice to an opposing party will result from an extension being granted are also relevant. But, in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not fettered.
(p. 227 - 278) |
The requirement here is that reasonable diligence be exercised to meet time requirements, the absence of which is a strong force against a case for extension. This concept is explored by Mr Justice Marceau at page 280 and following and particular at page 282, where he also makes the point that "... a strong case may counterbalance a less satisfactory justification for the delay". Thus there may be a balancing of the elements to be satisfied in order to obtain an extension of time.
[3] In Lai Ping Suen v Canada (MCI) (1996), 36 Imm. L.R. (2d) 39, Mr Justice Muldoon dealt with a situation in which there was virtually no reasonable excuse for missing a 30-day limitation period. There, a so-called immigration consultant was unaware of the limitation period, but rather frittered away time in an effort to meet with bureaucrats, all in the face of immigration tribunal ruling. Mr Justice Muldoon noted that:
| Judicial review proceedings in immigration matters are summary proceedings to be carried on with despatch according to an abundance of jurisprudence. The Court leans against extending defaulted time limits, unless a good account can be given for every day of the delay. (p. 43) |
In the case of Lai Ping Suen there was nothing to balance and thus the application for a time extension "crumbles under its own dead weight.", the motion for time extension being dismissed.
[4] In the present instance there is something to balance, for the Applicant, in its own affidavit, sets out that:
| 15. I have a great respect for the decision of the Board but I have always exhibited disagreement with it. Immediately following the decision I filed the within application for Judicial Review. Any delay in filing subsequent documents necessary for the prosecution of my application is due to the time I need to complete processing my application for coverage from Legal Aid. My Legal Aid coverage to file the Record of the Applicant was not granted until January 3, 2003, after the expiry of the deadline. |
The explanation for the delay would be much more forceful if it set out at least when the request for legal aid was made. The affidavit might have gone on to exhibit any correspondence with the legal aid authorities.
[5] I accept that the Applicant has reasonably demonstrated a continuing intention to pursue the application and that the application has some merit. A time extension required is not such that to grant it would necessarily prejudice the Respondent and indeed, the Respondent makes no such allegation. Thus the weak link in the test for a time extension, that set out by the Federal Court of Appeal in Canada (AG) v. Hennelly, (1999) 244 N.R. 399 at 399 - 400 is balanced to some degree: here I have in mind the weakness in the explanation for the delay. However I must also keep in mind that the Court of Appeal in Hennelly did not in any way detract from the overall objective set out in Grewal, that justice must be done between parties.
[6] In the present instance, as I have indicated, there is a continuing intention to pursue an application which has merit and that the time extension would not prejudice the Respondent. These points are made in a substantial way. In this instance they will carry the less satisfactory explanation of the delay. However, given that the Respondent was perfectly justified in questioning the remedy of a time extension, costs will be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
4 February 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: IMM-5548-02
STYLE OF CAUSE: Alaa-Aldin Kazoun v. The Minister of Citizenship and Immigration
REASONS FOR ORDER OF: Hargrave P.
DATED: 4 February 2003
WRITTEN REPRESENTATIONS BY:
Norain A Mohamed FOR APPLICANT
Brad Hardstaff FOR RESPONDENT
SOLICITORS ON THE RECORD:
Norain A Mohamed FOR APPLICANT
Barrister & Solicitor
Edmonton, Alberta
Morris A Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta