Federal Court Decisions

     IMM-2120-96

Between:

     HENRY OSARO EWERE,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     The applicant filed his application for leave and judicial review on June 24, 1996. He was therein complaining about a decision of the I.R.B.'s Appeal Division dated March, 1996, and received by the appellant on or about June 10, 1996, wherein the Appeal Division determined that the "removal order made the 22nd day of November, 1994 is in accordance with the law and [he] has failed to show that having regard to all of the circumstances of the case [he] should not be removed from Canada". It was filed by a different lawyer from her who is now his counsel. The change of lawyers is recorded on this file as of July 12, 1996.

     In the present motion, filed March 17, 1997, the applicant is seeking a third extension of time in which to perfect his application for leave, having failed to comply with the order of Richard, J., dated January 3, 1997, extending the time for filing and serving the applicant's application record to January 31, 1997, and the order of Gibson, J., dated March 3, 1997 extending the time for filing and serving the applicant's application record to March 14, 1997.

     What did Mr. Justice Mahoney write in Espinoza v. M.E.I., (1993) 142 N.R. 158 at p. 159? He wrote:

The policy of the Immigration Act, R.S.C. 1985, Chap. I-2 and Federal Court Immigration Rules as to the expeditious processing of leave applications is transparently clear.

That case concerned the lawyer standing by not preserving his client's status while waiting for his fees to be secured by legal aid. Mahoney, J.A. characterized that conduct as "dilatory" and asserted that such conduct "cannot be permitted to defeat the policy of the Act and Rules."

     As to the first application for an extension of time, granted by Mr. Justice Richard the applicant's counsel mentioned her difficulty in her written submissions to that learned judge:

The applicant's solicitor * * * was unable to file the Record in this matter by December 9 [1996] the date on which it was to be filed in accordance with the * * * Rules, because of her father's recent death.

The applicant's lawyer deserved the Court's sympathy and Mr. Justice Richard evinced it by according time until January 31,1997, close to the date and time she suggested. Paragraphs 5, 6 and 10 of Harvey Savage's affidavit filed on December 10, 1996, say it all. However, the applicant's counsel is not the first or only lawyer to suffer the loss of a dear, close family member, during a time of high demands and commitments for performing professional services, as this judge has reason to know. One has to carry on even 'though one's heart is breaking, but, of course not all can respond to the tragedy with the same strength, at any or all times. In such circumstances a lawyer's colleagues, if any, ought to be able to help.

     The applicant's record was however not filed by January 31, 1997 because as stated in paragraph 3 of his lawyer's written submissions, filed February 19, 1997:

3. The applicant's solicitor, * * *, was unable to file the record by the date on which it was to be filed in accordance with the order [by Richard, J.] extending time, as she received an order to file another record, in a short time, at the same time as this record had to be prepared. Because of deadlines she had to meet for other, longtime clients and because of the amount of time required to complete this matter, including the allegation of the incompetency of the applicant's former counsel and the unexpected requirement to file another record virtually at the same time, she was unable to meet the extended deadline for this case.

- Affidavit of Barbara Jackman, paras. 8, 9, 10

     It begins to seem as if the applicant's unfortunate solicitor and counsel is disorganized either because her intake of clients exceeds her capacities, or she leaves everything (this matter, at least) to the last minute.

     The foregoing notwithstanding, Mr. Justice Gibson accorded an extension of time to March 14, 1997. As in the first motion for extension of time, the respondent's counsel opposed the request for the second extension of time to file the applicant's application record herein.

     Once again, the applicant's lawyer missed the [new] deadline, and moved on March 17, 1997 for an order further extending the time, supported again by the affidavit of her professional associate, Ms. Jackman. After referring to the continuing difficulties the applicant's counsel was having in her personal life which affected her practice, the deponent continues:

5. * * * The applicant then applied for and was given an extension to March 14, 1997 to file his record but Ms. [counsel] again was unable to meet this deadline, necessitating this further motion.

6. The record in this matter is now completed and served, as of Monday, March 17, 1997, one day later than ordered by this Court.

7. Ms. [counsel] worked on the Memorandum of Argument on Thursday, March 13 and Friday, March 14, 1997. However she was delayed in arriving at her office by several hours because of the weather conditions on the 14th; there was a severe snow and ice storm that day. All that remained to be done by late in the afternoon of the 14th was to insert into the argument the references to the evidence in the record but she was simply unable to finish in time for the record to be both served and filed.

(emphasis for last-minute efforts)

8. Ms. [counsel] informs me she is extremely embarrassed and distressed to have to ask the Court's indulgence for a third time in the same matter. However, having now completed the Memorandum and fully confirmed her own legal opinion as to the strength of the applicant's case and the terrible injustice that would be done to him were his case not to be considered by the Court, she can only beg the Court's indulgence one last time. The record is now served upon the respondent, along with this motion.

9. Ms. [counsel] would also like to respond to a point raised by the respondent in two previous objections to the two previous orders granted. While she has taken every reasonable step possible to avoid overburdening herself with new matters over these past several months, it is also almost impossible for her to ask any of her colleagues to take over existing matters for her. This is due to the fact that Ms. [counsel's] law practice is her sole source of income and if she does not maintain at least a minimal inflow of fees, she would simply be unable to meet her financial obligations at home or at the office. She is fully aware that it might have been advisable for her to take at least a month off at this time, but she was simply unable to do so for financial reasons.

     It is a pity that all of the applicant's counsel's colleagues are so busy that not one of them was able to help her without, apparently, demanding a share of her fees - not even on easy payment terms, it seems.

     According to the deponent, the applicant's counsel wished as well to have the deponent recite and reiterate some of the "strong merits of this case", thus in part:

In Ms. [counsel's] opinion, the Board made a perversely unreasonable decision. It places some emphasis on the need, as expressed in s.3 of the Immigration Act, to protect Canada's "safety" and "good order" as well as listing as the first factor to be considered, the seriousness of the crime committed. However, the Board then finds against a person who committed first, in a very brief period, white-collar crimes for which he received four concurrent 15-month sentences and, then, about two years later assaulted and threatened his wife (admittedly wrongly) in a situation where the evidence was clear that, and the wife admitted at the hearing that, he was provoked by her having appropriated large sums of money from him while he was in custody, and then kept putting him off when he asked for its return. For these offences he received a sentence of one day, plus the 47 days pre-trial time he had served, being kept in custody only because he was a parolee at the time.

On this evidence, apparently, according to the Board, the applicant is then someone who committed such serious crimes and is such a threat to the safety of Canada that his deportation order ought not to be stayed; however, nowhere do the reasons state this outright and nowhere do they say why the Board finds this to be so. Similarly, the Board makes no finding whatsoever regarding the applicant's potential (or otherwise) for rehabilitation and thus no finding whatsoever on the likelihood the applicant will re-offend.

Finally the applicant's counsel, via the deponent, makes remarks about the applicant's counsel at "the hearing" being "so incompetent" that this Court declines to recite them here even on this privileged occasion.

     In written submissions, the respondent's counsel states:

2.      The respondent submits that orders of the Court should be taken seriously by officers of the Court. In the respondent's view, it is evident from the applicant's latest request for yet another indulgence, that a high priority has not been given to the orders of this Court.

3.      The respondent wishes to make one further observation. The affidavit filed in support of the applicant's motion states at paragraph 7 that, "Ms. [applicant's counsel] worked on the Memorandum of Argument on Thursday, March 13 and Friday March 14, 1997" (emphasis added). The Court is then told that inclement weather delayed Ms. [applicant's counsel's] arrival at her office on March 14, 1997 so that she was unable to finish the application record in time to be served and filed that day. The respondent submits that these facts recall those in Dhillon v. M.C.I. and that the comments of Giles, A.S.P. in dismissing the request for an extension of time in that case are apt:

"The deliberate planning to do nothing with the applicant's file until the penultimate business day is, in my view, testing fate. Where, as has happened here, the calculation was wrong or where other events might intervene the client may loose [sic]. I question the miscalculation in the circumstances outlined here excuses the delay."

4.      The respondent respectfully submits that taking into account the history and the circumstances surrounding the numerous delays in bringing this matter forward, this latest request for an extension of time should properly be dismissed.

     There is much strength of law and intellect in the respondent's counsel's submissions, now, as there was in regard to the last previous application for an extension of time by the counsel for the applicant.

     One may observe that times are hard for lawyers especially sole practitioners, as the applicant's counsel seems to be, for all her "practising association" appears to be worth to her. The Court does not wish to be hard on her, but she has been hard on the respondent, the immigration law and the Court with her lame excuses.

     She personally ought to pay the respondent's costs, which will be fixed at $450.00. The Court is not concerned from what lawful source she gets the money, whether from her own resources or by loan from her "associates" or friends, hopefully on easy terms. If she cannot pay within a reasonable time the respondent will have a judgment against her in the principal amount of $450.00. The Court is not inclined to let the matter pass as if it were just business as usual, but it is much better this way than to dismiss her motion and expose her to the risk of being sued for professional negligence, or again, better than even to contemplate the prospect of prosecution for contempt of Court. This is a wake-up call to the applicant's counsel.

     The applicant's counsel's motion will be allowed and the application record which she has now already served may be filed and will be deemed regular and its service and filing will be homologated, with costs however in the respondent's favour in the amount of $450.00, which may be asserted, or not, as the respondent wishes, of course.

    

Judge

Ottawa, Ontario

April 2, 1997