Date: 20000428
Docket: IMM-1172-00
Ottawa, Ontario, this 28th day of April 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
MARCO ANTONIO MATURANA NUNEZ
MARICEL LORENA MATURANA LUCERO
GLORIA BEATRIZ LUCERO VEGA
and PAULINA BEATRIZ MATURANA LUCERO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] On March 8, 2000, the applicants filed an application for leave and judicial review of the decision of the Convention Refugee Determination Division dated December 2, 1998 ("the Leave Application") dismissing their application for refugee status. Included with the Leave Application was an application for an extension of time for the filing of an application
for leave pursuant to subsection 82.1(5) of the Immigration Act, R.S.C. 1985 c. I-2. The respondent Minister filed her Notice of Appearance on March 15, 2000. The applicants" Record was filed on April 6, 2000.
[2] These proceedings were precipitated by the fact that on February 26, 2000, the applicants were served with a Direction to Report requiring them to report for deportation to Santiago, Chile on April 27, 2000. Notwithstanding the fact that counsel was retained on March 6, 2000, nothing was done with respect to an application for a stay of execution of the deportation order until April 18, 2000 when a Notice of Motion was filed seeking injunctive relief with respect to the deportation order. The respondent Minister filed her material in response to the Leave Application as well as the Motion on April 19, 2000. In her materials with respect to the Motion for a stay, the respondent argued that the Leave Application should be heard in advance of the application for a stay on the ground that the file was complete and that the judge hearing the motion had jurisdiction to hear the leave application. On April 25, 2000, the applicants filed their reply with respect to the Leave Application.
[3] When the application came on before me by telephone on April 27, 2000, counsel for the Respondent moved that the Leave Application and application for an extension of time be heard prior to the stay application. He argued that the stay, if granted, would initially only be effective until the application for an extension of time and the leave application were disposed of. Counsel made the point that in the interests of judicial economy, the latter applications should be heard first. If they failed, the application for a stay would be moot. If they succeeded, the question of a stay or the application of the statutory stay in subparagraph 49(1)(c)(i) would then arise. Counsel for the respondent Minister pointed out that the material filed by the respondent clearly indicated that she would be making such a request of the Court so the applicants could hardly be taken by surprise.
[4] Counsel for the applicants was understandably reluctant to proceed with the hearing of the Leave Application when he had come to court to deal with the Motion for a stay. However, he candidly admitted that he could not argue that he was prejudiced since he was ready to argue the merits.
[5] The Immigration Act (the "Act") contemplates that applications for leave will be dealt with expeditiously. Subsection 82.1(8) provides that:
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[6] If leave is granted, the Act requires that the application for judicial review be heard within a short interval of the date of the granting of leave:
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[7] There is clearly a legislative policy to expedite the resolution of applications for leave. It was to this policy which counsel for the respondent appealed, an appeal which was successful. After giving counsel for the applicants time to review his material, I heard argument on the application for an extension of time for the filing of the application for judicial review.
[8] The facts relevant to that application are the following. The applicants arrived in Canada on December 6, 1995. They made their application for refugee status in February 1996. The Convention Refugee Determination Division ("CRDD") heard their application on March 2, 1998 and May 20, 1998. The CRDD"s decision is dated November 16, 1998 but the Notice of Decision is dated December 2, 1998.
[9] The applicants were represented by counsel at their CRDD hearings. The applicant Marco Antonio Maturana Nunez deposed in his affidavit, sworn on April 6, 2000, that in June or July 1998, the applicants changed their address and notified their counsel of the change. The applicants changed address again in September 1999 at which time Mr. Nunez telephoned counsel to advise him of this most recent move. Mr. Nunez deposes that counsel then advised him for the first time that their application for refugee status had been refused. Since the Notice of decision was dated December 2, 1998, this late notification calls for some explanation. The explanation offered by Mr. Nunez in his affidavit was:
| " It seems that [counsel] had written down the wrong apartment number [after the June or July 1998 telephone advice of change of address] and passed on that erroneous information to the Immigration and Refugee Board. For this reason the applicants believe their decision was forwarded to the wrong address." |
[10] In response to the respondent"s allegation that the applicants had not seen fit to inquire about the status of their application for a period in excess of 12 months (July 1998 to September 1999), the applicants sought and obtained leave to file a further affidavit of Marco Nunez dated April 25, 2000, the material paragraphs of which are reproduced below:
| 2. I want to emphasize that at all times we took our claims to Convention refugee status very seriously. [Counsel] was representing myself and my family in respect to our immigration matters. [Counsel"s wife], who shared office space with [Counsel] was representing my wife and I in respect to the family law case surrounding my daughter Paulina. After Paulina had attempted suicide for the first time the Catholic Children"s Aid Society took steps to take custody of Paulina and we hired [counsel"s wife] to represent us in this matter. |
| 3. From June or July of 1998 when we initially told [counsel] of the change of our address, we regularly met with [counsel"s wife] in regards to the family law case of Paulina. [Counsel] frequently acted as an interpreter for us as his wife was unable to speak Spanish. During those months, I regularly asked [counsel] about the status of our claims and he merely told me that he would advise us as soon as he received any decision from the Refugee Division. |
| 4. After November of 1998 until September of 1999 we continued to see [counsel"s wife] in regards to the family case and as before, [counsel] regularly acted as our interpreter. Although we saw [counsel] approximately once every two months during this period, incredibly he never told us that our claims had been rejected. Also, we never asked him about our immigration matters as we assumed that he would advise us of any developments. |
| 5. When we eventually learned that our claims had been rejected and saw [counsel] on September 8, 1999, he advised us that when we didn"t bring up the negative decision during the course of our personal interviews with his wife, he assumed that we were not interested in pursuing the matter further. He offered no other explanation for his failure to take it upon himself to tell us about the negative decision. |
[11] The affidavit of April 6, 2000 went on to recite that after learning of the refusal of their refugee application, the applicants attended upon counsel on September 8 to discuss their options. Counsel advised them that their only option was to file an application for an exemption, on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Act, from the requirement that applications for landing must be made from outside Canada ( H & C application). Counsel was paid a fee of $1,500 to commence such an application. One week later, the applicants attended once more at counsel"s office when counsel advised that he felt he could no longer act for them. He indicated that he would refer them to another immigration lawyer but he failed to do so.
[12] One week later, the applicants contacted representatives of a social agency where, following another referral, they were given the names of other "immigration practitioners". In November 1999, they were interviewed by an immigration consultant who advised he could do nothing for them as they were already subject to a deportation order. In the same month, they were referred to another immigration consultant to whom they paid $1,000 to initiate an H & C application. He asked them to obtain further information from Chile before he proceeded with their application. On February 26, 2000 [the date on which the applicants received the Direction to Report] this consultant advised the applicants that he could do nothing for them. On February 26, 2000, the applicants were referred to their present counsel who advised them for the first time that they could bring an application for an extension of time for filing an application for leave and judicial review. Counsel was retained on March 6, 2000 and the application for leave, extension of time and judicial review was launched on March 7, 2000. As noted above, the Motion for a stay of the deportation order was signed on April 17, 2000.
[13] The applicants defend their failure to commence judicial review proceedings by accusing their former counsel of serious professional misconduct. They counter the respondent"s allegation that they did not pursue their rights in a timely fashion by asking why they would not pursue those rights when the outcome was a matter of vital significance to them. The respondent takes the position that the affidavit evidence raises as many questions as it answers. While questioning the applicants" version of events with respect to their counsel, the Respondent also notes that there was no particular diligence shown once the applicants had notice of the result of their application for refugee status.
[14] The power to grant an extension of time for the filing of an application for leave and judicial review is found at subsection 82.1(5) of the Act:
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[15] The requirement for special reasons was described as follows in Semenduev v. Canada [1997] F.C.J. 70:
| ...the case law requires amongst other things that the Applicant establish that he had, throughout the period with respect to which the extension is being sought the intention to challenge, in the legal sense, the decision in issue, but that he was prevented from doing so by reason of factors which were beyond his control. |
[16] The failure of a solicitor to take the proper steps on behalf of the client was found to be special reasons in Panta v. Canada [1993] F.C.J. No. 898 but in that case, the solicitor filed an affidavit admitting her role in the delay. Conspicuously, that is not the case here.
[17] At the conclusion of the hearing of this matter by telephone on April 26, 2000, I rendered the following decision:
| In this application for an extension of time, I have to deal with two improbable choices. The first is that a barrister, an officer of the Court, failed in his duty to advise his clients of the outcome of an application which is or could be a matter of life and death to them. |
| The other alternative is that the applicants knew of the failure of their application but were content to do nothing about it until confronted with a notice to report. |
| On balance, I am not inclined to accept what has been said about counsel for the following reasons: |
| -the applicants have known of his breach since September 29 and have taken no steps against him; |
| - the applicants have not put evidence from him before the Court either directly or by means of someone independent of them; |
| -counsel"s withdrawal is capable of being construed against the applicants in the sense of his declining to pursue a course he was unable to pursue. |
| I do not know why the applicants would allow this situation to develop as they did from September 1999 to April 2000 but this Court sees many such cases in applications such as this. |
| I find no special circumstances for granting an extension of time for applying for leave. |
| The application for an extension of time is dismissed. |
| The leave application is out of time and is therefore dismissed. |
| The stay application is moot and is dismissed. |
[18] Having had the opportunity to consider the matter more fully than was the case in the course of an emergency telephone hearing (which need not have been the case, I might add, since counsel was retained on March 6, 2000), I wish to add the following comments.
[19] I am not prepared to accept an allegation of serious professional misconduct against a member of the bar and an officer of this court without having the member"s explanation for the conduct in question or evidence that the matter has been referred to the governing body for investigation. In this case, there was ample opportunity to do one or the other but neither was done. The failure to do so is inconsistent with the gravity of the allegations made. This is not a question of being solicitous of lawyers" interests at the expense of their clients. It is a question of recognizing that allegations of professional negligence are easily made and, if accepted, generally result in the relief sought being granted. The proof offered in support of such an allegation should be commensurate with the serious nature of the consequences for all concerned.
ORDER
The application for an extension of time for the filing of an application for leave and judicial review is dismissed.
The application for leave and judicial review is out of time and is therefore dismissed.
The application for a stay is moot and is therefore dismissed.
"J.D. Denis Pelletier"
Judge