Date: 19980309
Docket: IMM-2459-97
BETWEEN:
SAIDA HAMELIN & SON
GABÉ HOYLE
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] The adult Applicant herein is not represented by a lawyer and failed to file her record within the 30 days allowed by the Rules. She applied for an extension of time, which was opposed by counsel for the Minister on the grounds that she had not accounted for all of the delay, namely, that part between July 7th and 29th, 1997, during which period she apparently did nothing.
[2] Time was extended and the Applicant's Record was served on September 25th, 1997. The solicitor having carriage of the file was on vacation at that time. He returned in mid-October and failed to note that the Respondent's Memorandum of Argument had not been served or filed. I note that the order extending time was granted on September 5th, 1997. It was therefore possible that the Applicant's Record might be served at any time after that date, and the Respondent's submissions might have been due while the Respondent's lawyer was on holiday. No submissions have been made excusing the failure to make arrangements for some other lawyer in the Department to cover.
[3] On his return from holiday, the evidence is that the Respondent's lawyer failed to note that a response was coming due. The Registry apparently telephoned on or about January 15h, 1998 and left a voice mail message (answering machine ?) at that time the Respondent's lawyer was on assignment in Vancouver. It is implied that nothing was done about the message. About four weeks later, the lawyer with carriage returned to Toronto and shortly thereafter discovered that the Respondent's Memorandum of Argument had never been filed. It is said, that he then acted quickly to file this motion for an extension. The file indicates that one week later the supporting affidavit was sworn. It then took five days to be delivered by hand to the Registry.
[4] The law requires that before time can be extended all of the delays must be excused. They are not even explained. No attempt has been made to explain why no one covered while the Respondent's lawyer was on holiday nor while when he was in Vancouver. No opportunity has been given to explain why it took so long to hand deliver from 130 King Street West to the local Registry. I take notice of the fact that the two buildings are within sight of each other, however, that is of no advantage while the Rules fail to permit filing by heliograph.
[5] I question also whether the Respondent has shown that an arguable case exists. In the affidavit filed in support of this motion it is stated; "As demonstrated by Exhibit "A" herein, the Respondent has a strong case on the merits".
[6] Exhibit "A" is a copy of the Respondent's Memorandum of Argument. That is the document which should have been filed in proper time and cannot now be filed without leave. I question the propriety of letting the memorandum in as an exhibit when it cannot be filed in its own right.
[7] The delays not having been excused, I have no alternative but to dismiss the motion for an extension of time.
ORDER
Motion dismissed.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
March 9, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2459-97
STYLE OF CAUSE: SAIDA HAMELIN & SON
GABÉ HOYLE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: MARCH 9, 1998
SOLICITORS OF RECORD:
Ms. Saida Hamelin
Apt. 203
1214 Riverside Drive
Timmins, Ontario
P4R 1A4
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980309
Docket: IMM-2459-97
Between:
SAIDA HAMELIN & SON
GABÉ HOYLE
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER