IMM-2576-95
BETWEEN:
MAXIME IAKOLEV
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD MORNEAU, ESQ.
PROTHONOTARY:
This is a written application by the Applicant, dealt with pursuant to Rule 324, for an extension of time under Rule 21(2) of the Federal Court Immigration Rules, 1993 (the Rules) within which to perfect his application for judicial review under Rule 10.
The Facts
In my opinion, the relevant facts of this application are as follows.
On September 22, 1995, the Applicant filed an application for leave with respect to a decision of the Refugee Division rendered on August 21, 1995, to the effect that the Applicant is not a Convention Refugee.
In his application for leave, the Applicant indicated that he had not received written reasons from the Tribunal. However, reasons were received by Applicant's counsel on December 20, 1995, as stated by counsel in his motion.
According to Rule 10(1)(b) and by virtue of Rules 3(1)(b) and 4 of the Federal Court Rules, the Applicant's record was to have been perfected and filed by February 6, 1996 at the latest, according to my computation. I come to this conclusion by starting to count the thirty-day period on January 8, 1996.
It was only on March 11, 1996 that the Applicant filed the application for an extension of time mentioned in the first paragraph.
In support of his motion, Applicant's counsel relies on an affidavit from a legal secretary of his firm in which the affiant states that, although she was instructed by Applicant's counsel to work with February 19, 1996 as the final date to file and serve Applicant's record, she understood from a conversation with a clerk of this Court and noted in her records that February 28, 1996 was the deadline. As noted above, however, I believe that the deadline falls on February 6, 1996. Applicant's counsel indicates in his motion that he realized that the final date was misunderstood when he received a fax on February 21, 1996 from Respondent's counsel informing him that the last day was February 19, 1996.
The Law
The ultimate responsibility to compute time limits under the Rules rests with a party and its counsel regardless of any conversation between a counsel's secretary and a registry officer of the Court in that regard. Unfortunately for the Applicant, most of the supporting affidavit to his motion refers to what was understood by his counsel's firm from a conversation with the registry of the Court. This is of no assistance in a motion for extension of time.
When a party complies with a time limit, even if it is on the last day, no explanation is required as no extension is necessary. However, when a deadline is missed, it is to a great extent irrelevant to concentrate solely on the last day. What is required is an explanation of the efforts spent throughout the whole period.
Mr. Justice Strayer of the Court of Appeal, sitting as a Judge ex officio of the Trial Division on reconsideration of an earlier order, noted in Beilin et al. v. Minister of Employment and Immigration (1994), 88 F.T.R. 132 at 134, that in order to succeed on an application for an extension of time:
(...) [A]n 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 (see e.g. Grewal v. M.E.I., [1985] 2 F.C. 263, 63 N.R. 106 (F.C.A.)).
(my emphasis)
In the present case, the affidavit contains very little factual material, indeed none at all in my opinion, either to explain the delay or to establish that the Applicant has a serious and arguable case.
If I am wrong in arriving at February 6, 1996 as the deadline in issue here, and that February 16 or even 19 is accurate, then the Applicant and his counsel have benefitted from even more time and the explanation required above is even more necessary.
This application for extension of time is dismissed.
Richard Morneau
Prothonotary
Montreal, Quebec
May 10, 1996
FEDERAL COURT OF CANADA
Court NoIMM-2576-95
Between
MAXIME IAKOLEV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORDS
COURT NO: IMM-2576-95
STYLE OF CAUSE: MAXIME IAKOLEV
Applicant
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
WRITTEN MOTION EXAMINED WITHOUT PERSONAL APPEARANCE
OF THE PARTIE IN MONTREAL
REASONS FOR ORDER BY : RICHARD MORNEAU, ESQ.
PROTHONOTARY
DATE OF REASONS FOR ORDER: May 10, 1996
WRITTEN OBSERVATION BY:
Me Mark J. Gruszczynski for the Applicant
Me Ian Hicks for the Respondent
SOLICITORS OF RECORDS:
Me Mark J. Gruszczynski for the Applicant
Westmount, Québec
George Thomson for the Respondent
Deputy Attorney General of Canada
Department of Justice Canada
Guy Favreau Complex
Montreal Quebec