Date: 19981009
Docket: IMM-3811-98
Between:
XU JIAN HUA
MINH DA ZHEN
STEPHANIE ZHEN
OSCAR ZHEN
Applicants
AND
THE MINISTER
Respondent
REASONS FOR ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion in writing by the Applicants, dealt with pursuant to Rule 369 of the Federal Court Rules, 1998, for an extension of time under Rule 21(2) of the Federal Court Immigration Rules, 1993 (the Rules) within which to perfect their application for judicial review (the application) under Rule 10.
[2] In this motion, counsel for the Applicants also requests authorization to rely on her own affidavit, for the purpose of this motion, as the delay is caused by her own action.
[3] Under the present circumstances, I am willing to allow counsel to rely on her affidavit.
The Facts
[4] In my opinion, the relevant facts of this motion are as follows.
[5] On July 29, 1998 the Applicants filed their application for a judicial review of a decision of an immigration officer rendered on July 9, 1998 and received by the Applicants on July 15, 1998. That decision refused to allow the Applicants to make an inland application for permanent residence in Canada based on humanitarian grounds.
[6] The application record with respect to the leave request, according to the Rules, was required to be filed on or before August 28, 1998.
[7] As stated at paragraph 11 of the Applicants' memorandum of facts and law, counsel for the Applicants knew when she filed the application that she would be unable to comply with the time limit provision of Rule 10 as she was aware that her schedule for August and September 1998 was fully booked with professional and personal commitments.
[8] Paragraph 3 of the Applicants' memorandum of facts and law provides details of the Appellants' counsel's schedule for the summer of 1998. It reads as follows:
| 3. In light of the fact that a decision on an application for humanitarian considerations based on section 114 (2) of the Immigration Act was not expected in such a short time; in light of the fact that between July 31 and August 17, applicants' solicitor was on vacation; in light of the fact that between July 15 and July 31, applicants' solicitor already had a full agenda since she had to make sure that nothing would "pop out" in all her civil litigation cases during her vacation; that between August 17 and September 4th, she also had a full agenda since she had to answer the letters and procedures received during her vacation and prepare the subpoenas and rule 18 for a 4 days trial scheduled for September 22, 23, 24 and 25, 1998 (cases 500-05-021401-961, 500-05-021402-969); that she was left with only the week of September 1st to complete applicants' record and that she is the only lawyer of the firm to be familiar with those files; in light of the fact that applicants' record is ready; applicants submit that they acted with due diligence and that the motion should be granted; |
[9] Counsel for the Applicants, being aware of her tight schedule for the upcoming months, stated at the outset in the application that an extension of time would be required in order to serve and file the Applicants' record under Rule 10.
[10] In the application, she wrote the following:
| Applicants' counsel will be on vacation between July 31, 1998 and August 17, 1998, therefore, they will need an extension of time in order to perfect their application for leave, produce their affidavits, memorandum and record, until September 4, 1998. Applicants' counsel, Me Elaine Doyon, is the only attorney in her office who is responsible of the litigation cases in front of the Federal Court. |
[11] Furthermore, counsel for the Applicants notes in her affidavit that she received on August 21, 1998 - within the time period provided by Rule 10, one must note - a document which she considers necessary to complete the Applicants' file.
The Law
[12] 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.)). |
[13] In Chin v. Canada (Minister of Employment and Immigration) 1993, 22 Imm. L.R. (2d) 136, Madame Justice Reed made the following observations, at 138-39:
| I think I should set out my approach to motions for extensions of time. I start with the premise that the time limits set out in the rules are meant to be complied with. If they are too short then requests should be made to have the rules amended so that the time limits are lengthened. I do not grant requests for extensions of time merely because it is the first time that counsel has asked or because the workload which counsel has assumed is too great. I think such decisions are unfair to those counsel who refuse clients because their work-load is too heavy to allow them to meet required deadlines or who "pull out all the stops" to meet the deadlines, at great inconvenience to themselves. As I have indicated I take the view that the time limits set out in the rules are meant to be complied with and they are meant to apply to everyone equally. If an automatic extension was meant to be available merely because counsel seeks one, then the rules should provide for such an automatic extension, for everyone, when such is sought. |
| On what grounds then do I grant an extension of time. I have already indicated that, in general, I am not receptive to requests which are based solely on the workload counsel has undertaken. When an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event. |
| There was no such unanticipated cause for the delay in the present case. At the time the leave application was filed, it was known that the time limit for the filing of the application was 30 days, counsel knew her client lived in Campbell River and that she would be attending the Bar Convention towards the end of August. The scheduling was under her personal control. Thus, it was hard for me to justify, in such circumstances, the granting of an extension of time. |
[14] I am of the view that in the case at bar counsel for the Applicants placed herself in the same situation as counsel for the applicant in Chin. When the application was filed, it was known that the time limit for filing the application was thirty days. At that time, counsel for the Applicants knew well that her workload for the coming weeks and months coupled with her planned vacations would certainly prevent her from complying with the time limit provided in the Rules. As a matter of fact, by her own admission, counsel for the Applicants had been fully busy since July 15, 1998, two weeks prior to the filing of the application. Nevertheless, on July 29, 1998, she decided to place herself in an impossible position by filing the application as solicitor of record. Therefore, I am unable to conclude that as of July 29, 1998, and at any relevant time during the period provided by Rule 10, counsel for the Applicants was faced with an unexpected or unanticipated event.
[15] In Narinder Singh v. Minister of Citizenship and Immigration (unreported decision of March 6, 1996 in file IMM-3512-95), in a situation somewhat similar to the instant one, I made the following comments, at page 3:
| The explanation provided for failing to file and serve the record within time - the preparation of another record during the same period - lacks sufficient weight to justify the alleged insufficiency of the entire period of time, it seems to me. Moreover, such an excessive workload necessarily develops progressively; therefore, when all is said and done, it is thoroughly foreseeable and thus controllable. |
[16] In her written representations in reply to the Respondent's representations, counsel for the Applicants argues as follows:
| 9. This case has to be differentiated from the usual cases where the lawyer accepts to take a case while he knows that he does not have time to take care of it because of overwork. In the present case, applicants' counsel has been taking care of their Parol Board file, their immigration file, their access to information file, and their humanitarian and compassionate grounds file since the early months of 1998. All those files are overlapping one another and therefore, applicants' counsel could not logically refer this specific application to another counsel outside the firm nor inside the firm because she is the only one in the firm to take care of this type of file (as mentioned in Me Elaine Doyon's affidavit dated September 4, 1998); |
[17] I do not believe that the fact that counsel for the Applicants had been deeply involved in the past in the affairs of the Applicants is a reasonable and sufficient reason for her to have decided to undertake the application knowing that she could not meet the deadline. The fact that she could not refer the file to a colleague within her firm is one thing. However, I believe that the correct approach for her towards both her clients and the requirements of the Rules would have been to seek an outside counsel to take carriage of the application as early as July 15, 1998, the date on which she received the impugned decision. Counsel for the Applicants does not establish whether she sought to transfer the Applicants' file to an outside counsel who would have been in a position to perfect the application within the time limits. Had counsel sought such avenue, it is most likely, in my opinion, that she would have found someone.
[18] Finally, and contrary to what seems to be suggested by counsel for the Applicants in her written submissions in reply, I do not believe that to require the Applicants and their counsel to comply with the time limit provisions of the Rules is to deny them access to justice or to deny them their right to choose their counsel. Any applicant and any counsel retained to act on his or her behalf are under the authority of the Rules and are expected to comply with the requirements of the Rules.
[19] As the first element of the test laid down by Justice Strayer in Beilin, supra, paragraph 12, has not been met by the Applicants, there is no need for me to evaluate the second element of that test, to wit whether the Applicants have shown that they possess an arguable case.
[20] This of course puts the Applicants in an unfortunate situation, but the Court in Chin, supra, at 139, expressed itself as follows in a similar situation:
| I know that courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purposes are one. It is too easy a justification for non-compliance with the rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced. |
[21] For the foregoing reasons, this motion for an extension of time will therefore be dismissed.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
October 9, 1998
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
IMM-3811-98
XU JIAN HUA
MINH DA ZHEN
STEPHANIE ZHEN
OSCAR ZHEN
Applicants
AND
THE MINISTER
Respondent
WRITTEN MOTION EXAMINED IN MONTREAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:October 9, 1998
WRITTEN OBSERVATIONS BY:
Me Élaine Doyon for the Applicants
Me Marie Nicole Moreau for the Respondent
SOLICITORS OF RECORD:
Me Élaine Doyon for the Applicants
Mongeau Harvey
Montreal, Quebec
Me Morris Rosenberg for the Respondent
Deputy Attorney General of Canada