Date: 20010214
Docket: IMM-5979-00
Neutral Citation: 2001 FCT 70
Ottawa, Ontario, this 14th day of February 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
MARK GLOUKOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] The applicant is a failed refugee claimant from Russia where he apparently occupied a senior position in the Presidential Security Agency. As a result of an incident involving the use of stolen money in a presidential campaign, he says he began receiving death threats which caused him to flee Russia and to claim refugee status in Canada. He currently resides in Winnipeg, Manitoba. His refugee claim was rejected by the Convention Refugee Determination Division ("CRDD") on October 27, 2000 and he received notice of the decision on November 3, 2000.
[2] The applicant filed a Notice of Application for leave and judicial review of the CRDD's decision on November 20, 2000. On December 5, his counsel filed a Notice of Motion seeking leave to amend the Notice of Application to correct certain technical deficiencies and to include the applicant's wife and child as co-applicants. In a decision dated December 19, 2000, Prothonotary Lafrenière dismissed the application to amend on various grounds including the fact that the application to amend to include the wife and child as co-applicants was in effect an attempt to circumvent the fact that the latter were out of time for bringing an application in their own right. However, the Prothonotary's order specifically provided that it was granted without prejudice to the wife and child bringing their own application for leave and judicial review.
[3] On December 20, 2000, a motion for an extension of time to file the applicant's record was filed. On January 16, 2001, the decision of Prothonotary Lafrenière was appealed by motion. On January 18, 2001, a motion was made for an extension of time to file an amendment to the Notice of Application. On January 22, 2001, a motion was made to amend the Notice of Application to include the applicant's wife and child as co-applicants.
[4] As quickly as they were made, the motions were abandoned. On January 18, 2001, the applicant abandoned his motion of January 16, 2001, which was the appeal from the decision of Prothonotary Lafrenière. On January 25, 2001, the applicant abandoned his motion of December 20, 2000, seeking an extension of time to file his application record. Notwithstanding the fact that the respondent consented in writing to the motion date January 18, 2001 to add the applicant's wife and child as co-applicants, the applicant abandoned that motion on January 25, 2001. The same day, the applicant also abandoned his motion of January 22, 2001, seeking an extension of time to file an Amended Notice of Application.
[5] The Notices of abandonment were apparently intended to clear the field for the present motion dated January 25, 2001 in which the applicant seeks "an extension of time within which to file the Applicant's Record pursuant to Rule 309 of the Federal Court Rules, 1998 and the applicant's amended Leave Application pursuant to the Federal Court Rules." The respondent says that it consents to the addition of the wife and child as co-applicants but objects to the granting of an extension of time for the filing of the motion record. If the respondent's argument prevailed, the wife and child would be added to the Notice of Application just in time to see their application dismissed for failure to file an application record, since the Court is urged to reject the motion for leave for an extension of time to file the record.
[6] Let us begin with the motion to extend the time for filing an Amended Notice of Application. The amendments in question are, in effect, the addition of the applicant's wife and child as co-applicants. A motion seeking that relief was dismissed by Prothonotary Lafrenière on December 19, 2000. That order cannot be undone by simply amending the Notice of Application without leave and then obtaining leave to file the Amended application late. The appropriate response, if dissatisfied with the Prothonotary's order, was an appeal which was launched. It was subsequently abandoned. The Prothonotary's order therefore stands. It cannot be undone by a consent nor by the simple expedient of bringing a new motion. In the end, it may be that the wife and child's position is improved by this state of affairs since they continue to be free to make their own application. The prospects for this application are not good.
[7] The application for an extension of time to file the application record is supported by an affidavit from a legal researcher in the office of counsel for the applicant. The affidavit of the legal researcher is dated December 20, 2000 and was obviously prepared for the purposes of one of the earlier motions. It has attached to it as an exhibit a signed but unsworn affidavit (which is to say, no affidavit at all) of the applicant which, presumably, is intended to be submitted in support of the Notice of Application. The application record for which leave for late filing is sought is said to have been ready to be filed since prior to December 20, 2000. The only defect is the absence of an affidavit. The absence of a jurat on the purported affidavit is explained by the fact, which is "confirmed" in the legal researcher's affidavit, that the applicant was only in the City of Winnipeg from approximately 2:00 a.m. to 5:00. a.m. on December 20, 2000 and reviewed and executed the document at that time. One should not be surprised that there was a shortage of persons capable of commissioning the affidavit at that particular time. However, not all of the formalities were ignored. The affidavit goes on to say that the legal researcher is informed by the applicant's spouse that the applicant reviewed the contents of the affidavit with a translator who was able to interpret the contents of the document to him before he signed it. But no certificate of translator appears in the record. One must say that it speaks well for translators that they are less inclined to stand on formalities like regular hours of work than certain others.
[8] The possibility of repairing the defect in the affidavit has been canvassed and regrettably, it does not appear to be within the realm of the possible because "the applicant is currently not available to attend to executing the affidavit before a Commissioner of Oaths, as we are not currently in contact with him". This helpful explanation appears in an affidavit dated December 20, 2000 in support of a motion dated January 25, 2001. Presumably, the applicant's whereabouts in the month following the swearing of the legal researcher's affidavit is a matter of marginal interest. And so it might be, since his absence has only mildly inconvenienced counsel in his diligent efforts on his behalf.
[9] The application for an order extending the time for filing the application record is dismissed as no sensible explanation is given for the failure to file the application record and supporting affidavit in time. Both the applicant and his counsel appear to be preoccupied with more important matters.
ORDER
For the reasons stated above, the application for an order extending the time for filing an Amended Notice of Application and the application for an order extending the time for filing the application record are dismissed.
"J.D. Denis Pelletier"
Judge