PRACTICE |
Variation of Time |
Muhammed v. Canada (Minister of Citizenship and Immigration)
IMM-2547-03
2003 FC 828, Hargrave P.
3/7/03
14 pp.
Applicant, Ms. Muhammed, by present motion seeks nominal extension of time in which to serve and file record-- Applicant's difficulties began when moving from Victoria to Vancouver, following unsuccessful immigration hearing-- Victoria counsel filed required application for leave and judicial review in timely manner on April 9, 2003--Applicant, with assistance of Legal Services Society of British Columbia, in Vancouver, retained counsel in Vancouver, Mr. Carlos Charles: Mr. Charles provided confirmation to Legal Services Society on April 2003 acting for applicants--However, on May 16, 2003, month after counsel had been retained and few days after record should have been served and filed, Mr. Charles advised Legal Services Society that he was unable to proceed with Ms. Muhammed's case by reason of heavy workload, but that he asked present counsel, Mr. Kajoba, to take up file and to that end Mr. Charles provided change of lawyer form--Applicant and her child left with new lawyer week after record should have been served and filed and thus need to obtain extension of time to serve and file record--Mr. Kajoba appears to have acted promptly to get matters in hand and now brings present motion for time extension--Agreed appropriate test for time extension set out in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.): (1) continuing intention to pursue application; (2) application has some merit; (3) no prejudice to respondent arises from delay; and (4) reasonable explanation for delay exists--Other principles governing time extension found in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (C.A.) in which pointed out need, to do justice between parties and noted various factors justifying time extension must be balanced one against other--Thus, must balance applicable factors set out in Hennelly with overall objective of doing justice between parties--In case at bar, applicant had required continuing intention to pursue application--As to merit of application, reasons to be reviewed relatively thorough, but there may be room to argue tribunal did not assess evidence as whole or that, in view of serious consequences, set out reasons leading clearly and cogently to finding no credible basis for claim--Argument not strong, but possible--As to matter of prejudice, length of delay not great enough to cause any prejudice to respondent--Concerning reasonable explanation for delay, two approaches submitted--One based on case Chin v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 77 (F.C.T.D.) and other refers to Mathon v. Canada (Minister of Employment and Immigration) (1988), 28 F.T.R. 217 (F.C.T.D.)--In choosing between two approaches, fitting to turn to Grewal which requires balancing of factors bearing on time extension against overall objective of doing justice between parties--Taking all of circumstances into consideration, including continuing intention to pursue application; merit of application; lack of any prejudice accruing to respondent by reason of delay; explanation for delay and particularly that it was former counsel who, by abandoning applicants after allowing time to run, deprived applicants of their right; and to terminate present judicial review proceeding on basis of procedural negligence and/or incompetence of former counsel would constitute windfall to Crown, time extension granted.