Richard Paul Kukan (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal (73-A-30), Jackett C.J.—
Ottawa, January 7, 1974.
Practice—Application for extension of time for leave to
appeal—Procedure—Immigration Appeal Board Act, s. 23—
Federal Court Rules 319(2), 324, 1107.
An application for extension of time for leave to appeal
must be made in writing under Rules 324 and 1107 of the
Federal Court Act which application can be made without
regard to when or where the Court may be sitting. The
applicant must by affidavit in support of the motion, under
Rule 319(2), satisfy the Court that there is some arguable
ground upon which the proposed appeal might succeed. As
well, the Court must have the record of proceedings and the
judgment or reasons therefor of the tribunal or Court
appealed from.
MOTION.
COUNSEL:
Application in writing under Rule 1107.
SOLICITORS:
Dickins and Richards, Edmonton, for
appellant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J.—This is an application for
extension of time for an application for leave to
appeal under section 23 of the Immigration
Appeal Board Act, which reads as follows:
23. (1) An appeal lies to the Federal Court of Appeal on
any question of law, including a question of jurisdiction,
from a decision of the Board on an appeal under this Act if
leave to appeal is granted by that Court within fifteen days
after the decision appealed from is pronounced or within
such extended time as a judge of that Court may, for special
reasons allow.
The substantive portion of the Notice of
Motion reads as follows:
TAKE NOTICE that the Applicant does hereby apply for an
extension of time for an application for leave to appeal the
decision of the Immigration Appeal Board given the 8th day
of November, 1973 and signed the 9th day of November,
1973 at Vancouver, British Columbia, File 71-3197, and that
the grounds for such appeal are:
1. The Board was not properly constituted pursuant to
Section 6(3) of the Immigration Appeal Board Act.
2. The decision of the Board is invalid.
3. No evidence was properly before the Board upon which
a proper decision of the Board could be made.
4. The evidence before the Board was insufficient to found
a proper decision of the Board.
5. The Board should have given a stay of execution of the
deportation order herein pursuant to and by reason of the
existence in this case of the circumstances set out in Section
15 of the Immigration Appeal Board Act.
6. The crime referred to in the deportation order is not one
involving "moral turpitude".
7. The deportation order is invalid in its stated authority
under Section 19 of the Immigration Act.
8. Such other grounds as may appear to this Court to be
just.
AND FURTHER TAKE NOTICE that in support of the said
application there has been filed the Affidavit of the Solicitor
for Applicant-Appellant.
The substantive part of the affidavit reads as
follows:
1. That I am the Solicitor for the Applicant-Appellant in the
above styled matter.
2. That this Affidavit is made in support of an application to
this Court for an extension of time for the making of an
application for leave to appeal from the decision of the
Immigration Appeal Board given 8 November, 1973 and
signed 9 November, 1973 at Vancouver, British Columbia,
File 71-3197.
3. That I received on November 15, 1973 a copy of the
above-mentioned decision given 8 November, 1973.
4. That on November 15, 1973 I wrote to the Registrar,
Immigration Appeal Board, at Vancouver, British Columbia,
advising that the Applicant-Appellant intended to appeal and
requested a statement of finding of fact and reasons for
judgment with respect to the judgment of 8 November,
1973.
5. That on November 20, 1973, I received a reply by the
Registrar, Immigration Appeal Board, at Vancouver, British
Columbia, under date November 16, 1973, advising that the
request of November 15, 1973 has been made known to the
Board.
6. That there are no sittings of this Court at Edmonton until
December 10th, 11th and 12th, 1973 as I am informed by
the Clerk of Court at Edmonton, and as I verily believe.
7. That under the foregoing circumstances application
cannot be made to this court for leave to appeal within the
time limited by Section 23 of the Federal Court Act [sic] as
amended and for the foregoing reasons the Applicant-Appel
lant requests an extension of time sufficient so that an
application for leave to appeal to this Court can be made.
The short answer to the application as set out
in the Notice of Motion and read with the
affidavit is to be found in the fact that the
application is based on a supposed impossibility
to apply for leave within the time fixed by
section 23 of the Immigration Appeal Board
Act which impossibility is based upon the
alleged fact that, as of the time the affidavit was
sworn on November 22, 1953, "there are no
sittings of this Court at Edmonton until Decem-
ber 10th, 11th and 12th, 1973". This alleged
fact is quite irrelevant. Having regard to Rule
1107, 1 the application for leave to appeal could
have been made (in the only way in which such
an application can be made) by an application in
writing under Rule 324, 2 which application can
be made, as appears from a reading of Rule 324,
' Rule 1107 reads, in part, as follows:
Rule 1107. (1) Unless the Chief Justice, or a judge nomi
nated by him, of his own motion or on an ex parte request,
otherwise directs for special reason,
(a) an application under section 31(2) of the Act for
leave to appeal from a judgment of the Court of Appeal
to the Supreme Court of Canada that is being made as
contemplated by Rule 1106(1)(d),
(b) an application for leave to appeal to the Court of
Appeal, or
(c) an application to the Court of Appeal or to a judge
thereof for an extension of time,
shall be made in the manner contemplated by Rule 324
and the provisions of paragraphs (2), (3) and (4) of Rule
324 shall be applicable to any such application as if it
were made under paragraph (1) of Rule 324.
2 Rule 324 reads, in part, as follows:
Rule 324. (1) A motion on behalf of any party may, if the
party, by letter addressed to the Registry, so requests, and
if the Court or a prothonotary, as the case may be,
considers it expedient, be disposed of without personal
appearance of that party or an attorney or solicitor on his
behalf and upon consideration of such representations as
are submitted in writing on his behalf or of a consent
executed by each other party.
(2) A copy of the request to have the motion consid
ered without personal appearance and a copy of the
written representations shall be served on each opposing
party with the copy of the notice of motion that is served
on him.
without regard to when or where the Court may
be sitting. 3
As Rule 1107 deals, in the same terms, with
applications for leave to appeal and applications
for extensions of time, and as this application
for extension of time was made in conformity
with the provisions of Rule 1107, it is difficult
to understand how it could have been thought
that the application for leave to appeal could not
be made within the time fixed by section 23 of
the Immigration Appeal Board Act.
Even if there was an acceptable reason for a
delay in making the application for leave, an
extension of time would not be granted unless
the applicant has satisfied the Court that there is
some arguable ground upon which the proposed
appeal might succeed. Upon the point being
taken, by the written representations filed on
behalf of the respondent, that the material filed
in this Court by the applicant was not sufficient
(3) A party who opposes a motion under paragraph (1)
may send representations in writing to the Registry and to
each other party or he may file an application in writing
for an oral hearing and send a copy thereof to the other
side.
(4) No motion under paragraph (1) shall be disposed of
until the Court is satisfied that all interested parties have
had a reasonable opportunity to make representations
either in writing or orally.
3 If the motion had been one that should have been
presented to the Court verbally, a request should have been
made to the Registry for a special sittings before the party
took the position that there was no appropriate sittings. See
Rule 317(4), which reads as follows:
(4) A request may be made informally to the Registry
for an appointment of a special time and place for a
sittings of the Court of Appeal or a judge thereof to hear
any motion or for a sittings of the Trial Division to hear a
motion that is likely to take considerable time or in
respect of which there is some reason for a hearing at
some time other than a regular motion day or during a
General Sittings.
Such a request may be made by long distance telephone to
the Registry at Ottawa if there is any difficulty.
to establish any such arguable ground, the appli
cant replied in part, as follows:
1. The grounds for the appeal are set out in the Notice of
Motion herein.
2. An additional ground for the appeal is that there are
incorrect facts in the record upon which the decision
appealed from is based, namely, the crime in the United
States was "misappropriation of property by an officer" not
"fraudulent appropriation of property" and he did not leave
his wife but rather she left him and took the children, and he
has provided for the children and he cannot see how she
could draw welfare when she has been working at two jobs
concurrently, and the reference to "embezzlement" is
erroneous and the statement that "he seems to be a very
irregular person with no redeeming features" is incorrect
and prejudicial.
3. There is material before this Court to substantiate the
matters set out in said Notice of Motion and said additional
ground by way of:
(a) the Judgment and Record of the Immigration Appeal
Board and the prior Inquiry;
(b) the Notice of Motion herein and the affidavit filed in
support thereof;
(c) these written representations.
These representations indicate a misunder
standing of the practice of this Court (and of
any other Canadian court with which I am
familiar). Rule 319 of the Rules of this Court
read, in part, as follows:
Rule 319. (1) Where any application is authorized to be
made to the Court, a judge or a prothonotary, it shall be
made by motion.
(2) A motion shall be supported by affidavit as to all the
facts on which the motion is based that do not appear from
the record, which affidavit shall be filed; and an adverse
party may file an affidavit in reply.
Statements of fact made in a notice of motion or
in written argument must be established by an
affidavit or affidavits filed in support of the
motion as required by Rule 319(2). 4 There is no
material before this Court in this case except
the affidavit quoted above. In particular, this
Court has not before it the deportation order,
the record of the proceedings before the Immi
gration Appeal Board, the Board's judgment or
the reasons therefor.
4 The exception in respect of facts that "appear from the
record" has no application here because the notice of
motion in support of this application is the first proceeding
in this Court in respect of the matter.
I advert to this aspect of the matter because,
if the applicant decides to proceed further with
the matter, it must be understood that it is
necessary that he put before the Court, by the
means prescribed by the Rules, the facts neces
sary to support his application or it must be
dismissed.
The application must be dismissed but it may
be renewed, on proper material, if the renewed
application is made without delay. I suggest
that, if the application for an extension of time
is renewed, it be accompanied by an application
for leave, made by way of a separate notice of
motion but based, by a cross-reference, on the
material filed in support of the application for
an extension of time.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.