Date: 20021216
Docket: IMM-4898-01
Neutral Citation: 2002 FCT 1305
Ottawa, Ontario, December 16, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
KARIM MAJERBI
Applicant
and
THE MINISTER OF IMMIGRATION AND CITIZENSHIP
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion under Rule 397 of the Federal Court Rules, 1998 (the Rules) accompanied by a request for an extension of the time in which to file such a motion.
[2] I have examined the written submissions of the parties in support of both aspects of this motion.
[3] The least that can be said is that the arguments, which are based on two affidavits, the applicant's and his sister's, are hardly persuasive. In the first place, it is curious that the applicant is silent on the reasons for his absence from Quebec and that it was necessary to refer to his sister's affidavit in order to learn that he had to leave the province one week after the order that was rendered, on August 15, 2002. I agree in part with the respondent's counsel that these two affidavits raise more questions than answers in regard to the reasons that might justify having waited until October 18, 2002, or more than two months after the order that was rendered, in order to serve a motion to reconsider.
[4] The applicant alleges that he was unable to speak to or meet with his lawyer although he was in Quebec between August 15 and 23, 2002, while his sister attests that she met with the lawyer as soon as the day after the order was issued, on August 16, 2002, a date on which the applicant was still in Quebec.
[5] The steps taken by the applicant's sister, while praiseworthy, are not enough to demonstrate that the applicant has discharged his onus to demonstrate to the Court that he was unable to present a motion within the prescribed periods.
[6] The application for an extension of time is therefore dismissed.
[7] However, I have also examined the reasons in support of the motion to reconsider under Rule 397 of the Rules, which reads as follows:
| 397(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that |
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| 397(1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :(a) the order does not accord with any reasons given for it; or |
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a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier; |
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| (b) a matter that should have been dealt with has been overlooked or accidentally omitted. |
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b) une question qui aurait dû être traitée a été oubliée ou omise involontairement. |
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| (2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. |
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(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour. |
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[8] It appears from the applicant's motion that he disagrees with my order refusing to certify a question suggested by both parties at the end of the hearing, on August 15, 2002.
[9] I do not think I need to comment again on this order, except to mention that, far from having overlooked or failed to respond to the request that was put to me to certify a question, I explained in some detail the reasons behind the order.
[10] In the circumstances, this motion under Rule 397 of the Rules constitutes a disguised appeal of the order rendered on August 15, 2002.
[11] As counsel for the respondent clearly indicated in his written memoranda, it is the task of the trial judge and not the parties in the case to rule on the relevance of certifying or not certifying a serious question of general importance.
[12] Although I did not need to rule on the appropriateness of replying favourably to this motion under Rule 397 of the Rules, as I had already found that it was filed out of time and that the circumstances did not warrant an extension of the time, it is clear that if I had had to render a decision, the motion under Rule 397 would have been dismissed.
O R D E R
Consequently, this motion for an extension of time is dismissed.
"Pierre Blais"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4898-01
STYLE: KARIM MAJERBI
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
MOTION TAKEN UNDER CONSIDERATION IN WRITING WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER AND ORDER OF MR. JUSTICE BLAIS
DATED: DECEMBER 16, 2002
APPEARANCES:
JOHANNE DOYON FOR THE APPLICANT
ANNIE VAN DER MEERSCHEN FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHANNE DOYON FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA