IMM-2422-97
B E T W E E N:
KOSTA DOGOVIC and ANDA DOGOVIC
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The motion before me seeks an extension of time within which to file the Applicants' Record in their originating motion for leave and for judicial review. The sole reason for failing to file the Applicants' Record on time mentioned in the Notice of Motion was that Legal Aid was not approved until one business day prior to the deadline. The Application for Leave and for Judicial Review was filed on June 12, 1997. In the affidavit of the Applicants' Solicitor in support of this motion moved by the same solicitor, it was stated that the solicitor was away from his office from June 7 to June 16. No doubt someone from his office filed the application. I note it was not until June 23rd that the usually required opinion letter was sent to Legal Aid. I note that the same solicitor was acting before the Tribunal and presumably knew of the refusal about June 2nd when the applicants were notified and in any event by June 5th when he was instructed.
Dealing with the Notice of Motion the grounds for relief relied exclusively on the lack of legal aid. There have been numerous decisions of the Trial Division of this Court and at least the decision cited by counsel for the Minister in the Court of Appeal to the effect that the fact that the applicant was waiting for legal aid does not excuse the delay in filing the applicants' record.
The affidavit of Lindsay M. Darling sworn 15 July 1997 indicates he is the solicitor for the applicants. The principle that a solicitor should not act on a motion in which he is giving evidence has been a fundamental principle of our system of justice for centuries. There may be special circumstances rendering it necessary. No circumstances are outlined here. The reason for stating that the solicitor was away for a week when he might have been preparing an opinion letter to Legal Aid is not explained. If he was on holiday or his workload was too great neither would excuse the delay. (See Chin v. Canada (1993), 69 F.T.R. 77). I note also it is not explained why he did not send the letter before leaving. It is perhaps not surprising that an answer was not received until Friday July 11th. Without working on the weekend it turned out to be impossible to prepare, serve and file an Applicant's Record by the due date. As was pointed out in Espinosa v. Canada (1992) 14 N.R. 158 (Fed. C.A.) this Court is not run by the Legal Aid system. There was nothing to prevent the Applicants' lawyer preparing a record in the week before it was due.
There has been a complete failure to excuse the delay. In addition to excusing the delay an applicant seeking an extension of time to file a record must show some evidence of the existence of evidence to find an arguable case. For that purpose in addition to finding evidence there must be some submissions to show what the arguable case is.
The second affidavit of Lindsay M. Darling indicates he attempted to file the applicants' record with the motion for extension and was refused. Had it been filed what would have been the point of a motion seeking leave. If it had been exhibited to an affidavit in support of this motion what difference would it have made? Is the Court supposed to sort through the 300 pages of a record in hopes of finding evidence of a case which has not been placed before the Court?
From the second affidavit I gather that it was assumed the Court would have found something in the affidavits of the applicants. Information which would have enabled the Court to find the nature of an arguable case and possibly evidence which might support that case. To paraphrase Mr. Justice Muldoon in Harry A.L. Ladio v. The Minister of Citizenship and Immigration (unreported) IMM-4780-96 July 11, 1997, here, doing counsel's job for him, the Court has gone through the applicant's affidavits. These affidavits were sworn July 14th and apparently were for the purpose of the records said to have been prepared July 11. This is not explained. I noted that the affidavits bear page numbers which would indicate that they were part of a record. The affidavits appear to have been prepared for the record and are singularly unhelpful for the purpose of this motion. As previously stated, no submissions were filed to indicate what the case for leave is that the affidavit is supposed to evidence. What error of the Tribunal does that the fact that food and housing is short in former Yugoslavia support? What error is evidenced by the fact the applicants' brother is a refugee in Belgrade? And so forth and so on. I am not as fortunate as Mr. Justice Muldoon. I have not made a good job of doing the party's work and have not been able to find sufficient evidence to support a motion for leave. The motion for an extension will be dismissed because neither has delayed an excuse nor has evidence for an arguable case for leave been shown to exist. I note that the motion for an extension was hurriedly prepared and that there is a possibility that the delay in seeking legal aid could be explained. Also with the guidance of counsel's submissions the materials could contain evidence relevant to an arguable case. Therefore leave will be given to reapply on better evidence.
ORDER
Motion dismissed with leave to reapply on better evidence before 4:00 p.m. on August. 29, 1997.
"P.A.K. Giles"
A.S.P.
Toronto, Ontario
August 18, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
Court NO: IMM-2422-97
STYLE OF CAUSE: KOSTA DOGOVIC
and ANDA DOGOVIC
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: AUGUST 18, 1997
SOLICITORS OF RECORD:
SAMAC, DARLING
Ms. Lindsay M. Darling
811-25 Adelaide Street East
Toronto, Ontario
M5C 3A1
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2422-97
Between:
KOSTA DOGOVIC and ANDA DOGOVIC
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER