Ottawa, Ontario, September 11, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SARA MALKA GERSHON
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is a motion in writing under Rule 399 seeking to set aside my previous Order by which the Applicants’ application for leave and for judicial review (leave application) was dismissed. That previous Order was made because of the Applicants’ failure to perfect their leave application by filing an application record as required by Rule 10 of the Federal Courts Immigration and Refugee Protection Rules (Immigration Rules), SOR/93-22.
[2] The Applicants filed their leave application on January 25, 2006 challenging a decision of the Immigration and Refugee Board rendered on January 4, 2006. In the affidavits filed in support of this motion, it is asserted that the Applicants failed to perfect their leave application because their immigration consultant, Mira Trakht, was unsuccessful in filing the application record within the time required. According to Ms. Trakht’s affidavit, sworn on June 5, 2006, the application record was rejected by the Court Registry because it was not in proper form. Upon being advised of this problem, Ms. Trakht did nothing for several months. Eventually, she got around to consulting with legal counsel and, early in June of this year, counsel attempted to file a motion to extend time to file and serve the application record. That motion was rejected by the Court Registry because, on April 4, 2006, I had already dismissed the leave application.
[3] The present motion was not filed until August 1, 2006 and no explanation has been given on behalf of the Applicants for the additional delay of almost two months in seeking relief.
[4] An affidavit filed in support of the motion by a paralegal working in the office of the Applicants’ legal counsel deposes as hearsay that Ms. Trakht reported being unaware that the leave application had been dismissed by the Court on April 4, 2006. However, Ms. Trakht’s affidavit is completely silent on this point and the Court file indicates that a Certificate of the dismissal Order was sent by registered mail to her office on April 7, 2006.
[5] A fair description of what took place here is that the Applicants’ representatives have been derelict in handling this matter over the past six months. In the case of Ms. Trakht, this was not a situation of an inadvertent error. She very deliberately chose to do nothing with the full knowledge of her failure to perfect the leave application since at least February, 2006. Certainly, there was ample time between the aborted filing of the application record and the dismissal of the application on April 4, 2006 to have brought a motion for an extension of time.
[6] The Applicants’ motion record indicates that they are seeking relief under Rule 399 but they have argued the motion as though it was brought under Rule 21 of the Immigration Rules for an extension of time. My earlier Order dismissing the leave application constituted a final decision and no extension of time to file the application record can be considered until such time as that Order is set aside. The Applicants’ reliance on the Federal Court of Appeal decision in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263; 63 N.R. 106 dealing with the Court’s discretion to extend time is, therefore, inapt.
[7] The case authorities indicate that it is only in the narrowest of circumstances that the Federal Courts Rules permit an Order setting aside an earlier dismissal of a proceeding: see Fernandez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 909; [2001] F.C.J. No. 1287 (QL); and Boubarak v. Canada (Minister of Citizenship and Immigration), 2003 FC 1239 [2003] F.C.J. No. 1553 (QL);.
[8] Under Rule 399, an Order may be set aside if a party can establish a prima facie case for doing so, along with a failure to appear by reason of accident or mistake. Relief is also available on the strength of matters arising or discovered subsequent to the Order or for fraud.
[9] Under Rule 397 the Court may reconsider an Order within ten days of making it if it does not accord with the reasons given or where a matter was overlooked or accidentally omitted.
[10] Neither Rule 397 nor 399 are available to assist the Applicants in the circumstances of this case.
[11] In the very similar case of Vinogradov v. Canada (Minister of Employment and Immigration), 77 F.T.R. 296; [1994] F.C.J. No. 647 (QL), Justice Andrew MacKay was asked to reconsider his earlier dismissal of a leave application. There, the delay in bringing the matter back before the Court was only a matter of days and not, as in this case, months. Justice MacKay dismissed the motion to reconsider and held that such relief could only be granted “in very special circumstances” (see para. 2) and only where the proven facts are sufficient to come within the applicable rules. He concluded his decision with the following observations:
11 I appreciate some of the difficulties for the applicants acting without representation of counsel in seeking access to the process for review of the decision by the CRDD in their case. Nevertheless, they must comply with the rules applicable to the process.
12 I note this result is consistent with that in Ansomah v. Canada (M.E.I.), Unreported, Court file A-1261-90, April 25, 1990, (F.C.A.) where the Court of Appeal dismissed an application for an extension of time to file written representations in support of an application for leave to commence an application for judicial review, where the application for an extension of time was brought after the application for leave was dismissed.
13 Because no basis is submitted by the applicants which would justify reconsideration of the order made on October 14, 1993, and no satisfactory grounds are here submitted for exercising discretion to permit late filing of an application record, the Order of October 14 must be considered final.
[12] In Pistan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 774; [2001] F.C.J. No. 1132 (QL);, Justice MacKay also dealt with a motion to reconsider an earlier Order for dismissal for failing to perfect an application for leave and for judicial review. The excuse offered was that the applicant had difficulty retaining legal counsel. That motion was dismissed on the following basis at paras. 4 to 6:
4 The motion makes reference to Rule 399(1)(b) of the Federal Court Immigration Rules, 1998. That Rule provides authority for the Court, on a motion, to set aside or vary an order that was made "in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding". No facts are alleged that would provide a basis for the Court to now set aside its Order of May 23, 2001, under that Rule.
5 Further, the facts alleged do not bring the circumstances of the applicant's case within Rule 397, the usual basis for a motion for reconsideration. That Rule provides that within ten days after the making of an order or such further time as the Court may allow, a party may serve and file a motion requesting reconsideration on grounds that the order does not accord with the reasons given, or that a matter that should have been dealt with has been overlooked or accidentally omitted. Those are not the circumstances here.
6 Inability to qualify for legal aid and inability to retain counsel because of limited finances are not acceptable explanations for delay that would warrant an extension of time to file a motion or a motion record in accord with the Court's Rules. While an individual may be well advised to have counsel to represent him or her in judicial proceedings, he or she may also self-represent as the applicant in this case now appears ready to do. Failure to do so earlier, and a decision to do so now, is not a basis for the Court to grant an extension of time. There simply is no basis for the Court to set aside its Order of May 23, 2001.
[13] In the case of Cove v. Canada (Minister of Citizenship and Immigration), 2001 FCT 266; [2001] F.C.J. No. 482 (QL);, Justice Denis Pelletier dealt with an application to extend time to file an application for judicial review based upon allegations of negligence on the part of an immigration consultant. He refused to grant relief on that basis and held at para. 10 that clients will be bound by the negligence and mistakes made by their representatives:
10 If individuals are going to hold themselves out as skilled in immigration matters and, as is increasingly the case, adopt the designation of "counsel", then they will be held to the same standard as those who customarily appear before the Court. The consequences to their clients of non-performance will be the same as it is for clients of the immigration bar. There is no reason why the Court should shelter consultants from negligence claims by overlooking their mistakes. Members of the immigration bar pay large liability insurance premiums for coverage which is subject to being called upon every time a court refuses to gloss over their mistakes. To apply a different standard to consultants is to subsidize their competition with the immigration bar.
[14] The apparent failings by the Applicants’ representatives in this case similarly do not bring their situations within the scope of the Rules which permit the Court to set aside its previous orders. I would add to this that, even if I had the authority to extend time to allow for the late filing of the application record, I would not do so on the facts presented. The long delays in bringing this matter before the Court have not been adequately explained, nor have the Applicants established that they have an arguable case on the merits. Notwithstanding their alleged fear, the likelihood that the Applicants can establish meritorious claims to refugee protection given their right of return to Australia seems, at best, remote. Although the Applicant, Sara Gershon, may not be an Australian national, it is apparent from the materials filed that she has lived there with her mother for a number of years. There is no indication given that establishes that she would not have the legal right to return to that country in the company of her mother.
[15] In the result, this motion to set aside the Court’s Order of April 4, 2006 is dismissed.
ORDER
THIS COURT ORDERS that the Applicants’ motion under Rule 399 is hereby dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-399-06
STYLE OF CAUSE: MARINAH BERGMAN, SARA MALKA GERSHON
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MOTION DEALT WITH IN OTTAWA BY WAY OF WRITING
AND ORDER BY: THE HONOURABLE MR. JUSTICE BARNES
APPEARANCES:
|
Mr. Daniel M. Fine Toronto, Ontario |
FOR THE APPLICANT |
|
Ms. Marissa Bielski Toronto, Ontario |
SOLICITORS OF RECORD:
|
Mr. Daniel M. Fine Toronto, Ontario |
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |