GRUME TILAHUN TSEHAY KEBEDE YACOB GRUME DIBORA GRUME Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2019 FC 815

Date: 20190614 Docket: IMM-2077-19 Citation: 2019 FC 815 Ottawa, Ontario, June 14, 2019 PRESENT: Mr. Justice Roy BETWEEN: GRUME TILAHUN TSEHAY KEBEDE YACOB GRUME DIBORA GRUME Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The applicants are late in challenging a decision of the Refugee Appeal Division rendered on March 18, 2019, but received by the applicants on March 25, 2019.

The motion in writing for an extension of time to file the applicants’ record is date-stamped " “May 14, 2019” " and it is opposed by the respondent. [ 2 ] The notice of motion is skeletal, referring only to the criteria usually considered in motions of this nature: the explanation for the delay is reasonable; the applicant displayed a continuous intention to pursue the application; the application for leave and judicial review has merit; the respondent would not be prejudiced. Inexplicably, there is a perfunctory memorandum of fact and law in support of the motion.

There are merely statements that the four criteria are met. There is not even reference to the evidence filed, in the form of an affidavit to which material is appended " “ " " pêle- mêle ” " . Indeed some documents are photocopied twice.

Is included as part of the material the " “Memorandum of the applicants” " , dated May 6, 2019, which appears to be the memorandum of argument in support of the application for authorization and judicial review of a decision of the Refugee Appeal Division which agreed with the Refugee Protection Division that the applicants are neither refugees nor persons in need of protection. [ 3 ] The explanation for the missed deadline is to be found in an affidavit sworn by a student working in the applicants’ counsel’s office where she states that it was " “because of operational limitations in our office, the influx of work because of the influx of refugees to Manitoba and to our office and the need to process all work in a sequential and orderly manner” " .

We are told that four application records were due on April 29 last, together with an appeal record for an appeal from a decision of a prothonotary. The affidavit adds, for good measure, that the senior counsel was then overseas for work. " “He returned May 5th. This became the earliest time we could file this Record” " . [ 4 ] The Crown, understandably, took issue. Counsel noted that the applicants’ record was due by April 29, 2019, yet it is only on May 3 that applicants’ counsel wrote to the Court indicating that he would be filing a motion for extension a week later, on May 10.

May 10 came and went and no motion was filed. It is only on May 14 that the motion for extension of time was filed. As already noted, the motion was skeletal. [ 5 ] The respondent finds fault with three of the four criteria traditionally considered in motions for extension of time ( Canada (Attorney General) v Larkman , 2012 FCA 204 , at para 61 ): the intention to pursue the application must be evidenced by the applicant; the respondent contends that the failure for the applicants to offer the evidence of that intention is fatal; no explanation is given for the delay.

Workload and travel do not explain a delay from March 28, where the application for leave was filed, to May 14, when the motion record was finally filed. It was for the applicants to explain the whole delay; workload and busy schedules have been ruled by this Court not to constitute an appropriate or compelling explanation. Furthermore, the respondent complains that the date of May 5 referred to by the affiant as the earliest time a record could be filed was postponed by counsel to May 10; on that date, there was still no motion record, as it came as of the 14 th .

There were no meaningful details to explain the whole period: the respondent contends that it is fatal; there is nothing in the applicants’ submissions that addressed the merits of the application for leave. The respondent claims that it is improper to file the material one wishes to eventually file if an extension of time is granted as part of this motion record. That

was done in this case: the pages ought to be stricken from the record; I note that the respondent did not argue that it would suffer a prejudice if the motion is granted. [6] Applicants’ counsel produced a 27-paragraph reply. There is no doubt in my view that the reply ought to have been the initialmemorandum of argument. In effect, the applicants are in a way "“splitting their case”" by seeking to have the last word.

For the firsttime, they seek to address the four criteria. [7] While acknowledging the case law that shows a lack of sympathy for an explanation that come down to counsel’s workload (Lewis vCanada (Minister of Citizenship and Immigration), 2001 FCT 676), counsel for the applicants invokes his own workload as being theresult of "“an unexpected or unanticipated event”". Merely raising that other cases were due for action is the very definition of"“workload”".

The fact that he chose to give priority to an intervention on behalf of a client in a case does not explain why other clientswould have to suffer, with their case being dismissed for being out of time. The explanation for the delay is lacking. [8] The respondent points out that the record shows no evidence of a continuing intention to pursue by the applicants.

In what can onlybe characterized as a cavalier response, counsel retorts that "“there is nothing in the record to suggest a change in intention”". [9] It is certainly no less cavalier to respond to the requirement to show that the underlying judicial review application has merit that it isto be found in the record that was filed "“""pêle-mêle”" as part of the motion record. Counsel is presumptuous enough to try to turn theburden on its head, claiming that the respondent did not show that the case has no merit. Suffice it to state the obvious: the burden is thatof the applicants.

It is inappropriate to even suggest that the respondent had a burden to convince that the matter does not have merit. [10] This is not the first time this Court has to contend with this counsel’s cavalier approach to time extension. Madam Justice Stricklandhas to contend with an attitude very much reminiscent to what is encountered here. In Ibrahim v The Minister of Citizenship andImmigration, IMM-2507-18, September 7, 2018 [Ibrahim], she wrote: [5] Section 72(2)(

c) of the IRPA states that a Judge of this Court may, for special reasons, allow an extension of time forthe filing and serving of an Application for Leave and Judicial Review. There is no question that the extension is to begranted on an exceptional basis and that the party seeking an extension of time bears the burden of meeting the four part testas set out in Canada (Attorney General) v. Hennessy (1999), (FCA), 244 NR 399 (FCA).

Accordingly,there is also absolutely no merit to the Applicant’s position, taken in its Reply, that the reasons for the application for theextension of time “are self-evident in the Record”, that for the purposes of the leave application that the Court should“accept or assume” that the leave application has merit as this is “self-evident”, that the delay sought is short and therelevant dates are found in the Record without need for submissions and that the Respondent suffered no prejudice.

In short,the suggestion that the Applicant need not address the test because its record contains information that allegedly could beresponsive to it is just wrong. Counsel who take this approach put their clients’ interests at considerable risk. Nor is thereany merit in the Applicant’s view that Idu is not relevant in this matter as here he has not submitted and does not submit thatsame explanation for delay. The point of Idu was that a valid reason had not been provided for the requested extension oftime.

It is no answer to this criticism instead to provide no reason. [My emphasis.] [11] Madam Prothonotary Ring was equally forceful in Idu v The Minister of citizenship and Immigration, IMM-658-18, May 17, 2018[Idu], a case involving the same counsel. Here again, counsel invoked the case load. Prothonotary Ring wrote at paragraph 11 of herorder: [11] The sum total of the Applicants’ affidavit evidence as to the reasons for the delay is captured in one scanty paragraphof the Affidavit of Gentiana Morina sworn April 23, 2018 which states: 2.

The Record was not prepared earlier because of operational limitations in our office, the influx of workbecause of the influx of refugees to Manitoba and to our office and the need to process all work in a sequentialand orderly manner. [12] It is trite to say that counsel have obligations towards the Court. They also have obligations to serve their client properly. AsStrickland J. says in Ibrahim, "“(c)ounsel who take this approach put their clients’ interest at considerable risk”". Refugee claims areserious business.

Counsel have the faculty of not taking clients if they cannot service them properly, which includes abiding by thetimelines. In Idu, Prothonotary Ring admonished counsel: [15] However, I wish to impress upon counsel for the Applicants that the Court will not accept these wholly inadequateexplanations for the delay in the future.

Applications for leave in immigration matters are intended to proceed expeditiously.An applicant who fails to comply with the timelines set out in the Federal Courts Citizenship, Immigration and RefugeeProtection Rules must provide a good reason to deviate from these strict deadlines, including a proper explanation for thedelay based on proper affidavit evidence that sets out all of the facts to be relied upon by the applicant. [13] I am not ready at this stage, and on balance, to completely deprive innocent clients from having access to a judicial remedy if theyhave a reasonably arguable case to bring to Court.

That assessment cannot be made if an extension of time is not granted. It may be thatclients will be deemed to be put on notice in the future that their interests are at risk, now that three members of this Court in merely oneyear have expressed their significant concern at counsel’s failure to abide by the rules and timelines of this Court. It may be that there areother ways, including possibly the imposition of costs, to impress upon counsel his obligations. I can only hope that the situation will notpresent itself again.

ORDER in IMM-2077-19 THIS COURT ORDERS : 1 . An extension of time until June 18, 2019 is granted for the applicants to serve and file the application for leave and judicial review. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2077-19 STYLE OF CAUSE: GRUME TILAHUN AND AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: ROY J.

DATED: June 14, 2019 WRITTEN REPRESENTATIONS BY : David Matas For The ApplicantS Brendan Friesen For The Respondent SOLICITORS OF RECORD : Barrister & Solicitor Winnipeg, Manitoba For The ApplicantS Attorney General of Canada Winnipeg, Manitoba For The Respondent