Muhammed v. Canada (Minister of Citizenship and Immigration), 2003 FC 828

• Court: Federal Court (Canada)
• Case Date: June 26, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FC 828;(2003), 237 F.T.R. 8 (FC)

Muhammed v. Can. (M.C.I.) (2003), 237 F.T.R. 8 (FC)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. JL.049

Zeynup Muhammed and Huseyin Muhammed (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2547-03; 2003 FC 828)

Indexed As: Muhammed v. Canada (Minister of Citizenship and Immigration)

Federal Court

Hargrave, Prothonotary

July 3, 2003.

Summary:

The applicants applied for leave and judicial review after their unsuccessful immigration hearing. The applicants subsequently moved for an extension of time in which to file and serve the record.

A Prothonotary of the Federal Court granted the motion.

Aliens - Topic 4064.1

Practice - Judicial review and appeals - Filing of record (incl. extension of time for) - Following the applicants' unsuccessful immigration hearing, their counsel in Victoria filed an application for leave and judicial review - The applicants moved to Vancouver and retained new counsel there - A few days after the record should have been served and filed, the new counsel advised that he was unable to proceed with the case because of his workload and he asked another lawyer to take the file - That lawyer acted promptly in moving for an extension of time in which to file and serve the record - A Prothonotary of the Federal Court granted the motion - The Prothonotary considered the continuing intention to pursue the application; the merit of the application; the lack of prejudice to the respondent; the explanation for the delay and, particularly, that it was former counsel who deprived the applicants of their right by abandoning them after allowing time to run; and that to terminate the judicial review proceeding on the basis of the negligence or incompetence of former counsel would constitute a windfall to the Crown.

Cases Noticed:

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), refd to. [para. 5].

Canada (Attorney General) v. Hennelly (1995), 91 F.T.R. 317 (T.D.), refd to. [para. 5].

Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263; 63 N.R. 106 (F.C.A.), refd to. [para. 7].

Valyenegro v. Canada (Secretary of State) (1995), 88 F.T.R. 196 (T.D.), refd to. [para. 10].

Siba v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2001), 229 F.T.R. 161 (T.D.), consd. [para. 10].

Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 (T.D.), refd to. [para. 10].

Chin v. Minister of Employment and Immigration (1994), 69 F.T.R. 77 (T.D.), consd. [para. 14].

Frenkel et al. v. Canada (Minister of Citizenship and Immigration) (1998), 148 F.T.R. 8 (T.D. Protho.), refd to. [para. 17].

Shirwa v. Minister of Employment and Immigration (1994), 71 F.T.R. 136; 23 Imm. L.R.(2d) 123 (T.D.), refd to. [para. 18].

Mathon v. Ministre de l'Emploi et de l'Immigration (1988), 28 F.T.R. 217; 9 Imm. L.R. 132 (T.D.), folld. [para. 18].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 19].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321; 29 C.C.C.(2d) 189, refd to. [para. 19].

Counsel:

Moses Kajoba, for the applicants;

R. Keith Reimer, for the respondent.

Solicitors of Record:

Kajoba & Company, Vancouver, British Columbia, for the applicants;

Morris Rosenberg, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This motion was heard on June 26, 2003, at Vancouver, British Columbia, before Hargrave, Prothonotary, of the Federal Court, who delivered the following decision on July 3, 2003.