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Minister of Manpower and Immigration (Appel- lant) (Petitioner)
v.
Marie-Esther Coulanges -Cloutier (Respondent)
Trial Division, Walsh J.—Montreal, September 25; Ottawa, September 29, 1972.
Practice—Immigration—Failure to appeal from Immigra tion Appeal Board within 15 days—Delay due to negligence of the secretary of the counsel to the Minister—Whether "special reasons " for extension—Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 23(1).
The Minister did not apply for leave to appeal from a decision of the Immigration Appeal Board until one month after it was given. The application should have been launched within 15 days but the secretary of the counsel to the Minister failed to bring the matter to counsel's attention.
Held, while the secretary's negligence might not consti tute "special reasons" for the delay within the meaning of section 23(1) of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, the Minister should have an extension of time for the appeal on terms.
MOTION.
A. Nadon for appellant.
W. Morris for respondent.
WALSH J.—Appellant-petitioner asks for a prolongation of the delays to appeal the deci sion of the Immigration Appeal Board herein for a period of sixty days following receipt by the appellant-petitioner of the motives on which the decision of the Immigration Appeal Board was based. Although there is nothing in the file before me but the petition, it was represented by counsel for petitioner that a decision adverse to the Minister had been rendered on August 22, 1972. Although a decision had previously been made that in the event of an adverse decision an appeal would be taken, he was away on vacation when the decision of the Immigra tion Appeal Board was made and it was put in the file by his secretary and overlooked until the date of his petition which was produced on September 22, 1972. Section 23 of the Immi gration Appeal Board Act, R.S.C. 1970, c. I-3, as amended by the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 65 (Item 18) reads as follows:
23. (1) An appeal lies to the Federal Court of Appeal on any question of law, including a question of jurisdiction, from a decision of the Board on an appeal under this Act if leave to appeal is granted by that Court within fifteen days after the decision appealed from is pronounced or within such extended time as a judge of that Court may, for special reasons allow.
The application for leave to appeal should therefore have been brought within fifteen days after August 22, unless the Court extends this "for special reasons". Section 7(3) of the Immi gration Appeal Board Act provides that:
(3) The Board may, and at the request of either of the parties to the appeal shall, give reasons for its disposition of the appeal.
While there is nothing in the record to show when counsel for petitioner requested the Immi gration Appeal Board to give its reasons for its decision of August 22, 1972, it would appear that this could not have been long before the presentation of the present petition since his reasons for the delay in presenting the present petition was that he had only just become aware that a decision had been rendered by the Immi gration Appeal Board.
While I have some doubt as to whether negli gence of an attorney or his office staff should be considered as constituting a "special reason" for not seeking leave to appeal within fifteen days after the decision appealed from, it is reasonable to assume that the petitioner must consider that he has serious reasons for desiring to appeal the decision in question, and on the other hand the respondent, having succeeded before the Immigration Appeal Board is not in any danger of immediate deportation, and while she of course suffers some prejudice if permis sion is now given the petitioner to appeal after the delays to do same have expired, this preju dice may be less serious than that which might be suffered by the petitioner if he has, in fact, good and sufficient grounds for an appeal and is prevented by an oversight from having the matter heard and determined on the merits by the Court of Appeal. I am therefore disposed to grant the petition but only in the following terms:
1. The delay will be extended only for a period of fifteen days following the receipt by petitioner of the reasons for the decision of the Immigration Appeal Board.
2. The costs of this petition shall be against the petitioner in any event of the cause.
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