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The Minister of Manpower and Immigration (Applicant)
v.
Stilianos Zevlikaris (Respondent)
Court of Appeal, Jackett C.J.—Ottawa, Decem- ber 1, 1972.
Immigration—Appeal—Practice—Application for leave to appeal from decision of Immigration Appeal Board—Con- sent by respondent's solicitor—Insufficiency of—Immigra- tion Appeal Board Act, R.S.C. 1970, c. I-3, s. 23(1).
APPEAL from Immigration Appeal Board.
Federal Court Rule 324 (for applicant and respondent).
JACKETT C.J.—This is an application in writ ing under Rule 324 for an extension of time "within which an application for leave to appeal from the decision of the Immigration Appeal Board herein dated September 1, 1972 to the 15th day of December, 1972".
A copy of the Notice of Motion bearing an admission of service stamp with an indecipher able signature has been filed. A consent to an order "extending the time within which an application for leave to appeal from the deci sion of the Immigration Appeal Board herein dated September 1, 1972 to the 15th day of December, 1972" and signed in the same way over the typewritten name "Richard Trombin- ski" has also been filed. The consent describes Mr. Trombinski, whose name appears in the Canadian Law List for 1972 as a member of the Alberta Bar, as "Counsel" and "Solicitor" for the "Respondent". No other material has been filed in support of the application.
Section 23(1) of the Immigration Appeal Board Act, R.S. 1970, c. I-3, 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.
It is important to emphasize that an appeal to this Court from a decision of the Immigration Appeal Board is conditional on leave being "granted" by this Court within 15 days after the decision appealed from is pronounced or within such extended time as a judge may for "special reasons" allow.
While extensions of time are granted based on consents from time to time, such extensions have always been, in my experience, where the record shows that the delay required has been due to the time taken to obtain reasons for the Immigration Appeal Board judgment.
Here there is no material whatsoever to show "special reason" to grant to the Minister an extension of 3 months over and above the time allowed by Parliament to obtain leave to appeal from a judgment that, presumably, quashed a deportation order against the respondent.
Furthermore, there is nothing on the Court's file to show that the person who signed the consent has any mandate to act as solicitor or counsel for the respondent for the purpose of acquiescing in such an extraordinary extension of time. Presumably, he acted as counsel for the respondent before the Immigration Appeal Board. When judgment was given by that Board, that would be the end of that proceed ing. In the absence of special authority, and I know of none, a notice of appeal or a notice of motion for leave to appeal or for extension of time to appeal would have to be served on the respondent himself. Once a solicitor files a document on behalf of a respondent in this Court after an appeal has been launched, he becomes the solicitor of record and he may ordinarily be served instead of the party. In the case of the Minister, under the Department of Justice Act, R.S., 1970, c. J-2, the Attorney General of Canada is charged with the conduct of the matter on his behalf and service on the appropriate departmental officer is sufficient. Apart from those cases, or other cases specially provided for, unless a member of the bar, by
writing duly filed in the Court or by oral state ment in open court, states that he has a mandate in the particular matter, I have grave doubts that the Court should act on a consent filed by him even if a consent by itself would be suffi cient in the circumstances.
Finally it should be noted that there is an obvious lack of appreciation, shown in the prep aration of the documents, of the effect of sec tion 23(1). That section fixes a time within which leave may be granted. That is the time within which a Court consisting of three judges may make an order granting leave. The consent filed refers to the time for making an applica tion for leave, which is the time when a motion is presented in open court or by way of a motion in writing under Rule 324. The draft order submitted would extend the time to file an application for leave to appeal, which, in the case of a motion to be returned in open court, is not the time when an application is made.
The application is dismissed but without pre judice to the applicant's right to make a new application.
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