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Between
Patricia Cove, applicant,
and
The Minister of Citizenship and Immigration, respondent
[2001] F.C.J. No. 482
2001 FCT 266
Docket IMM-934-01
Federal Court of Canada
Ottawa, Ontario
Justice Pelletier
March 30, 2001.
Counsel:
Glenn E. Matthews, for the applicant.
Ian Hicks, for the respondent. |
» 1 Justice
PELLETIER (Reasons for Order and Order):- This is an application
for an extension of time within which to bring an application for
judicial review of a visa officer's decision rejecting the applicant's
request for a visa. It is somewhat out of the ordinary
in that the applicant's problems are attributable
to her immigration consultant who delayed taking action on the applicant's
file until the limitation period found in the Federal Court
Act, R.S.C. 1985 c. F-7 had nearly expired. Even then,
the consultant did not provide the lawyer he appears to have retained,
the information required to prepare the Notice of Application. A
reader of these reasons might suspect that the applicant is in reduced
circumstances and is in difficulty because she cannot afford to
retain legal representation. The file material discloses
that the applicant and her husband have approximately $675,000 in
assets which they can bring to Canada. Furthermore, the
applicant and her husband are residents of the United Kingdom so
that the problem is not the lack of access to resources. The
immigration consultant in question carries on business in the United
Kingdom but uses the designation OPIC which, among other possibilities,
could stand for Organization of Professional Immigration
Consultants which is, to my knowledge, a Canadian designation.
» 2 The chronology
of events, briefly stated, is that on January 9, 2001, the Canadian
High Commission wrote to the applicant in the care of her consultant
to say that her visa application was refused. The consultant received
the refusal on January 17, 2001. Because no leave is
required to apply for judicial review of a visa officer's decision,
there is a period of 30 days from the date of notification within
which to make the application. If leave were required,
the application for leave would have to be made within 15 days of
notice being received. On January 29, 2001, some 12 days
after receiving notice of the decision, the consultant wrote requesting
reconsideration. On February 13, 2001, some 26 days after
notice was received, the consultant contacted a law firm in Windsor,
Ontario to prepare the application for judicial review. Counsel
advises that he was not provided with the necessary information
to prepare the application, so he began to prepare the application
for an extension of time which was filed in the Federal Court, in
Toronto, on February 27, 2001.
» 3 What is the
significance of these facts for the applicant's request for an extension
of time to bring her application for judicial review? The
significance arises from the argument made in favour of granting
the applicant the extension of time which she seeks. It
is said, first of all, that she was not represented by a lawyer. It
is said that when her consultant chose to write to the High Commission
requesting reconsideration, instead of proceeding to file an application
for judicial review, the applicant trusted and accepted the strategy
of her consultant. The blame for the delay in
instructing a law firm to file the application for judicial review
is laid at the feet of the consultant.
» 4 One of the
elements of the test for granting an extension of time is that the
failure to commence the application in a timely manner must be explained. The
explanation offered is that the consultant failed to properly discharge
his obligations, a fact which, implicitly, the Court is urged not
to hold against the applicant. The material is silent
on the two-week delay in filing the application for an extension
of time.
» 5 The applicant
is fully entitled to entrust her immigration problems to an immigration
consultant rather than to a member of the immigration bar (qualified
lawyer). It may be that, in doing so, she saved some
fees, but perhaps not. She is also fully entitled to
take her immigration consultant's advice on the steps to be taken
in pursuing her claim. But the applicant runs into difficulty
when she suggests that she ought to receive a dispensation from
the rules because she was not represented by a lawyer and received
bad advice.
» 6 It is a fact
that, generally speaking, applicants will be held to the consequences
of their choice of advisor even when that advisor is a lawyer. Madam
Justice Reed put it this way in Williams v. Canada (Minister of
Employment and Immigration), [1994] F.C.J No. 258, (1994) 74 F.T.R.
34:
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[20] ...The general rule, in the courts, is that a client
is considered to have authorized and be bound by the representations
made on his or her behalf by counsel. The system cannot operate
if this is not so. In my view, to grant a stay
in circumstances where the only prejudice the applicant can
demonstrate is that he may or may not have grounds for judicial
review, but does not know because his former counsel did not
properly prepare his case, would create an unworkable precedent. It
is the professional accreditation bodies, such as the Law
Society, not the courts, which have the mandate to regulate
the professional performance of their members. |
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» 7 In Drummond
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J.
No. 477, (1996), 112 F.T.R. 33, Rothstein J. (as he then was) identified
an exception to the principle enunciated by Reed J.:
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However, in extraordinary cases, competency of counsel may
give rise to a natural justice issue. In such cases,
the facts must be specific and clearly proven; see Sheikh
v. Canada (1990), 71 D.L.R. (4th) 604 (F.C.A.);
Huynh v. M.E.I. (1993), 21 Imm. L.R. (2d) 18 (F.C.T.D.);
and Shirwa v. M.E.I. (1993), 23 Imm. L.R. (2d)
123 (F.C.T.D.). |
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» 8 These facts
do not raise any issue of denial of natural justice.
» 9 If the applicant
were in these straits because of her lawyer's error, that error
would be held against her. Why should the errors of her
consultants not be held against her? To accept this argument would
create a positive incentive for individuals to use consultants in
preference to lawyers so that if things went badly, relief could
be obtained by blaming the inadequacy of the consultant. This
is not conducive to a rational use of legal and judicial resources.
» 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.
» 11 It is not
for this Court to decide who clients can consult about their immigration
problems. If there were not a need and a demand for immigration
consultants, they would not exist. But it is equally
not for this Court to disadvantage its own officers (lawyers)
by applying a different standard to those who would displace
them.
» 12 In the end
result, I am not persuaded that the explanation offered for the
delay entitles the applicant to the relief she seeks.
» 13 The application
for an extension of time is dismissed.
ORDER
For the reasons stated above, the application for
an extension of time is hereby dismissed.
PELLETIER J. |
