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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.