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.
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.