85-A-55
Tarsem Singh Grewal (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Mahoney and
Marceau JJ.—Vancouver, October 8; Ottawa,
November 18, 1985.
Practice — Extension of time — Application for extension
of time to bring application to review and set aside decision of
Immigration Appeal Board, refusing application for redeter-
mination of refugee status — S. 28(2) of Federal Court Act
limiting time to 10 days from notice of decision or such further
time as Court may allow — No evidence of intention to apply
for review until five months after expiry of limitation period
when Supreme Court of Canada pronounced decision in Singh
et al. v. Minister of Employment and Immigration, [1985] 1
S.C.R. 177 — Application allowed — Principles in Consum
ers' Ass'n (Can.) v. Ontario Hydro [No. 2[, [1974] 1 F.C. 460
(C.A.) applied — Arguable case for setting aside Board's
decision in light of Singh decision declaring Immigration Act,
1976 s. 71(1) procedure inconsistent with principles of funda
mental justice — Whether explanation justifying extension
depending upon facts of case — Explanation that unaware of
review procedure, or of basis on which to attack decision until
Singh decision, tenuous but acceptable — Applicant not indif
ferent to or recklessly disregarding rights — No prejudice to
respondent — Board's decision affecting present and future
status — Justice requiring Board's decision, made without
oral hearing, be set aside — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28(2),(5) — Federal Court Rules, C.R.C.,
c. 663, RR. 324, 1107 — Immigration Act, 1976, S.C. 1976-
77, c. 52, ss. 45, 71(1) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 24 — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, s. 2(e).
Immigration — Practice — Application for extension of
time to apply for review of Board's decision refusing applica
tion for redetermination of refugee status — Five months
elapsing between expiry of limitation period prescribed by s.
28(2), Federal Court Act, and first possible intention to apply
for review — Supreme Court of Canada declaring Immigra
tion Act, 1976, s. 71(1) procedure inconsistent with principles
of fundamental justice — Arguable case for setting aside
Board's decision — Principles in Consumers' Ass'n (Can.) v.
Ontario Hydro [No. 2], [1974] 1 F.C. 460 (C.A.) applied —
Application allowed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28(2),(5) — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 45, 71(1).
This is an application for an extension of time to bring an
application to review and set aside a decision of the Immigra
tion Appeal Board, refusing to allow an application for redeter-
mination of the applicant's claim for Convention-refugee status
to proceed, and determining that he was not a Convention
refugee. Subsection 28(2) of the Federal Court Act limits the
time for bringing such an application to 10 days from the notice
of the Board's decision or such further time as the Court may
allow. The application was brought 11 months after the expiry
of the time prescribed by subsection 28(2), and five months
after the pronouncement of the Supreme Court of Canada
decision in Singh et al. v. Minister of Employment and Immi
gration, [1985] 1 S.C.R. 177, declaring the procedure in sub
section 71(1) of the Immigration Act, 1976 inoperative as
inconsistent with the principles of fundamental justice. The
inquiry was resumed and a deportation order was issued against
the applicant. The application to review and set aside that order
was adjourned, the Court ruling that the decision of the Board
could not be attacked collaterally in the proceeding. The appli
cant swears that since he learned that he was determined not to
be a Convention refugee, he wished to have a redetermination
of that status, but he was unaware of the limitation period for
appealing.
Held, the application should be allowed.
Per Thurlow C.J. (Mahoney J. concurring): The applicant
had, at least from the time the application to review and set
aside the deportation order was before the Court, a firm
intention to apply for review of the Board's decision. It may be
that such an intention existed from the time the applicant's
counsel first became aware of the Singh decision, in which case
there is a period of at least five months in respect of which it is
not established that the applicant intended to apply for review.
Section 28 review is to be as speedy as possible. It is not
intended as a means of delaying action on a decision, as is clear
from the short 10-day period in which a party seeking such
review is to apply. The authority to grant extensions conferred
by subsection 28(2) is unrestricted, although it must not be
exercised arbitrarily or capriciously and the limitation period
should be extended only when there are sound reasons for doing
so. In Consumers' Ass'n (Can.) v. Ontario Hydro [No. 21,
[1974] 1 F.C. 460 (C.A.) it was held that an extension of time
is not granted unless there is material to satisfy the Court that,
not only is there some justification for not having brought the
application within the 10-day period, but also that the
impugned order is arguably within section 28, and that there is
an arguable case for setting aside the order or decision that is
the subject-matter of the application. The underlying consider
ation is whether, in the circumstances, to do justice between the
parties calls for granting the extension. The principle to be
drawn from two British Court of Appeal cases is that the time
elapsed from the pronouncing of the judgment to the time when
the earlier jurisprudence on which it was based was held to be
erroneous was sufficiently explained because, in the circum
stances, the litigant was not aware of his right and could not be
expected to take action to enforce it. The lapse of time after
wards was excused because the judgment affected and would
continue to affect the future rights of the parties inter se.
Justice required that the extensions be granted with respect to
the future rights, though not to undo what had already been
done under the judgment.
The Board's decision is subject to review. Also, the applicant
has an arguable case for setting aside the Board's decision in
light of the Singh case. Whether or not the explanation justifies
the extension depends upon the facts of the particuliar case.
The applicant's evidence that he did not know of the review
procedure, or of any legal basis for attacking the Board's
decision until he learned of the Singh decision, is credible. On
that basis, he did what might reasonably be expected of a
person seeking refugee status. His lack of action for the month
between receipt of notice of the Board's decision and the time
when, on receiving a notice to appear for resumption of the
inquiry, he engaged counsel, does not indicate that he was
indifferent to his rights or abandoned or recklessly disregarded
them. The explanation is tenuous, but acceptable. Finally, no
prejudice to the respondent will result from granting the exten
sion. The Board's decision determines not only the applicant's
present status, but determines it for the future so long as the
applicant remains in Canada. Justice requires that the Board's
decision, made without an oral hearing, be set aside.
The argument, that because so fundamental a right was
denied, a satisfactory explanation for the delay was unneces
sary, was not dealt with, except to express doubt as to the
soundness of a position that would effectively abolish the time
limit for all such cases, without regard to the principle that at
some stage a court's judgment must become final.
Per Marceau J.: The general principles for dealing with
matters of this type are not directly applicable in this case, or
are applicable only if its unique features are considered. The
deportation order was the immediate and necessary conse
quence of the Board's decision, which was made in contraven
tion of the supreme laws of Canada. This Court is certainly one
to which the applicant may apply to seek the relief he appears
to be entitled to under subsection 24(1) of the Charter. In this
context, the Court's discretion does not remain as unfettered
and unrestricted as it normally is. In any case, the general
principles, when applied to the unique circumstances of cases of
this type do not warrant a refusal to grant the applicant's
request. Only if the ultimate search for justice, in the circum
stances of a case, appears to prevail over the necessity of setting
the parties' rights to rest, will leave to appeal out of time be
granted. Hence the requirement to consider the various factors.
In order to properly evaluate the situation and draw a valid
conclusion, a balancing of the factors is essential. For example,
a compelling explanation for the delay may counterbalance a
weak case against judgment, and a strong case may counterbal
ance a less satisfactory justification for the delay. Considering
the fundamental nature of the right involved, the effect of the
impugned decision, which is the issuance of a deportation order,
the fact that the deportation order has not yet been executed,
that the decision sought to be set aside was not only arguably
wrong, but was clearly and definitely made in breach of the
fundamental laws of the land, whether or not justification for
the delay was shown, loses much of its significance. At no time
did the applicant acquiesce in the Board's decision, or abandon
his resolution to fight against its effect. This is sufficient to
warrant an extension of time.
CASES JUDICIALLY CONSIDERED
APPLIED:
Consumers' Ass'n (Can.) v. Ontario Hydro [No. 2],
[1974] 1 F.C. 460 (C.A.); R. v. Toronto Magistrate's, Ex
p. Tank Truck Transport Ltd., [1960] O.W.N. 549
(CA.); Berkeley, Re, Borrer v. Berkeley, [1944] 2 All
E.R. 395 (C.A.); Property and Reversionary Investment
Corpn Ltd v Templar, [1978] 2 All ER 433 (C.A.);
McGill v. Minister of National Revenue, judgment dated
September 16, 1985, Federal Court, Appeal Division,
A-876-84, not yet reported.
DISTINGUISHED:
Kukan v. Minister of Manpower and Immigration,
[ 1974] 1 F.C. 12 (C.A.); Minister of Manpower and
Immigration v. Zevlikaris, [1973] F.C. 92 (C.A.); Beaver
v. The Queen (Motion), [1957] S.C.R. 119; Cotroni v.
The Queen, [1961] S.C.R. 335.
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] I S.C.R. 177; Palata Investments Ltd v Burt
& Sinfield Ltd, [1985] 2 All ER 517 (C.A.).
COUNSEL:
B. Rory B. Morahan for applicant.
G. Carscadden for respondent.
SOLICITORS:
B. Rory B. Morahan, Victoria, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
THURLOW C.J.: The applicant seeks an exten
sion of time to bring an application to review and
set aside a decision of the Immigration Appeal
Board which refused to allow his application for
redetermination of his claim for Convention-
refugee status to proceed and determined that he is
not a Convention refugee.
The decision of the Immigration Appeal Board
was pronounced on October 24, 1984. The appli
cant had notice of it by October 27, 1984. The
time for filing an application to review it thus
expired on November 6, 1984. The application to
extend the time was made on October 8, 1985.
In the meantime, on November 27, 1984, an
inquiry under the Immigration Act, 1976 [S.C.
1976-77, c. 52], which had been commenced on
July 9, 1982, and had been adjourned under sec
tion 45 of that Act to permit the applicant's claim
for Convention-refugee status to be determined,
was resumed and resulted in a deportation order
being made against the applicant.
The affidavit of the applicant filed in support of
this application, after setting out matters relating
to the inquiry and examination under oath and the
receipt of a letter from the Refugee Status Adviso
ry Committee advising him that it had been deter
mined that he was not a Convention refugee,
continued:
7. I immediately appealed the said determination by my coun
sel Mr. Schmaling, and subsequently received notification
dated the 24th day of October, 1984 from the Immigration
Appeal Board attached hereto and marked Exhibit "B" to this
my Affidavit, that my application under Section 71(1) of the
Immigration Act was refused to allow to proceed and that I
was determined not to be a convention refugee.
8. That after to [sic] the determination received from the
Immigration Appeal Board, my retainer with counsel had
ended.
9. That subsequent to receiving the notification, I received a
letter notifying me that the hearing which was adjourned on the
9th of July, 1982 was to continue on the 27th day of November,
1984.
10. That on receiving this letter, I attended the offices of my
present counsel and indicated that I wished him to appear on
that date to represent me.
11. When I attended the offices of my counsel, the appeal
period for redetermination of my refugee status had expired,
though at all times since I had found out that I was determined
not to be a convention refugee, I wished to have a redetermina-
tion of that status.
12. It was determined that certain procedures may not have
been complied with so I attended to the continuation of the
inquiry in the hope that the inquiry would be determined to be
in contravention of the Charter, and with the hope that we
could go back before the Refugee Status Advisory Committee.
13. I instructed my counsel to make it perfectly clear at the
continuation of the inquiry that I wished to make re-application
to the Advisory Committee and he so stated in the hearing.
14. That on being advised that I would be deported at the
continuation of the hearing on the 27th of November, 1984, I
instructed my counsel to appeal, which he so did within the
limitation period.
15. At the time when we appealed the hearing of November
27th, 1984, it was my intention to attempt to have both the
inquiry and the order of the Immigration Appeal Board
quashed.
16. The only reason why I did not file the Notice of Appeal in
respect of the determination that I was not a convention
refugee was that I had changed counsel and had not previously
been advised as to the limitation dates of appeal in respect of
the Appeal Board decision.
17. That because'I had made a Section 28 Originating Notice
to the inquiry, I thought I had complied with all the necessary
requirements to attack the refugee status and the inquiry as a
whole.
18. That at all times since July 2nd, 1982, I have continued to
believe that I am a convention refugee and I have at all times
wished to have that status bestowed upon me and would at all
times make any actions that would allow that status to be
bestowed on me.
19. In respect of the appeal to the Immigration Appeal Board
to have a redetermination of my refugee status, I did not testify
in front of the Immigration Appeal Board, and it is my belief
that the principles of natural justice as enunciated in Section 7
of the Canadian Charter of Rights and Freedoms and the right
to a fair hearing in accordance with the principles of fundamen
tal justice as enunciated in Section 2(e) of the Canadian Bill of
Rights were violated.
The record of the inquiry held on July 9, 1982,
and resumed on November 27, 1984 is also before
the Court on this application. On the latter occa
sion the applicant was represented by legal counsel
who sought to have the matter referred to the
Refugee Status Advisory Committee for the pur
pose of producing before it evidence of events
which occurred in India after the applicant's
examination which he considered would add sup
port for the claim. No mention was made of any
intention by the applicant or his counsel to seek a
review under section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] of the decision of
the Immigration Appeal Board. Counsel did, how
ever, in the course of his argument, make a sub
mission that as he was unable to obtain reasons for
the Board's decision, the applicant's rights under
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
were being violated.
The making of the deportation order on Novem-
ber 27, 1984, was followed by the filing of an
application under section 28 of the Federal Court
Act to review the order and set it aside. That
application came on for hearing on June 18, 1985
when, as we were informed, the Court ruled that
the decision of the Immigration Appeal Board
could not be attacked collaterally in that proceed
ing and, at the request of applicant's counsel,
adjourned the hearing to give the applicant an
opportunity to apply within the next ten days for
an extension of time to bring an application to
review and set aside the Board's decision. The
order stated that the Court did not express any
opinion on the question whether or not the applica
tion for an extension of time should be granted.
The application was not, however, brought within
the ten days since counsel declined to proceed
under Rule 324 [Federal Court Rules, C.R.C., c.
663] as contemplated by Rule 1107 and instead
requested an oral hearing which, following some
correspondence, was eventually granted.
In light of that request it may be taken that the
applicant and his counsel have had, at least from
the time when the application to review and set
aside the deportation order was before the Court
on June 18, 1985, a firm intention to bring a
section 28 application to review the Immigration
Appeal Board decision and that there has been no
abandonment of that intention in the meantime.
It may be that such an intention existed as well
from the time when applicant's counsel first
became aware of the decision of the Supreme
Court of Canada in the Harbhajan Singh' case
pronounced on April 4, 1985 and that the appli
cant's counsel thought that the attack could be
made collaterally in the application to review and
set aside the deportation order. But, as no such
application or no application to extend the time to
bring such an application was made, in my opin
ion, it is highly unlikely that such an intention on
the part of the applicant or his counsel existed at
any earlier time. There is thus a period of some
five months, from October 27, 1984 to April 4,
1985 and quite possibly somewhat longer, in
respect of which it is not established that the
applicant or his counsel had such an intention.
In the Singh case the Supreme Court set aside a
decision of the Immigration Appeal Board and
referred the matter back to the Board for redeter-
mination after a hearing in accordance with princi
ples of fundamental justice, three of the Judges
holding that the procedure of subsection 71(1) of
the Immigration Act, 1976 which the Board had
followed, and which it followed in this case as well,
in the circumstances violated the appellants' rights
under the Canadian Charter of Rights and Free
doms and the other three Judges holding that the
procedures violated the appellants' rights under
paragraph 2(e) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III].
The statutory provision under which the exten
sion of time is sought is subsection 28 (2) of the
Federal Court Act. It provides with respect to a
review application under subsection 28(1) that:
28....
(2) Any such application may be made by the Attorney
General of Canada or any party directly affected by the
' Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177.
decision or order by filing a notice of the application in the
Court within ten days of the time the decision or order was first
communicated to the office of the Deputy Attorney General of
Canada or to that party by the board, commission or other
tribunal, or within such further time as the Court of Appeal or
a judge thereof may, either before or after the expiry of those
ten days, fix or allow.
This is one of the provisions of the Act which
establishes and affords a direct avenue to the
Federal Court of Appeal for the review on legal
grounds of decisions of federal boards, commis
sions or tribunals when no appeal from the deci
sion is provided by law. But it is clear that such
review is to be as speedy as possible and that it is
not intended by the Act to afford anyone a means
of delaying action on a decision. That is the mes
sage to be taken from the rather short 10-day
period in which a party seeking such a review is to
apply. The message also appears in subsection
28(5) which requires the application to be heard
and determined without delay and in a summary
way. Recognizing, however, that the 10-day period
is short and may in some instances be inadequate,
the legislation has conferred on the court authority
to extend it.
As conferred, the authority is unrestricted. In
particular it is not restricted by wording such as
"for special reasons" which appeared in the statu
tory provisions considered in Kukan v. Minister of
Manpower and Immigration,' Minister of Man
power and Immigration v. Zevlikaris, 3 Beaver v.
The Queen (Motion)," and Cotroni v. The Queen.'
On the other hand it goes without saying that the
authority must not be exercised arbitrarily or
capriciously and that the 10-day period should be
extended only when there are sound reasons for
doing so.
In Consumers' Ass'n (Can.) v. Ontario Hydro
[No. 21, 6 Jackett C.J. said of this provision:
2 [1974] 1 F.C. 12 (C.A.).
3 [1973] F.C. 92 (C.A.).
[1957] S.C.R. 119.
5 [1961] S.C.R. 335.
6 [1974] 1 F.C. 460 (C.A.), at p. 463.
Section 28(1) gives to this Court jurisdiction to set aside
certain decisions and orders made by federal boards, commis
sions and other tribunals upon any of the grounds therein
defined. Section 28(2) requires that a section 28 application be
made by the Attorney General of Canada "or any party
directly affected by the decision or order" within ten days of
the time the decision or order was first communicated to him,
which period may be extended.
An extension of the time for a section 28 application is not
made unless there is some material before the Court from
which the Court can satisfy itself, not only that there is some
justification for not bringing the application within the 10 day
period, but also
(a) that the order or decision that is the subject matter of the
proposed section 28 application is at least arguably within
section 28, and
(b) that there is an arguable case for setting aside the order
or decision that is the subject matter of the application on
one of the grounds envisaged by section 28.
The Court has consistently taken the position that it does not
extend the time for making a section 28 application where the
application, if made in time, would be struck out under section
52(a) of the Federal Court Act.
The underlying consideration, however, which,
as it seems to me, must be borne in mind in
dealing with any application of this kind, is wheth
er, in the circumstances presented, to do justice
between the parties calls for the grant of the
extension. In R. v. Toronto Magistrate's, Ex p.
Tank Truck Transport Ltd.,' McGillivray J.A.
discussed the question as follows in a case where
the application for extension was made two months
after the time for appealing expired:
The explanation given for this delay was that, while the taking
of an appeal had been decided, the question of how that appeal
would be financed took some time to settle and thereafter an
attempt had been made to obtain an extension of time by
consent and it was not until 9th November that consent to an
extension was finally refused and thereafter, 11th November,
this motion was launched.
One element to be established by the intending appellant in
order to obtain leave was that he had a bona fide intention to
appeal within the prescribed time: Smith v. Hunt (1902), 5
O.L.R. 97, Can. Wool Co. v. Brampton Knitting Mills, [1954]
O.W.N. 867, Re Blair & Weston, [1959] O.W.N. 368. This
had been referred to as the basic rule to be observed when
dealing with an application for leave to extend the time.
However, in both the Smith ca.e and the Blair case the Court
proceeded on other grounds as well and it could therefore be
stated that the question of bona fide intention while important
was but one of the matters to be considered and the cases cited
did not in fact conflict with the statements made in other cases
7 [1960] O.W.N. 549 (C.A.), at pages 549-550.
that the paramount consideration must always be that justice
be done: Sinclair v. Ridout, [1955] O.W.N. 635, Can. Heating
& Vent. Co. v. T. Eaton Co. (1916), 41 O.L.R. 150, Re Irvine
(1928), 61 O.L.R. 642, Kettle v. Jack, [1947] O.W.N. 267.
While these latter cases showed that no precise rules could be
laid down as to the exact circumstances which called for the
exercise of the discretion of the Court the underlying principle
to be extracted from them was that an extension of time for
appeal should be granted if justice required it. In the case at
bar the appeal while not of general interest affected those
employees of firms and the firms themselves, of whom there
must be a number, who did not restrict their trucking activities
to within the Province and in view of these facts and the fact
that an important point of constitutional law was involved the
proposed appeal was not without merit. It also seemed apparent
that the informant who was not directly responsible for the
delay might suffer prejudice if leave be not granted.
With reluctance therefore, he had concluded that, in order
that no injustice occur, he should exercise his discretion in
favour of the informant and grant the necessary extension of
time to appeal.
Some light on when justice may be considered to
require the grant of an extension is I think to be
found in two cases decided by the Court of Appeal
in England. In both cases judgments based on
earlier jurisprudence had been pronounced and
after the time for appealing had expired the earlier
jurisprudence was held to be erroneous.
In the first of these cases, Berkeley, Re, Borrer
v. Berkeley,' the rights of a remainderman were
adversely affected by a judgment at trial level,
pronounced on May 19, 1943. The Trial Judge
followed an earlier judgment also given at the trial
level. Subsequently, on May 15, 1944, the judg
ment in that case was held by the Court of Appeal
to be erroneous. The remainderman applied on
October 16, 1944, that is to say some seventeen
months after the judgment against him and some
five months after the judgment of the Court of
Appeal in the other case, for an extension of time
to appeal. Some payments of an annuity in accord
ance with the judgment had already become due
and had been paid. If continued they would ulti
mately exhaust the estate. As well, certain persons
who could also be interested in the estate had not
been made parties to the proceeding in which the
judgment had been given and would not be bound
8 [1944] 2 All E.R. 395 (C.A.).
by it. In these circumstances, Lord Greene, M.R.,
said [at page 397]:
It seems to me that the principle to be extracted is this. It is
not sufficient for a party to come to the court and say: "A
subsequent decision of a superior court has said that the
principle of law on which my case was decided was wrong."
The court will immediately say to him: "That bald statement is
not enough for you. What are the circumstances? What are the
facts? What is the nature of the judgment? Who are the parties
affected? What, if anything, has been done under it?" In other
words, the whole of the circumstances must be looked at. If the
court, in the light of those circumstances, considers it just to
extend the time, then it will do so. That seems to me to be the
proper principle, and it is entirely in accordance with the view
taken by this court in Gatti v. Shoosmith, the most recent case
under this rule.
Taking all the circumstances of this case into consideration,
namely, the fact that the rights of the parties not before Cohen,
J., are unaffected by his order: the fact that beyond mere
payment down to date nothing has been done: the fact that no
inquiries have been pursued: the circumstance that this dourt
has declared the law to be different to what it was thought to
be—putting all those facts together, the case appears to me to
be clearly one where, in the interests of justice, leave ought to
be given.
Counsel for the applicant does not seek and, indeed, could
not properly seek, to disturb any payments which have been
made, and the order giving leave will recite that he does not
seek to disturb those matters.
Subject to that, the case is one in which, in my opinion, the
interests of justice demand that leave should be given, and it
will be given accordingly.
The facts in the other case, Property and Rever-
sionary Investment Corpn Ltd v Templar 9 appear
from the headnote [at page 433]:
The landlords granted the tenants a lease of property for 21
years from 25th March 1965 at an initial yearly rent of £1,656.
The lease entitled the landlords periodically to seek a rent
review and laid down the procedure to be taken to entitle them
to such a review. In 1972 the landlords brought an action
against the tenants claiming a rent increase in accordance with
the review provisions of the lease. On 1st November 1974 the
judge dismissed the action on the ground that on the true
construction of the lease time was of the essence of the rent
review clauses and as the landlords had failed to comply with
certain procedural steps within the time prescribed by those
clauses they had lost their entitlement to a rent review. That
decision was in accordance with decisions in the Court of
Appeal. However on 23rd March 1977 the House of Lords
9 [1978] 2 All ER 433 (C.A.).
decided that those decisions were erroneous and that the pre
sumption was that time was not of the essence in a rent review
clause. The parties were agreed that if the landlords were
allowed to appeal to the Court of Appeal against the judge's
decision it would, in the light of the decision in the House of
Lords, be held to be wrong. In June 1977 the landlords applied
to the Court of Appeal for leave to appeal against the judge's
decision out of time contending that the contractual relation
ship of the parties under the lease ought not to be governed by
a decision which the parties were agreed was erroneous. The
tenants opposed the application and contended that the land
lords should receive only the initial yearly rent until the next
rent review could be invoked in 1979, but undertook that when
the next rent review was invoked they would not plead issue
estoppel and would accept that the landlords would then be
entitled to claim a rent review in accordance with the House of
Lords' decision.
Roskill L.J., after referring to the Berkeley case,
said [at pages 435-436]:
It is therefore plain that it is not enough for counsel for the
landlords to say that the recent decision of the House of Lords
clearly shows that Judge Fay's decision was wrong. He must
show there are special reasons why he should be allowed to
argue that the judgment should not stand.
At one point he sought to contend that the landlords might
be in a difficult position when next the rent review clause could
be invoked in 1979 and said that notwithstanding the decision
of the House of Lords, they would be bound to comply with
Judge Fay's judgment, there being, as he contended, issue
estoppel between the parties. Counsel for the tenants did not
accept that, and indeed offered an undertaking that no question
of issue estoppel would be raised in 1979 and that the tenants
would accept that the landlords would be then entitled to base
their claim for rent review in accordance with the decisions of
the House of Lords.
We cannot speculate as to the future. The real point here, as
counsel for the landlords ultimately accepted, is whether it is
right that these parties should have this continuing contractual
relationship governed by a lease the terms of which have
assumedly been erroneously construed in the court below.
I think that notwithstanding counsel for the tenants' submis
sions that the landlords should be left to receive the lower rent
for the next 18 months or so and thereafter become entitled to
claim the higher rent in accordance with the House of Lords
decision, there are special circumstances which justify leave to
appeal out of time.
Counsel for the landlords, very properly in the light of Re
Berkeley, accepted that he could not claim any new rent
retrospectively, even if the appeal out of time ultimately suc
ceeded. That is clearly right, and on his undertaking not to
claim any increased rent if the appeal succeeds before any date
before Midsummer Day next, I take the view that leave to
appeal out of time should be given, and accordingly I would
allow the motion.
It may be noted that in both these cases the
extension was granted notwithstanding the pecuni
ary interest of the opposing party in retaining the
judgment and that in both cases there had been
not only a substantial time between the judgment
and the application for the extension but also
between the time when the earlier jurisprudence
was held to be erroneous and the time of the
making of the application. What I would draw
from these cases is that time elapsed from the
pronouncing of the judgment to the time when the
earlier jurisprudence on which it was based was
held to be erroneous was regarded as sufficiently
explained because in the circumstances the litigant
was not aware of his right and could not be
expected to take action to enforce it. It also seems
that the lapse of time afterwards was not taken
very seriously because the judgment affected and
would continue to affect the future rights of the
parties inter se. In the results justice was seen to
require that the extensions be granted with respect
to the rights in the future though not to undo what
had already been done under the judgment.
In a further English case, Palata Investments
Ltd v Burt & Sinfield Ltd,'° the Court of Appeal
upheld an extension of time where a delay of but
three days was satisfactorily explained, without
requiring that an arguable case for the appeal be
shown.
In McGill v. Minister of National Revenue,
judgment dated September 16, 1985, Federal
Court, Appeal Division, A-876-84 not yet report
ed, this Court, on an application under section 28
of the Federal Court Act, refused to interfere with
a judgment of the Tax Court of Canada which had
refused an application under section 167 of the
Income Tax Act for an extension of time to file a
notice of objection to a reassessment of income
tax. Hugessen J. for the Court said [at page 3]:
10 [1985] 2 All ER 517 (C.A.).
... ignorance of the law and reckless disregard for the exercise
of one's rights are two very different things, and the latter is a
very relevant consideration indeed to the exercise of a discre
tion on just and equitable grounds. From the circumstances of
this case, and in particular from the evidence of the applicant
himself quoted above, it is quite clear that the learned Tax
Court Judge was dealing with a taxpayer who was wholly
indifferent as to the proper manner of exercising his legal
rights, and that this was the real reason that he refused to grant
the relief sought. We think that he made no error of law in
doing so.
In the present instance there is no reason to
doubt that the decision of the Immigration Appeal
Board refusing to allow the applicant's application
for redetermination of his claim for Convention-
refugee status to proceed and determining that he
is not a Convention refugee is a decision that is
subject to review by this Court under section 28.
Further, as a result of the judgment of the
Supreme Court of Canada in the Singh case, there
is also no reason to doubt that the applicant has an
arguable case for setting aside the decision of the
Immigration Appeal Board and referring the
matter back to the Board for redetermination after
an oral hearing; indeed it was, as it seems to me,
not inappropriately referred to in the course of
argument as an open and shut case. There
remains, however, the questions whether there is
any satisfactory reason, any proper justification,
for not bringing the application within the 10-day
period and whether justice requires that the exten
sion be granted.
Among the matters to be taken into account in
resolving the first of these questions is whether the
applicant intended within the 10-day period to
bring the application and had that intention con
tinuously thereafter. Any abandonment of that
intention, any laxity or failure of the applicant to
pursue it as diligently as could reasonably be
expected of him could but militate strongly against
his case for an extension. The length of the period
for which an extension is required and whether any
and what prejudice to an opposing party will result
from an extension being granted are also relevant.
But, in the end, whether or not the explanation
justifies the necessary extension must depend on
the facts of the particular case and it would, in my
opinion, be wrong to attempt to lay down rules
which would fetter a discretionary power which
Parliament has not fettered.
As already indicated, in my view, it has not been
established that the applicant had, in the 10-day
period following his being informed of the decision
of the Immigration Appeal Board or in the period
up to the resumption of the inquiry on November
27, 1984, or that either he or his counsel ever had
thereafter up to April 4, 1985 any intention to
bring an application to review the Board's deci
sion. It was thus only long after the time for
bringing such an application had expired that such
an intention was formed. It may, I think, be
inferred that it was then formed only because the
Supreme Court decision in the Harbhajan Singh
case indicated at that point that such an applica
tion would succeed.
I accept as credible the applicant's evidence that
he did not know, and that no one told him, that
there was a procedure which he could invoke to
have the Board's decision reviewed. Even easier is
it to believe that until he heard of the decision in
the Singh case he did not know of any legal basis
on which the decision could be successfully
attacked. On that basis, except with respect to the
period of about a month between the receipt by
him of notice of the Board's decision and the time
when, on receiving a- notice to appear for resump
tion of the inquiry, he engaged counsel, I think it
sufficiently appears that he did what might reason
ably be expected of a person seeking refugee status
and I do not think it should be inferred from his
lack of action in that month-long period that he
was indifferent to his rights or abandoned or reck
lessly disregarded them. He says in his affidavit
that at all times he believed himself to be a
Convention refugee and that he would at all times
take any action necessary to have that status
"bestowed" on him. The explanation, in my view,
is tenuous, but, in the context of the other circum
stances, acceptable.
A feature of the situation that favours the
application, or at least does not militate against it,
is that no prejudice to the respondent will result
from the grant of the extension.
Finally, it is a feature of the situation that as
Convention-refugee status gives to the refugee con
tinuing legal rights under the Act, the Board's
decision determines not only the applicant's
present status but will, if it stands, determine it for
the future as well, so long as the applicant remains
in Canada. Justice therefore seems to require that
an opportunity be given to him to have the deci
sion, made, as it appears, without giving the appli
cant an oral hearing of his claim, set aside.
On the whole I am of the opinion that the
extension should be granted but, as the result of
the section 28 application may be a foregone con
clusion, I would grant the extension on condition
that when filing and serving the originating notice
the applicant also file and serve a consent that all
intermediate procedures prescribed by the Rules,
including an oral hearing of the application, be
dispensed with and that, with the consent of the
respondent, judgment may be pronounced forth
with setting aside the decision of the Immigration
Appeal Board and referring the matter back to the
Board for reconsideration and redetermination of
his claim for Convention-refugee status after a
hearing in accordance with the principles of funda
mental justice. The extension should be to and
include December 2, 1985.
I should add that counsel for the applicant
submitted that because the basis for the proposed
review application would be the denial of his con
stitutional right under the Canadian Charter of
Rights and Freedoms or his right under the
Canadian Bill of Rights to an oral hearing before
the Immigration Appeal Board of his application
for redermination of his claim for Convention-
refugee status, the importance of the matter war
ranted the granting of the extension. That, of
course, is not an explanation for the failure of the
applicant to bring the application within the
10-day period. It is in substance an argument that,
because so fundamental a right has been denied, a
satisfactory explanation for failure to bring the
application in the time limited therefor is
unnecessary.
In my view this, if accepted, would effectively
abolish the time limit for all such cases and make
the granting of extensions a matter of course with
out regard for the principle that at some stage the
judgment of a court must become final. I doubt
that such a position is sound but, as I have reached
on other grounds the conclusion that the extension
should be granted, I express no concluded opinion
on the submission and leave it for an occasion
when it may be necessary to decide the point.
MAHONEY J.: I agree.
* * *
The following are the reasons for order ren
dered in English by
MARCEAU J.: I readily agree with the Chief
Justice that this application ought to be granted
but I arrive at this conclusion by a somewhat
different and more direct route; since this case is
only one of many of the same type, I feel I must
express my own view of the matter.
In his reasons for judgment, which I have had
the advantage of reading, the Chief Justice starts
from the proposition that the principle set out by
Jackett C.J. in the Consumers' Ass'n (Can.) v.
Ontario Hydro [No. 2], [1974] 1 F.C. 460 (C.A.),
to the effect that an applicant seeking an extension
of time must show some justification for his delay,
is subject to the underlying consideration in deal
ing with such an application namely whether, in
view of all of the circumstances of the case and in
order to do justice between the parties, the grant
of the extension is called for. He then proceeds
with a thorough review and a discussion of all the
facets of the case and comes to the ultimate con
clusion that while the explanation given by the
applicant for the delay may be tenuous, neverthe
less, in the context of the other circumstances, it is,
in his view, acceptable. It is clear that, for the
Chief Justice, this case is no different from any
other case involving a litigant seeking leave to
bring an appeal out of time and that the discretion
of the Court here is again limited solely by the
obvious requirement that it must not be exercised
arbitrarily or capriciously. My reservations with
respect to that approach arise because I do not
think that the general principles set out by the
courts in dealing with matters of this type are
directly applicable in this case, or at least are only
applicable if its unique features are taken into
account.
My difficulty in placing reliance on the general
principles here comes from the fact that this
application is intended to regularize the proceed
ings already properly before the Court aimed at
setting aside the deportation order which was the
immediate and necessary consequence of the deci
sion of the Board, a decision that, we now know,
was made in contravention of the supreme laws of
Canada. As indicated by the Chief Justice that
application to set aside the deportation order,
which came before this Court on June 18, 1985,
was adjourned for the express purpose of bringing
this present application. This Court is certainly
one to which the applicant may apply to seek the
relief he appears to be entitled to under subsection
24(1) of the Canadian Charter of Rights and
Freedoms." I seriously doubt, in this context, that
the discretion of the Court remains as unfettered
and unrestricted as it is expressed to be and as it
normally is.
But even if I am wrong in thinking that the
context in which this application is made and the
presence of subsection 24(1) of the Canadian
Charter, prevent the simple recourse to the general
principles laid down by the courts in dealing with
demands for extension of time, my respectful opin
ion is that these principles, when applied to and
being fully mindful of the unique circumstances of
" 24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
cases of this type, do not warrant a refusal of the
applicant's request.
The imposition of time limits to dispute the
validity of a legal decision is of course meant to
give effect to a basic idea of our legal thinking
that, in the interest of society as a whole, litigation
must come to an end (interest reipublicae ut sit
finis litium), and the general principles adopted by
the courts in dealing with applications to extend
those limits were developed with that in mind.
Only if the ultimate search for justice, in the
circumstances of a case, appears to prevail over the
necessity of setting the parties' rights to rest will
leave to appeal out of time be granted. Hence the
requirement to consider various factors, such as
the nature of the right involved in the proceedings,
the remedy sought, the effect of the judgment
rendered, the state of execution of that judgment,
the prejudice to the other litigants in the dispute,
the time lapsed since the rendering of the judg
ment, the reaction of the applicant to it, his reason
for having failed to exercise his right of appeal
sooner, the seriousness of his contentions against
the validity of the judgment. It seems to me that,
in order to properly evaluate the situation and
draw a valid conclusion, a balancing of the various
factors involved is essential. For example, a com
pelling explanation for the delay may lead to a
positive response even if the case against the judg
ment appears weak, and equally a strong case may
counterbalance a less satisfactory justification for
the delay. Considering the nature of the right here
involved which cannot be more fundamental, the
effect of the decision impugned which is the issu
ance of a deportation order, the fact that this
deportation order has not yet been executed, that
the decision sought to be set aside was not only
arguably wrong but was clearly and definitely
made in breach of the fundamental laws of the
land, it seems to me that whether or not justifica
tion for the delay was shown loses much, if not all,
of its significance. It may be clear on the evidence
that up to April 4, 1985 neither the applicant nor
his counsel seem to have had the intention to seek
review of the Board's decision (which is quite
understandable, the ground for review having been
made clear only at that date), but it is also quite
clear that at no time did the applicant acquiesce to
the Board's decision or abandon his resolution to
fight against its effect as long and as much as he
could. To me this is quite sufficient.
I would allow the 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.