Minister of Manpower and Immigration
(Applicant)
v.
Stilianos Zevlikaris (Respondent)
Court of Appeal, Jackett C.J.
Practice—Immigration—Appeal from decision of Immi
gration Appeal Board—Application for extension of time for
appeal—Whether "special reason" shown—Immigration
Appeal Board Act, R.S.C. 1970, c. I-3, s. 23(1)—Federal
Court Rule 324.
APPLICATION in writing under Federal Court
Rule 324.
SOLICITORS:
E. Kucher for applicant.
R. Trombinski for respondent.
JACKETT C.J.—This is an application in writ
ing under Rule 324 for an extension of time for
granting leave to appeal under section 23 of the
Immigration Appeal Board Act, R.S., 1970, c.
I-3, subsection (1) of which 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 relevant sequence of events, as it appears
from the material filed in support of the motion,
is as follows:
1. On February 10, 1971, a deportation
order was made against the respondent.
2. Within the time limited therefor (24
hours), the respondent appealed from the
deportation order to the Immigration
Appeal Board.
3. On December 10, 1971, the respond
ent signed "before an Immigration offi
cer" a "prepared statement giving notice
of the withdrawal of his appeal".
4. The document in question was sent to
the Immigration Appeal Board in Ottawa
and arrived there December 16, 1971.
5. In the meantime, on December 14,
1971, the respondent made it known to
the applicant's officials that he had
changed his mind about withdrawing his
appeal.
6. The Immigration Appeal Board, by an
order made on August 30, 1971 and
signed on September 1, 1971, granted a
motion "for late filing of appeal" and, by
another order made on the same day,
dismissed the appeal, and, in the exercise
of its powers under section 15 of the
Immigration Appeal Board Act, stayed
the execution of the deportation order
until August 30, 1974.
7. Counsel for the applicant received the
latter order on September 5, 1971.
8. On October 27, 1972, counsel for the
applicant received the reasons for the
Board's decision.
9. On November 30, 1972, the applicant
filed notice of an application to extend
the time for making an order granting
leave to appeal under section 23(1) of the
Immigration Appeal Board Act and this
application was dismissed on December
4, 1972 for reasons dated December 1,
1972, but without prejudice to the appli
cant's right to make a new application.
10. The present notice of motion was
filed January 1, 1973, and is supported
by affidavits to one of which is attached
material showing that a solicitor who acts
for the respondent has consented to an
order extending the time for applying for
leave to appeal.
One of the aspects of this matter that should
be mentioned at the outset is that while there
are two decisions of the Immigration Appeal
Board signed on September 1, 1971, viz.:
(a) a decision granting the motion "for late
filing", and
(b) a fiecision dismissing the appeal from the
deportation order and exercising the section
15 powers;
there can only be an appeal to this Court under
section 23 of the Immigration Appeal Board
Act, supra, from the second of these two deci
sions. While, therefore, the Notice of Motion
for extension of time does not specify which of
these two orders is involved, it must be taken to
be notice of a motion for an order extending the
time for making an order granting leave to
appeal from the decision exercising the section
15 powers.
My principal difficulty in dealing with this
application is that there is no indication in the
applicant's letter under Rule 324 as to what
question of law it is proposed to raise by way of
appeal if leave is granted. The only possible
indication of this that I have been able to glean
from the material is the reference in one of the
supporting affidavits to the fact that counsel for
the applicant drew the applicant's attention to
the dissenting reasons of Colonel Campbell in
connection with the proposed appeal. As I
understand the reasons delivered by Colonel
Campbell, he dissented from the decision of the
majority to reinstate the appeal and, for that
reason, said nothing on the question whether the
section 15 powers should be exercised. I can
only take it from this that the question of law on
which the applicant desires to appeal is a ques
tion as to whether there was an appeal before
the Board in which the decision that it is desired
to attack could have been legally given.'
Assuming that that is the question of law to
be raised on the proposed appeal, I do not think
an extension of time should be granted.
Counsel for the applicant, having participated
in the hearing of the motion and of the appeal
before the Board knew, or should have known,
of the state of affairs concerning the status of
the appeal at the time of the hearing and was in
just as good a position to advise on a challenge
to the Board's decision dated September 1,
1971 for lack of any foundation proceeding
immediately after he received that decision as
he was after receiving the Reasons. I see no
"special reason" for extending time in respect
of a period spent waiting for reasons on such a
question. Without, therefore, expressing any
opinion on the adequacy of the explanation for
the delay since receipt of the reasons, I am of
opinion that there is no "special reason" for the
delay from September 5, 1972 until October 27,
1972, having regard particularly to the fact that
the statutory normal time is fifteen days. I am,
therefore, of opinion that this motion should be
dismissed unless there is some reasonably
arguable question of law on which to appeal that
is revealed by a study of the reasons given for
the Board's decision, that is not as yet apparent
to me, in which event the question of "special
reason" in relation to the whole of the delay
would have to be reviewed in relation to that
question of law.
It follows, therefore, that, unless the applicant
puts forward further submissions in the light of
the above reasons within ten days, or such
further time as may be allowed on request, my
judgment will be that, upon the expiration of
that period, this application will stand
dismissed.
I perhaps should add, so that there may be no
question about the matter, that I have not over
looked the consent filed on behalf of the
respondent. In my view, such a consent cannot
give a judge authority to extend time in the
absence of the "special reasons" required by
section 23(1); and, in my view, there are no
"special reasons" here on my present under
standing of the matter.
' This question would seem to turn on whether the appeal
had really been brought to an end under Rule 7 of the
Immigration Appeal Board Rules, which read as follows:
7. Where a Notice of Appeal has been signed and
served, it may be withdrawn only upon written notice
signed by the appellant or his counsel, and either
(a) served upon an immigration officer, who shall
forthwith notify the Registrar of such withdrawal; or
(b) filed with the Registrar.
On the facts that have been set out in the material filed in
this Court, it is impossible to answer this question but they
do not satisfy me that a written notice of withdrawal was
served or filed before having been countermanded.
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.