Frenkel v. Canada ( Minister of Citizenship and Immigration )
IMM-4428-97
Hargrave P.
26/1/98
7 pp.
Application for leave to review decision of Immigration and Refugee Board dismissed by McGillis J.-Applicants seeking extension of time for reconsideration of McGillis J.'s decision under R. 337(5)-Whether applicants have reasonable chance of success were reconsideration to take place-R. 337(5) not mechanism whereby litigant may reargue case in order to obtain different result-Not allowing Court to re-examine conclusions drawn from material available at time-Reconsideration limited to grounds set out in Rule-Oversight, omission referred to in R. 337(5) oversight on part of Court, not oversight committed by party-Not for Courts to deal with allegations of incompetence of counsel-In extraordinary case, competency of counsel may give rise to natural justice issue-Heavy burden on applicant to come within such exception-Applicants' lawyer denying any default on his part, indicating difficulty arose because applicants failed to ensure record filed in timely manner in Montréal-Applicants have not demonstrated exceptional case in which competency of counsel specifically, clearly proven so as to give rise to review by way of denial of elements of natural justice-Whether absence of record might be considered merely procedural irregularity, therefore whether decision to dismiss application, which otherwise would be final, might be revisited-Order, once signed by judge, final subject only to relief provided for in R. 337-Court has no jurisdiction, through new proceeding, to seek same relief by looking at matter again-Applicants have allowed matter to proceed in absence of record-Court, faced with absence of record, integral part of judicial review procedure, had no option but to dismiss matter-Dismissal in form of final judgment-Motion dismissed-Federal Court Rules, C.R.C., c. 663, R. 337(5)(b).