Haque v. Canada ( Minister of Citizenship and Immigration )
IMM-4182-98
Teitelbaum J.
6/11/98
13 pp.
Appeal from Prothonotary's dismissal of application for extension of time to file perfected application record-Plaintiffs filing application for leave, judicial review of Immigration and Refugee Board decision-Federal Court Immigration Rules, R. 10 requiring plaintiffs to perfect application within 30 days of filing application for leave, judicial review-One day after 30-day limitation period, plaintiffs serving, filing application for extension of time accompanied by perfected application record, affidavit explaining delay caused by failure of plaintiffs' counsel's computer-Prothonotary convinced failure to serve, file record caused by plaintiffs' counsel spending too much time obtaining transcript of refugee hearing or tapes thereof-Decision communicated to plaintiffs' counsel by telephone October 5-Copy of written decision sent October 7, received October 16-Appeal filed October 21-Federal Court Rules, r. 51 permitting appeal from Prothonotary's order within 10 days-Defendant submitting plaintiffs out of time to file appeal-Appeal allowed-(1) Court having jurisdiction to allow appeal from Prothonotary's decision outside 10-day delay stipulated in r. 51-R. 51(2) requiring notice of appeal to be served within 10 days after day on which order under appeal made, communicated to party who wishes to appeal decision-Communication can be effected in various ways i.e. telephone, fax, letter etc.-Difficult to appeal decision not communicated to party-Even if r. 51 not speaking of communication of decision, but only of date order under appeal made, party must have decision communicated to him/her or counsel and it is from that date delays beginning to run-Considering rr. 3, 8 in interests of justice to allow appeal to proceed-(2) Prothonotary erred in refusing extension of time of few days based on facts herein-Not considering short duration of delay, reason for delay unusual, merits of judicial review application, serious prejudice to plaintiffs because of one-day delay in filing perfected application record-Federal Court Rules, 1998, SOR/98-106, rr. 3, 8, 51-Federal Court Immigration Rules, 1993, SOR/93-22, RR. 10, 369.