77-A-302
Eleonora Vlahou (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, February 1, 1977.
Practice — Immigration — Motion in writing applying for
leave to appeal decision of Immigration Appeal Board —
Insufficient affidavit evidence in support of motion or applica
tion — Right to re-apply — Immigration Appeal Board Act,
R.S.C. 1970, c. 1-3, s. 23 — Federal Court Rules 324, 1107
and 1301(2).
Applicant applied in writing pursuant to Rules 324 and 1107
for leave to appeal from a decision of the Immigration Appeal
Board. An affidavit in support of the application showed that
counsel for the applicant had only been retained nine days after
the Board's decision and that he had no prior knowledge of the
facts or the reasons for the Board's decision. Counsel claimed
he would produce written representations in support of the
application as soon as possible.
Held, the application is dismissed, without prejudice to the
applicant's right to re-apply after obtaining an extension of
time pursuant to section 23 of the Immigration Appeal Board
Act. If a motion under Rule 324 cannot be supported by
adequate representations it should not be made since, as a rule,
it will be summarily dismissed. An application for leave to
appeal under Rule 1301(2) must be supported by an affidavit
as to the facts on which the applicant relies. Leave to appeal is
not granted for the sole reason that the applicant does not know
the reasons on which a judgment is based. The fact that the
applicant changed counsel after the Board's decision does not in
itself warrant a different decision.
MOTION in writing under Rule 324 applying for
leave to appeal.
COUNSEL:
Carter C. Hoppe for applicant.
T. James for respondent.
SOLICITORS:
Duggan, Hoppe, Niman & Stott, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application for leave to
appeal from a decision of the Immigration Appeal
Board rendered on January 5, 1977. The applica
tion was made in writing pursuant to Rules 1107
and 324 and was filed on January 19, 1977. The
only material filed in support of the application
was an affidavit establishing that
(a) Counsel for the applicant was first contact
ed by the applicant on January 13, 1977, and
retained on January 14, 1977, to seek leave to
appeal from the decision of the Immigration
Appeal Board;
(b) Counsel for the applicant did not represent
the applicant at any prior proceedings and did
not have any prior knowledge of the facts of the
matter; he has written to the Immigration
Appeal Board and requested the transcript of
the hearing and the reasons for the decision of
the Board; further, counsel expects to be briefed
by counsel who conducted the proceedings below
as to the events that transpired at the various
prior proceedings;
(c) Counsel for the applicant intends to submit
written representations in support of the
application "as soon as may be practicable,
having regard to the time necessary to receive
the material noted above and to prepare the
matter for written submission."
In the letter addressed to the Registry, in which
counsel for the applicant requested that the
application for leave to appeal be disposed of
without personal appearance pursuant to Rules
1107 and 324, it was stated that:
Pursuant to Rule 324, the Applicant desires an opportunity
to make Representations to the Court in support of this
application, and requests a reasonable amount of time within
which to obtain and study a copy of the transcript of the
hearing before, and the reasons of, the Immigration Appeal
Board, and a transcript of the Inquiry which resulted in the
Order of Deportation. Accordingly, the Applicant shall serve
and file written Representations as soon as may be practicable.
As yet, no written representations have been filed
by the applicant or the respondent.
Counsel for the applicant seems to have
assumed that he could file an application for leave
to appeal pursuant to Rule 324 with the under
standing that it would not be disposed of until he
could support it by adequate material and written
representations. This, in my view, is a misappre-
hension. If one is unable to support a motion by
adequate material and representations, one should
refrain from making it. As a rule, a motion is
disposed of on the basis of the evidence and
representations made at the time of its presenta
tion. When a motion is made under Rule 324, it is
presented at the time it is filed with the letter
requesting that it be disposed of without personal
appearance. It is, therefore, at that time that the
applicant's representations and the affidavit evi
dence supporting the application must be submit
ted; if they are not, the motion will, as a rule, be
summarily dismissed.
An application for leave to appeal must, under
Rule 1301(2), "be supported by an affidavit estab
lishing the facts on which the applicant relies". It
is clear that the facts established by the affidavit
filed in support of the applicant's motion do not
warrant the making of an order granting her leave
to appeal. Leave to appeal from a judgment is not
granted to an applicant for the sole reason that he
is ignorant of the reasons on which that judgment
is based. I may add that, had the applicant asked
for an extension of the time within which leave to
appeal may be granted, the facts established in the
affidavit would not, in my view, have justified the
granting of such an extension. It has already been
decided that, except in special circumstances, an
applicant will not be granted an extension of time
to obtain leave to appeal from a decision of the
Immigration Appeal Board on the sole ground that
the reasons for the decision have not been com
municated to him. The only additional relevant
fact mentioned in the affidavit, namely, that the
applicant changed counsel after the decision of the
Immigration Appeal Board, is not, in my opinion,
a circumstance which, in itself, would warrant a
different decision.
For these reasons, I would dismiss the applica
tion for leave to appeal without prejudice to the
applicant's right to re-apply after having obtained
an extension of time pursuant to section 23 of the
Immigration Appeal Board Act.'
* * *
JACKETT C.J.: I concur.
* * *
URIE J.: I concur.
1 R.S.C. 1970, c. I-3.
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.