Cove v. Canada (Minister of Citizenship and Immigration)

Between

Patricia Cove, applicant,
and 
The Minister of Citizenship and Immigration, respondent 

[2001] F.C.J. No. 482 
2001 FCT 266 
Docket IMM-934-01 

Federal Court of Canada 
Ottawa, Ontario 
Justice Pelletier 

March 30, 2001. 

Counsel:

Glenn E. Matthews, for the applicant.
Ian Hicks, for the respondent.


» 1      Justice PELLETIER (Reasons for Order and Order):- This is an application for an extension of time within which to bring an application for judicial review of a visa officer's decision rejecting the applicant's request for a visa.  It is somewhat out of the ordinary in  that the applicant's problems are attributable to her immigration consultant who delayed taking action on the applicant's file until the limitation period found in the Federal Court Act, R.S.C. 1985 c. F-7 had nearly expired.  Even then, the consultant did not provide the lawyer he appears to have retained, the information required to prepare the Notice of Application.  A reader of these reasons might suspect that the applicant is in reduced circumstances and is in difficulty because she cannot afford to retain legal representation.  The file material discloses that the applicant and her husband have approximately $675,000 in assets which they can bring to Canada.  Furthermore, the applicant and her husband are residents of the United Kingdom so that the problem is not the lack of access to resources.  The immigration consultant in question carries on business in the United Kingdom but uses the designation OPIC which, among other possibilities, could stand for Organization of Professional Immigration Consultants which is, to my knowledge, a Canadian designation.

» 2      The chronology of events, briefly stated, is that on January 9, 2001, the Canadian High Commission wrote to the applicant in the care of her consultant to say that her visa application was refused. The consultant received the refusal on January 17, 2001.  Because no leave is required to apply for judicial review of a visa officer's decision, there is a period of 30 days from the date of notification within which to make the application.  If leave were required, the application for leave would have to be made within 15 days of notice being received.  On January 29, 2001, some 12 days after receiving notice of the decision, the consultant wrote requesting reconsideration.  On February 13, 2001, some 26 days after notice was received, the consultant contacted a law firm in Windsor, Ontario to prepare the application for judicial review.  Counsel advises that he was not  provided with the necessary information to prepare the application, so he began to prepare the application for an extension of time which was filed in the Federal Court, in Toronto, on February 27, 2001.

» 3      What is the significance of these facts for the applicant's request for an extension of time to bring her application for judicial review?  The significance arises from the argument made in favour of granting the applicant the extension of time which she seeks.  It is said, first of all, that she was not represented by a lawyer.  It is said that when her consultant chose to write to the High Commission requesting reconsideration, instead of proceeding to file an application for judicial review, the applicant trusted and accepted the strategy of her consultant.  The blame for the delay  in instructing a law firm to file the application for judicial review is laid at the feet of the consultant.

» 4      One of the elements of the test for granting an extension of time is that the failure to commence the application in a timely manner must be explained.  The explanation offered is that the consultant failed to properly discharge his obligations, a fact which, implicitly, the Court is urged not to hold against the applicant.  The material is silent on the two-week delay in filing the application for an extension of time.

» 5      The applicant is fully entitled to entrust her immigration problems to an immigration consultant rather than to a member of the immigration bar (qualified lawyer).  It may be that, in doing so, she saved some fees, but perhaps not.  She is also fully entitled to take her immigration consultant's advice on the steps to be taken in pursuing her claim.  But the applicant runs into difficulty when she suggests that she ought to receive a dispensation from the rules because she was not represented by a lawyer and received bad advice.

» 6      It is a fact that, generally speaking, applicants will be held to the consequences of their choice of advisor even when that advisor is a lawyer.    Madam Justice Reed put it this way in Williams v. Canada (Minister of Employment and Immigration), [1994] F.C.J No. 258, (1994) 74 F.T.R. 34:

[20] ...The general rule, in the courts, is that a client is considered to have authorized and be bound by the representations made on his or her behalf by counsel. The system cannot operate if this is not so.  In my view, to grant a stay in circumstances where the only prejudice the applicant can demonstrate is that he may or may not have grounds for judicial review, but does not know because his former counsel did not properly prepare his case, would create an unworkable precedent.  It is the professional accreditation bodies, such as the Law Society, not the courts, which have the mandate to regulate the professional performance of their members.

» 7      In Drummond v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 477, (1996), 112 F.T.R. 33, Rothstein J. (as he then was) identified an exception to the principle enunciated by Reed J.:

However, in extraordinary cases, competency of counsel may give rise to a natural justice issue.  In such cases, the facts must be specific and clearly proven; see Sheikh v. Canada  (1990), 71 D.L.R. (4th) 604 (F.C.A.); Huynh v. M.E.I.  (1993), 21 Imm. L.R. (2d) 18 (F.C.T.D.); and Shirwa v. M.E.I.  (1993), 23 Imm. L.R. (2d) 123 (F.C.T.D.).

» 8      These facts do not raise any issue of denial of natural justice.

» 9      If the applicant were in these straits because of her lawyer's error, that error would be held against her.  Why should the errors of her consultants not be held against her? To accept this argument would create a positive incentive for individuals to use consultants in preference to lawyers so that if things went badly, relief could be obtained by blaming the inadequacy of the consultant.  This is not conducive to a rational use of legal and judicial resources.

» 10      If individuals are going to hold themselves out as skilled in immigration matters and, as is increasingly the case, adopt the designation of "counsel", then they will be held to the same standard as those who customarily appear before the Court.  The consequences to their clients of non-performance will be the same as it is for clients of the immigration bar.  There is no reason why the Court should shelter consultants from negligence claims by overlooking their mistakes.  Members of the immigration bar pay large liability insurance premiums for coverage which is subject to being called upon every time a court refuses to gloss over their mistakes.  To apply a different standard to consultants is to subsidize their competition with the immigration bar.

» 11      It is not for this Court to decide who clients can consult about their immigration problems.  If there were not a need and a demand for immigration consultants, they would not exist.  But it is equally not for this Court to disadvantage its own officers (lawyers) by applying a different standard to those who would displace them.

» 12      In the end result, I am not persuaded that the explanation offered for the delay entitles the applicant to the relief she seeks.

» 13      The application for an extension of time is dismissed.

ORDER

  For the reasons stated above, the application for an extension of time is hereby dismissed.

PELLETIER J.

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