Colavecchio v. Canada (Attorney General)

Colavecchio v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2002-07-31
Neutral citation
2002 FCT 835
File numbers
02-T-32
Decision Content
Date: 20020731
Docket: 02-T-32
Montréal, Quebec, July 31, 2002
Before: Lemieux J.
BETWEEN:
ROBERTO COLAVECCHIO
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
For reasons filed today, this application is dismissed.
"François Lemieux"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020731
Docket: 02-T-32
Neutral citation: 2002 FCT 835
BETWEEN:
ROBERTO COLAVECCHIO
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] I consider that this application to extend the deadline for filing an application for judicial review should be dismissed.
[2] The applicant is coordinating member of the Refugee Division. He asked the Court to quash the decision by the chairperson of the Immigration and Refugee Board on November 1, 2001, to place him on paid leave pending the conclusion of an ongoing criminal inquiry.
[3] Section 18.1 of the Federal Court Act requires that an application for judicial review be filed within 30 days after the time the decision was first communicated by the federal board, commission or other tribunal. The applicant delayed for eight months.
[4] He justified the delay on the following grounds:
[TRANSLATION]
36. the applicant has not so far brought any proceeding out of deference to the organization to which he belongs and his superiors, as he did not want to do anything to harm or impair the reputation of the organization to which he belongs;
37. the applicant now wishes to have the decision of November 1, 2001 quashed since he believed in good faith that the inquiry would be concluded within a reasonable time and he could return to his work once the matter has been resolved so far as he is concerned;
38. the inquiry has now been going on for over six months and nothing has been done involving the applicant since, despite his offering to undergo examination, the R.C.M.P. has refused.
[5] In Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846, the Federal Court of Appeal concluded that there were four factors which an applicant must establish in order to obtain an extension of time (see also Rosen v. Canada, [2000] F.C.J. No. 415).
[6] Those factors are:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[7] In the case at bar, since the applicant clearly does not meet the first and third requirements, I do not have to analyze the other factors.
[8] It is clear the applicant did not have a continuing intention to pursue his application during the required period. Instead of filing an application for judicial review, he relied on the conclusion of the inquiry so he could return to work.
[9] The applicant's explanation justifying the delay does not seem reasonable to me. The applicant felt that the chairperson of the Board did not have the power to put him on paid leave pending the results of the inquiry, since that power belongs to the Governor General in Council, who appointed him.
[10] In my opinion, if the applicant really felt that the chairperson of the Board had acted unlawfully, he would have reacted quickly. The deference he might have for the Board does not justify a seven-month delay.
[11] Having ruled on the merits, I do not have to consider the preliminary objection raised by the defendant, namely that the applicant should have obtained the Court's leave under s. 72 of the recently adopted Immigration and Refugee Protection Act.
[12] This application for an extension is dismissed.
"François Lemieux"
Judge
Montréal, Quebec
July 31, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020731
Docket: 02-T-32
Between:
ROBERTO COLAVECCHIO
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: 02-T-32
STYLE OF CAUSE: ROBERTO COLAVECCHIO
and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 29, 2002
REASONS FOR ORDER BY: LEMIEUX J.
DATED: July 31, 2002
APPEARANCES:
Franco Iezzoni FOR THE APPLICANT
François Joyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pateras & Iezzoni FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec