So my distraction turned into a bit of a search for case law regarding the meaning of the rules around the strict timelines laid down by the Federal Court of Canada. Why is this important? If the response is not timely and the Court does not grant an order then the material is excluded from consideration.
I also noticed another time issue: the “certified tribunal record” includes material that is dated AFTER the original decision, which runs counter to CIC’s own rules – the tribunal record should only include information/material that was considered by the decision maker. Interestingly, if the extra material had been present in December 2011, the visa officer should have reached a positive determination, since it indicates I am not medically inadmissible (a code of “M39” which means “medically admissible – excessive demand exempt, will require health and/or social services”).
One might think that a single day doesn’t really matter – but it does. It could be easily overcome by filing an application with the Court, asking for the change in schedule to be allowed and explaining why the extension is justified. Indeed, I read a case in which the attorney delivered the application to the Bailiff for service on the day the service was due but the Bailiff did not serve the papers until the subsequent day. The court did not consider the application record because it was not served in a timely fashion and the Applicant’s counsel did not ask for an extension of time to file.
I have seen signs of game playing in civil litigation before, so I shouldn’t be surprised at these shenanigans, but it is a bit shocking when it is my case to which they are being applied.
Then again, it makes me wonder: if the government had a strong case here, why would they play these games. This really does suggest they expect to lose. In some ways, having the Court strike down 38(1)(c) might be a blessing for the government because it would get them out of the medical inadmissibility business, which does seem to create a lot of grief for them.
We will know on or after October 17, 2012. I don’t see that deadline changing.
- British Columbia and the Optional Nature of Health Care (medicallyinadmissible.com)
- Demystifying the Law: How Case Law & Administrative Law Is Made (blogs.lawyers.com)
- Ontario’s Prostitution Ruling Misrepresented Evidence and Contravened the Charter & Case Law (survivorsconnect.wordpress.com)
- Immigration Appeals – Timelines (ukimmigrationspecialist.com)
- Deadline today in Alabama immigration lawsuits on effect of recent Supreme Court decision (al.com)
- CBC loses court battle to photojournalist over 9/11 documentary (o.canada.com)
- Jason Kenney tells war veteran daughter: soldiers were “heroes,” but not Canadian citizens (vancouverobserver.com)
- Canadian consulate at Buffalo joins the long list of visa offices closed in 2012: Transcend Consultants (prweb.com)
- ‘Canadian Exceptionalism’ in Immigration and Pluralism Policy (lawprofessors.typepad.com)
- Is Canada ‘a country of immigrants?’ (blogs.vancouversun.com)