Federal Court Grants Extension of Time for Respondent

Date: 20260203 Docket: IMM‑12486‑25 Citation: 2026 FC 152 St. John’s, Newfoundland and Labrador, February 3, 2026 PRESENT: Associate Judge Trent Horne BETWEEN: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

ORDER AND

REASONS I. Overview [ 1 ] Within its motion for an extension of time, the respondent wrote to the Court to request that the applicant’s responding motion record be removed from the Court file. [ 2 ] The ability to remove a document from the Court file is a tool that permits the Court to control its own process, ensure compliance with the Rules, and maintain fairness in litigation. Before such an order is issued, all interested parties must be given the opportunity to make submissions. [ 3 ] [ADDRESS] is receiving an increasing number of requests that documents be immediately or unilaterally removed from the Court file, almost all of which are improper. These reasons set out how any such requests should be made.

II. Rule 74 [ 4 ] The respondent’s motion for an extension of time to serve and file a memorandum of argument was served and filed on December 9, 2025, and was brought in writing. Pursuant to subrule 369(2) of the Federal Courts Rules , SOR/98-106 [Rules], any responding motion record was due on December 19, 2025. [ 5 ] The applicant missed the deadline and filed a responding motion record on December 30, 2025. The applicant’s written representations state that the record was late because it was necessary to review all of the respondent’s materials and prepare a responding argument. The applicant did not bring a motion or file an informal request for interlocutory relief for an extension of time to serve and file a responding motion record. There is no evidence in the applicant’s motion record to support the argument that a late filing should be permitted. [ 6 ] It was an error for the Registry to receive the applicant’s responding motion record for filing. It was out of time, and there was no motion or informal request to extend the deadline. [ 7 ] The respondent did not, as permitted by subrule 369(3), serve and file written representations in reply. [ 8 ] The respondent wrote to the Court on December 31, 2025, noted the late filing of the responding motion record, and submitted that it should be removed from the Court file. The applicant wrote to the Court on the same day with submissions as to why the record should remain on the Court file. [ 9 ] The respondent’s letter to the Court was improper. [ADDRESS] has observed an increase in requests from litigants, particularly respondents, to have documents removed from the Court file. Orders and directions have been issued as to the proper use of Rule 74, but the practice continues. [ 10 ] Rule 74 provides that the Court may, at any time, order that a document be removed from the Court file if it was not filed in accordance with the Rules or an Act of Parliament, is scandalous, frivolous, vexatious or clearly unfounded, or is otherwise an abuse of process, provided that all interested parties have been given an opportunity to make submissions. Rule 74 is intended to address the excessive or disproportionate use of rights under the Rules, such as the use of procedures to delay cases and the adoption of behaviours disproportionate to the objective of achieving an expeditious, just and cost-effective judicial decision. Some litigants bring multiple proceedings and motions respecting the same matter or initiate proceedings that clearly have no chance of success ( [NAME] v Canada , 2023 FC 1542 [ [NAME] ] at para 16). An appeal of [NAME] was dismissed in an unreported decision in Court file A-194-23 on January 18, 2024; an application for leave to appeal to the Supreme Court of Canada was also dismissed (docket #41223). [ 11 ] The Federal Court of Appeal has determined that the combined effect of Rule 74 (prior to recent amendments), Rule 4 (the gap rule), and Rule 55, alongside its plenary powers, granted the Court jurisdiction to summarily dismiss a proceeding that is abusive of the Court’s process ( [NAME] v Canada (Human Rights Commission) , 2021 FCA 150 at paras 16-18; [NAME] v Canada (Attorney General) , 2021 FCA 8 at paras 19-21). Following amendments to Rule 74(1), the Court can now order that a document be removed from the court record on additional grounds, similar to those applicable to motions to strike ( [NAME] at paras 17-18). [ 12 ] Simply put, the process leading to a decision under Rule 74 to remove a document from the Court file (or not) is engaged only at the Court’s initiative. It is not a process that parties can initiate, or that they control. Rule 74 is not engaged because a party writes a letter to the Court and asks that a document be removed from the Court file. Except in extreme circumstances, which are not present here, the Court will not remove a document from the Court file based on a unilateral request from one of the parties. Both Rule 74 and principles of procedural fairness require that parties be given the opportunity to be heard before an order is made. [ 13 ] When a party is of the view that a document is improperly on the Court file, whether an originating document, motion record or otherwise, there are two options. The first is to bring a motion, such as a motion to strike. The second is to write to the Court and request that the Court exercise its discretion and issue an order or direction giving notice to the party that filed the document that submissions are required as to whether it was properly filed. If the Court elects to use Rule 74, and that decision rests entirely with the Court, a timetable will typically be set for the exchange of submissions as to whether the document should be removed from the Court file. [ 14 ] Rule 74 is not a substitute for a motion to strike. If the Court engages the process under Rule 74, the party filing the document must provide reasons as to why it should stay on the Court file. A party bringing a motion to strike bears the burden of demonstrating that the applicable test has been satisfied. A party cannot independently circumvent a motion to strike and reverse the onus by writing a short letter to the Court referring to Rule 74. [ 15 ] Who controls whether the Rule 74 process is triggered is a meaningful distinction. When the Court chooses to engage Rule 74, there will be a specific order or direction advising the party who filed the document as to the nature of the Court’s concerns, and at least a timetable for exchange of submissions, if not an opportunity for an oral hearing. When parties write to the Court requesting Rule 74 relief, as the respondent did here, it is not apparent to the party who filed the document whether the Rule 74 process is engaged, whether submissions need to be filed, or when. An unregulated exchange of correspondence is inefficient for all stakeholders. [ 16 ] In these circumstances, I decline to exercise my discretion and order that the applicant provide submissions as to whether the responding motion record should remain on the Court file. Even though it was plainly submitted for filing out of time and placed on the Court file in error, the guiding principles of Rule 3 are better served by adjudicating the motion on the materials in the Court file and avoiding further delay.

III. Extension of Time [ 17 ] To obtain an extension of time, the moving party must demonstrate: (i) a continuing intention to pursue the proceeding; (ii) that there is some merit to its application; (iii) a lack of prejudice to the opposite party; and (iv) a reasonable explanation for the delay. The burden is on the moving party to prove each of these elements ( [NAME] v Canada (Minister of National Revenue) , 2006 FCA 38 at para 2). However, the criteria are not conjunctive. A motion for an extension of time may be granted even if all the criteria are not met ( [COMPANY] v Canada , 2023 FC 1755 at para 16). [ 18 ] [ADDRESS] leans against extending defaulted time limits, unless a good account can be given for every day of the delay ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 1679 at para 22). [ 19 ] The explanation for the delay is that there was an administrative error within the offices of counsel for the respondent. The file was not assigned to a lawyer, and this was only realized when correspondence from the applicant’s counsel was received on December 5, 2025. This motion was filed on December 9, 2025. While this oversight is unfortunate, there is at least evidence as to the nature of the error, when it was discovered, and what was done upon discovery of the error. The respondent acted quickly when the error was discovered. [ 20 ] A continuing intention to pursue a matter is related to the explanation for the delay. The respondent has demonstrated an intention to defend the proceeding by bringing this motion and did so promptly upon discovering the missed deadline. [ 21 ] The role of the Court on a motion for an extension of time should not be to review the record and effectively stand in the shoes of the judge deciding whether leave should be granted. There is, however, an expectation that the respondent, who bears the onus of establishing that there is some merit to the position that the application for leave or application on the merits should be dismissed as part of meeting the test for an extension of time, to concisely address the merits in the motion materials. The respondent submits that it was reasonable for the visa officer to not be satisfied that the applicant would depart Canada at the end of the authorized period of stay due to the strength of her ties to Canada (through her sister), her limited ties to her country of origin (Iran) and the pending expiry of her residence permit in Türkiye. Whether this argument will be successful need not be resolved now. The respondent has at least touched on the potential merits with some specificity. [ 22 ] The applicant is inherently prejudiced by the delay, but the delay is not significant, and there is no evidence from the applicant as to specific prejudice that has arisen as a consequence of the timing of the respondent’s motion. [ 23 ] Balancing all the factors, I am satisfied that it is in the interests of justice to grant the respondent’s motion.

ORDER in IMM-12486-25 THIS COURT ORDERS that : The respondent is granted an extension of time to 10 (ten) days from the date of this order to serve and file a memorandum of argument and affidavit(s), if any. All subsequent deadlines are extended accordingly. blank "Trent Horne" blank Associate Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-12486-25 STYLE OF CAUSE: [NAME] v [NAME] IN WRITING PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES, SOR/98-106 WITHOUT THE PERSONAL APPEARANCE OF THE PARTIES

ORDER AND

REASONS: HORNE A.J. DATED: February 3, 2026 WRITTEN REPRESENTATIONS BY : [NAME] For The Respondent SOLICITORS OF RECORD : [NAME] and Solicitors Toronto, [NAME] of Canada Toronto, Ontario For The Respondent