Date: 20031029
BETWEEN:
RUBAN R. SIVANADIAN
Applicant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
[1] This is motion pursuant to Rule 399 of the Federal Court Rules, 1998, to set aside the decision of Justice Hansen dated Feb 27, 2001 dismissing the application for judicial review for having failed to respond to a duly served notice of status review and to reconsider the decision in light of the evidence furnished by the applicant.
[2] A short chronology of events is helpful to understand this case:
- February 28, 2000 the applicant's complaint to the Human Rights Tribunal is dismissed
- March 2, 2000 the decision is communicated to him (according to his notice of application for review)
- March 29, 2000 applicant hires his first counsel Davies Bagambiire
- April 3, 2000 Davies Bagambiire files notice of application for judicial review on behalf of applicant
- November 29, 2000 notice of status review is sent by fax to applicant's solicitor
- February 2001 Justice Hansen dismisses application for failure to reply to notice of status review
- September 26, 2002 applicant ends the brief of Davies Bagambiire
- October 7, 2002 applicant becomes aware of the order of Justice Hansen. He then seeks legal aid
- February 25, 2003 applicant is informed that his request for legal aid is denied
- April 7, 2003 applicant hires second counsel Yehuda Levinson
- August 2003 applicant ends the brief of Yehuda Levinson and decides to represent himself.
[1] This chronology certainly shows the application was not pursued with any vigour. After hiring his first counsel in March 2000 and filing his application in April 2000 there is no action on this file until the applicant fires his counsel and becomes aware in October 2002 of the order of Justice Hansen of February 2001 .
[2] However, even once becoming aware of the order the applicant does not proceed with due dispatch. Instead, he first seeks legal aid and when denied engages a second counsel. He then fires the second counsel and finally, in October 2003, files this application.
[3] His explanations for the delay are:
a) that receiving the dismissal of the notice of application caused him "mental distress and pain" from which he needed a few months to recover,
b) that he tried to obtain legal aid but did not succeed, and
c) that his second counsel did not take reasonable steps nor follow instructions.
[4] Applying the test for status review set out in Baroud v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 91:
In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions:
(1) what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred? and
(2) what steps is the plaintiff now proposing to move the matter forward?
I cannot see how the applicant in any way meets the first leg of that test.
[5] Failure to obtain legal aid is not reason for delay. As to the other reasons advanced, they do not qualify as to justify the delay.
[6] Consequently this motion is dismissed. "K. von Finckenstein"
JUDGE
Ottawa, Ontario
October 29, 2003
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-641-00
STYLE OF CAUSE: RUBAN R. SIVANADIAN
- and -
CANADIAN HUMAN RIGHTS COMMISSION
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: von FINCKENSTEIN J.
DATED: OCTOBER 29, 2003
WRITTEN REPRESENTATIONS BY:
|
Mr. Ruban R. Sivanadian, on his own behalf |
FOR THE APPLICANT |
|
None |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Markham, ON |
FOR THE APPELLANT/ APPLICANT |
|
Toronto, ON |
FOR THE RESPONDENT |