Date: 20001108
Docket: IMM-3105-00
Between:
SOLANGE IRÈNE KOUD
JEREMY EDDY BOBONGO-KOUD
ANTONY ARISTIDE BOBONGO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] Having regard to the special circumstances surrounding the issuance of this order, I have decided, as an exception, to issue these reasons.
[2] Subsection 82.1(6) of the Immigration Act[1] reads as follows:
| Subject to subsection (7), where leave to commence an application for judicial review is granted, the application for judicial review shall be deemed to have been commenced and the judge granting leave shall fix the day and place for the hearing of the application for judicial review. |
|
Sous réserve du paragraphe (7), si la demande d'autorisation est accueillie, la demande de contrôle judiciaire est réputée avoir été formée et le juge de la Cour fédérale qui a accueilli la demande d'autorisation fixe la date et le lieu d'audition de la demande de contrôle judiciaire. |
|
|
|
|
[3] Subsection (7) provides:
| In fixing a day pursuant to subsection (6), the judge shall set the matter down for a day that is no sooner than thirty days, and no later than ninety days, after the day on which leave to commence the application for judicial review was granted, unless the parties agree that the matter may be set down on an earlier day. |
|
La date fixée conformément au paragraphe (6) ne peut être postérieure de moins de trente jours, sauf convention contraire des parties, ni de plus de quatre-vingt-dix jours à la date à laquelle la demande d'autorisation a été accueillie. |
|
|
|
|
[4] I granted leave in this case. However, in view of the lack of availability of a judge to hear the matter on its merits, I am unable to obtain from the Registry a date that falls within the 90-day deadline.
[5] In the circumstances, two options are possible:
1. To wait and sign my order when a judge becomes available to hear the matter.
2. To sign the order and not meet the period provided in subsection (7).
[6] After careful consideration, I am of the view that I should issue this order at this time. It is extremely regrettable that I am unable to meet the periods provided by the Act but in my opinion it is in the interest of justice not to delay the issuance of the order. Between two evils, it is necessary to choose the lesser. Fairness requires that an applicant know that an application for leave was granted and when it was granted. This principle, in my opinion, supplants the difficulty of setting down within the prescribed periods, which is beyond the control of the judge.
[7] I am satisfied that the spirit of this provision is that a matter be heard expeditiously as soon as it is materially possible to do so. "Nemo tenetur ad impossibilia."
[8] The difficulty with this approach is that in failing to fulfil one of the requirements of the Act, it may appear prima facie that I lose jurisdiction.
[9] However, upon reflection, I do not think this is the case. In my opinion, in the circumstances the word "shall" in the English version of subsection (7) should not be construed as not being mandatory.
[10] In McCain Foods Ltd. v. Canada,[2] the Federal Court of Appeal examined the theory of the distinction between what is mandatory and what is directory. Essentially, the Court applied the rule developed in Montreal Street Railway Co. v. Normandin[3] in which it was held that when the statutory provisions relate to the performance of a public duty, and to hold null and void acts done in neglect of that duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, the provisions must be considered to be merely directory.
[11] Although in this case it is not through negligence but through impossibility that the time frame cannot be complied with, I am satisfied that the theory applies and that subsection (7) is merely directory.
[12] There is no doubt that there is a public duty imposed by the legislation, that the persons concerned by this order have no control over the process and that they would be seriously inconvenienced if the order were declared null and void. Furthermore, I find no public interest in doing so, for it would not promote the main object contemplated by Parliament.
[13] For these reasons, I have issued the order attached hereto.
"Danièle Tremblay-Lamer"
Judge
OTTAWA, ONTARIO
November 8, 2000
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3105-00
STYLE: SOLANGE IRÈNE KOUD
JEREMY EDDY BOBONGO-KOUD
ANTONY ARISTIDE BOBONGO
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MOTION EXAMINED ON RECORD WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: NOVEMBER 8, 2000
WRITTEN SUBMISSIONS:
ALAIN JOFFE FOR THE APPLICANTS
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALAIN JOFFE FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA