Date: 19990818
Docket: IMM-3795-99
BETWEEN:
JOSEPH CHARLIE KURIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SHARLOW J.
[1] The applicant Joseph Charlie Kurian seeks an order extending the time for filing an application for judicial review of a decision of a visa officer. The Minister opposes the motion on the basis that the matter is res judicata because a previous application challenging the same order was summarily dismissed. The Minister argues, in the alternative, that Mr. Kurian has not established a reasonable excuse for the delay: Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (C.A.).
[2] An affidavit sworn by Mr. Kurian's agent on June 23, 1999 indicates that he received the decision letter from the visa officer on January 27, 1999. The agent says he was unable to reach Mr. Kurian until March 9, 1999. The agent also says Mr. Kurian informed him later that he was on leave and was travelling during that period, which is why he could not be reached.
[3] There is an affidavit of Mr. Kurian sworn May 7, 1999, but it does not explain where he was between January 27 and March 9, 1999. Therefore, there is no direct evidence as to why Mr. Kurian was not personally informed of the decision until March 9, 1999.
[4] In any event Mr. Kurian retained counsel who, believing that the time for commencing an application for judicial review started on March 9, 1999, filed an application for judicial review on April 7, 1999 (IMM-1774-99). I will call this the "first application."
[5] The Minister filed a motion on June 18, 1999 for an order dismissing the first application on the basis that it was filed late. In response, counsel for Mr. Kurian argued that his application was not out of time. In the alternative, he argued that Mr. Kurian should be given additional time on the basis of the principles in Grewal. In support of the Grewal argument, an affidavit of the agent was filed (it is the same affidavit that was filed in support of this application).
[6] The first application was dismissed by order of Reed J. dated July 20, 1999. No reasons for the order were given. From the material that was before her, I infer that she considered the Grewal argument. But in allowing the Minister's motion for summary dismissal of first application, she implicitly rejected the argument that an extension of time was warranted.
[7] If that is the case, then the doctrine of res judicata applies. It follows that the present application must be dismissed.
[8] It is possible that Reed J. disregarded the Grewal argument on the basis that counsel for Mr. Kurian did not file a motion for an extension of time. But the result is the same. Res judicata applies, not only to issues that have been decided on their merits by a previous court in an action involving the same parties, but to issues that could and should have been raised at that time.
[9] This is explained by the following passage from Thomas v. Trinidad and Tobago (Attorney General), (1990) 115 N.R. 313 (P.C.), adopted by the Federal Court of Appeal in Minister of National Revenue v. Chevron Canada Resources Ltd. (1998), 232 N.R. 44:
| It is in the public interest that there should be finality to litigation and that no person should be subjected to action at the instance of the same individual more than once in relation to the same issue. The principle applies not only where the remedy sought and the grounds therefor are the same in the second action as in the first but also where, the subject matter of the two actions being the same, it is sought to raise in the second action matters of fact or law directly related to the subject matter which could have been but were not raised in the first action. |
[10] Counsel for Mr. Kurian could and should have filed a motion for an extension of time in response to the Minister's motion for summary dismissal, so that both motions could be dealt with at the same time. It is not open to him to attempt that step after the Minister's motion for summary dismissal has succeeded.
ORDER
THIS COURT HEREBY ORDERS THAT:
| The motion for an extension of time is dismissed. As costs were not sought by the Respondent, none are awarded. |
"Karen R. Sharlow"
Judge
Toronto, Ontario
August 18, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-516-98 |
| STYLE OF CAUSE: HAT HO |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO, PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: SHARLOW J. |
DATED: WEDNESDAY, AUGUST 18, 1999
WRITTEN SUBMISSIONS BY: Mr. Max Chaudhary
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
| Barrister & Solicitor |
| 255 Duncan Mill Road, Suite 405 |
| North York, Ontario |
| M3B 3H9 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990818
Docket: IMM-3795-99
Between:
| JOSEPH CHARLIE KURIAN |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
| AND ORDER |