Date: 20021108
Docket: IMM-3562-01
Neutral citation: 2002 FCT 1157
OTTAWA, ONTARIO, THIS 8th DAY OF NOVEMBER, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
INDERJIT SINGH KHROUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion for:
(a) An order for reconsideration of the application for judicial review;
(b) An order permitting the applicant to file an affidavit outside the time allowed under the Federal Court Immigration Rules, 1993, SOR/93-22, as amended, and the Federal Court Rules, 1998, SOR/98-106; and
(c) An extension of time to bring the present motion.
[2] I dismissed the applicant's application for judicial review on June 3, 2002, on the ground that the file was inactive for over 180 days in accordance with Rule 380(1)(b) of the Federal Court Rules, 1998. The applicant also had not filed any submissions in response to the Notice of Status Review. Upon reading the applicant's submissions which had been submitted after the Status Review, the order was amended in light of consideration of additional evidence on June 21, 2002, however the result remained the same.
[3] The applicant repeatedly omitted to respect the time frames set out by the Rules and brought various motions for extension of time in order to file documents required in support of his application for judicial review.
[4] On September 21, 2001, the applicant brought a motion in writing for an extension of time to file an affidavit which had not been filed. The applicant's counsel, at the time, indicated that the oversight of not filing the affidavit had been discovered at a time when he was overwhelmed with work and he had been only able to attend to it two weeks later. The motion was opposed by the respondent and on October 26, 2001, Prothonotary Giles [as he then was] ordered the extension of the time for serving and filing the affidavit to November 13, 2001.
[5] On November 12, 2001, the Court was informed by notice of the appointment of Mr. Amrik Birdi as his Solicitor of Record replacing Mr. Manjit Singh Mangat. The last entry in the file was made by the respondent who filed the visa officer's affidavit on December 12, 2001.
[6] However, the applicant never filed an affidavit as per his motion for extension of time and the order of the Prothonotary. Instead, Mr. Amrik filed on November 13, 2001, an affidavit sworn by the applicant's former counsel Mr. Manjit Singh Mangat, which simply stated that he was a cousin of the applicant and that he attended law school with him in India. It was also indicated in the affidavit that the applicant had been performing the duties of a legal assistant/assistant lawyer and that he was willing to hire him as his legal assistant, which information was never put in front of the visa officer as per her affidavit. The remainder of the affidavit was constituted essentially of a copy of the record.
[7] By order dated March 15, 2002, Lemieux J. required the applicant to show cause why the application should not be dismissed for delay by April 15, 2002. Ten days later, the applicant served the respondent with a motion for an extension of time to file his submission which was opposed by the respondent. This motion and the application for judicial review were both dismissed in accordance with the order of June 3, 2002, and the amended order of June 21, 2002, as indicated above.
[8] The grounds for the inactivity of the file, considered by the Court before dismissing the application, were the fact that the applicant's solicitor had been disbarred without his knowledge and that he honestly believed that his case was taken care of in accordance with the appropriate procedure and according to the applicable time frames. Unfortunately, this was not the case and the application for judicial review was dismissed after the applicant was unable to show cause for the delay during the Status Review of his file by the Court.
[9] The applicant's counsel, Mr. Jaswant Singh Mangat, filed this motion for reconsideration on September 25, 2002, more than three months after the order. This exceeds the 10 day limit set out in Rule 397 of the Federal Court Rules, 1998. This provision reads as follows:
| 397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it;
or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. |
|
397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour. |
[10] This Rule allows the Court to reconsider an order to deal with any inadvertent mistakes or omissions and to correct any clerical errors or mistakes in the order. A motion under this Rule must be brought within 10 days of the order "or within such other time as the Court may allow" to the same Court that made the initial order.
[11] The Federal Court of Appeal in Boateng v. Canada (Minister of Employment and Immigration) (1990), 112 N.R. 318, dismissed an application to extend the deadline for filing an affidavit on the basis that the applicant had not established any reasons for the delay. A few days later, the applicant asked Mahoney J.A. [as he then was] to reconsider his decision on the ground that the paragraphs explaining the delay had been omitted from the application. He concluded as follows:
In my opinion, the failure of a party to include available material does not give rise to jurisdiction to reconsider a decision finally disposing of the matter. That rule contemplates oversight on the part of the Court, not a party, vid. Kramer v. R. [1976] 1 F.C. 242; Maligne Building Ltd. v. R. [1983] 2 F.C. 301.
[12] In the case at bar, as submitted by the respondent, the material filed by the applicant does not establish that this Court either overlooked or accidentally failed to consider any relevant material or evidence when making its decision to dismiss the application for judicial review. Furthermore, the applicant provided no justification for waiting over three months before bringing the current motion for reconsideration. Therefore, I am not satisfied that this is an exceptional case where I should derogate from the 10 day limit set out in Rule 397 of the Federal Court Rules, 1998, and accept this motion more than three months after the order.
[13] It has also been established that reconsideration of a final decision is only allowed in the narrowest of circumstances. In Metodieva v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 38 ("Metodieva") and Rostamian v. Canada (Minister of Employment and Immigration) (1991), 129 N.R. 394, the Federal Court of Appeal concluded that it is important to respect the finality of judgments and the Court should not set aside a decision lightly.
[14] Specifically in Metodieva, supra, the Court stated as follows:
I think it is important to point out that the Court does not have jurisdiction to decide the matter again, and that this is so whatever the reason for dismissing the first application for leave. In the case at bar, the order of December 18, 1990 read [sic] as follows: "The application, being unsupported by affidavit or other material, is dismissed", and counsel for the applicant used this wording as a basis for telling his client " that as she is a foreigner in Canada, she cannot be a victim of procedural error by her counsel". That statement seems to me to be incorrect in three ways. First, the fact that an application was dismissed for a procedural defect does not in any way change the fact that the order made is final and not subject to be reconsidered, apart from the allowable cases. Second, the absence of an affidavit is a substantive defect: Rule 9(1) of the Federal Court Immigration Rules makes the filing of an affidavit an integral part of the application and an application for leave not supported by an affidavit is incomplete and cannot be allowed by the Court. Thirdly, the fact that the applicant is "a foreigner in Canada" does not confer on her any privilege to be ignorant of Canadian law or any special status in respect of errors which may be made by her or by her counsel.
[15] In the case at bar, I do not find that evidence, facts or any other matter have been overlooked during the first determination which would warrant reconsideration of the previous order. Essentially, the applicant raised the same grounds in the present motion as in the previous one in which I did not find reasons to grant the motion. Therefore, I would dismiss the current motion for reconsideration. Following this finding, the order sought to permit the applicant to file an affidavit outside the time allowed under theFederal Court Rules, 1998, does not have to be addressed.
[16] Finally, the respondent seeks, in light of all the circumstances set out in its submissions, in particular with regard to the multiple motions brought by the applicant, the three months delay in bringing this motion, and the fact that this motion is clearly without merit, costs in the amount of $300.00. I find that these circumstances do warrant a special costs allowance as per the respondent's request.
ORDER
The motion for an order extending the time to file a motion for reconsideration and for reconsideration of the within application for judicial review is denied with costs in the amount of $300.00 to be awarded to the respondent.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3562-01
STYLE OF CAUSE: INDERJIT SINGH KHROUD
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MOTION DEALT WITH IN WRITING ON NOVEMBER 8, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: NOVEMBER 8, 2002
WRITTEN REPRESENTATIONS BY:
MR. AMRIK BIRDI FOR THE APPLICANT
MS. ANGELA MARINOS FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. AMRIK BIRDI FOR THE APPLICANT
Barrister & Solicitor
Mississauga, ON
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA