Date: 20030915
Docket: IMM-3844-03
Citation: 2003 FC 1060
Ottawa, Ontario, this 15th day of September, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SAI YIN ZHOU
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] The applicant brings a motion pursuant to Rule 51(1) of the Federal Court Rules SOR/98-106 (the Rules) to appeal the August 5, 2003, decision of Prothonotary Lafrenière dismissing the applicant's motion to introduce additional evidence and arguments in support of an application for leave and for judicial review. Rule 51(1) provides that an order of a prothonotary may be appealed by a motion to a judge of the Federal Court Trial Division. The applicant seeks an order allowing the appeal, and allowing the presentation of further evidence and arguments in support of his application for leave.
Background
[2] On May 23, 2003, the applicant filed his application for leave and judicial review in respect to a negative decision of a Pre-Removal Risk Assessment (PRRA) Officer decision rendered on March 25, 2003. He perfected his application on June 20, 2003, by serving and filing an application record. The applicant then brought a motion to stay his removal, which was granted by Noël J. on June 25, 2003.
[3] On July 18, 2003, the respondent served and filed his memorandum of argument in response to the applicant's record. The applicant then brought a motion on July 21, 2003, to file additional evidence and argument in support of his application for leave. The additional evidence sought to be introduced includes materials filed on his stay motion argued on June 25. The Applicant argued that it was in the interests of justice that he be permitted to introduce this evidence and arguments.
[4] By order dated August 5, 2003, Prothonotary Lafrenière dismissed the motion, holding that the applicant had not established that the "further evidence and argument" were not available at the time he perfected his record, or that it could not have been adduced earlier. He reasoned as follows:
The Applicant submits that it is in the interests of justice that he be permitted to introduce what he characterizes as "further evidence and arguments". The Applicant has failed, however, to establish that the evidence in question was not available at the time he perfected his record, or that it could not have been adduced earlier, had he exercised some diligence. Moreover, the Applicant provides no explanation for his delay in bringing the present motion. It appears that the "further" evidence was available to the Applicant at the very latest by June 25, 2003. Yet, he took no steps to seek leave to introduce additional materials until almost month later and, coincidentally, only four days after being served with the Respondent's memorandum of argument.
[5] The Prothonotary relied on Nguyen v. MCI, [1999] F.C.J. No. 1343 (QL), for the proposition that an applicant who is permitted to submit a new affidavit and expanded memorandum of fact and law after counsel for the Minister has responded to the original record may give the applicant an inappropriate advantage. The Prothonotary dismissed the motion on the grounds that the applicant had not justified the delay and that the respondent could suffer prejudice if the motion were granted.
Standard of Review
[6] Discretionary orders of prothonotaries ought not to be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the law, or they raise questions vital to the final issue of the case. In such circumstances, the judge ought to exercise his own discretion de novo: Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C. 425. It is clear that the motion does not deal with questions vital to the final issues of the application for leave. Hence, it must be established that the prothonotary was clearly wrong.
Analysis
[7] The essence of the applicant's argument on this appeal is that the prothonotary misapprehended the evidence before him. The applicant argues that he was not seeking to adduce new evidence, but simply to be allowed to submit further arguments on evidence that is already before the Court, namely slides from a video tape that were before the PRAA Officer. Consequently, the applicant contends that the prothonotary erred by finding that the applicant had failed to establish that "the evidence in question" was not available at the time he perfected his record, or that it could not have been adduced earlier, had the applicant exercised some diligence.
[8] Irrespective of whether the "slides" were in evidence at the time the motion to present further evidence was filed, the materials in issue, characterized by the applicant as "further evidence and argument", were clearly available to him at the time the stay motion was argued on June 25, 2003. Yet, the applicant waited one month to bring a motion to adduce this additional material, and only after the respondent filed his materials. Rule 10(1) of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22 (the Rules), provides that an applicant shall perfect an application within 30 days after filing the application, or within 30 days after receiving the written reasons for the decision. In this case, the 30-day period would expire on June 23, 2003, a month after the filing of the notice of application. The applicant elected to perfect his record on June 20, 2003. This decision signalled that the applicant's file was complete.
[9] To obtain an order for an extension of time to file a supplementary application record, the applicant is required to show justification for the delay. The applicant claims that as a result of perfecting his record early, the applicant was in a position to properly defend against the respondent's attempt to deport him on June 25, 2003, and consequently obtain a stay of execution of a deportation order. The applicant further submits that the respondent had notice of the further legal arguments as they were presented during the stay application orally and in writing, and therefore, the respondent would suffer no prejudice as a result of the introduction of these new materials.
[10] Even if I were to accept the applicant's contention that the respondent is already aware of the arguments sought to be introduced by an expanded memorandum of law and fact, this does not help the applicant's case. Under the Rules, the parties only have one opportunity to make their case, and that is when they file their respective records. Once the applicant has served his record, the respondent should be fully apprised of the applicant's evidence and arguments, and be in a position to prepare an informed response. In the circumstances of this case, to allow the applicant to file additional argument after the respondent has filed his record would be tantamount to allowing the applicant to "split his case". To prevent prejudice to the respondent, a sur-reply, which is not provided in the Rules, would have to be afforded the respondent. Such an expanded process is not anticipated in the Rules, and would not be in keeping with the philosophy of the Immigration and Refugee Protection Act and the Rules of this Court to process and determine summarily and expeditiously judicial review proceedings arising out of administrative tribunal decisions.
[11] I am of the view that the prothonotary did not err in the exercise of his discretion. In the absence of any compelling explanation for the delay, the prothonotary was not wrong in deciding as he did. The avoidance of delay in the processing of judicial review proceedings, and the potential prejudice to the respondent, are valid factors that were appropriately considered by the prothonotary.
[12] The applicant has failed to show that the prothonotary erred in any way, or that the motion raises questions vital to the outcome of this case.
Conclusion
[13] For the reasons set out above, the motion will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The applicant's motion pursuant to Rule 51(1) of the Federal Court Rules, 1998, SOR/98-106, to appeal the August 5, 2003, decision of Prothonotary Lafrenière is dismissed.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3844-03
STYLE OF CAUSE: Sasi Yin Zhou v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 25, 2003
REASONS FOR ORDER AND ORDER: THE HONOURABLE MR. JUSTICE BLANCHARD
DATED: September 15, 2003
APPEARANCES:
FOR APPLICANT
Sally Thomas FOR RESPONDENT
SOLICITORS OF RECORD:
Joel Etienne FOR APPLICANT
Unit 601-B - 1280 Finch Avenue West
Toronto, Ontario M3J 3K6
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General
Department of Justice
3400 - 130 King Street
Toronto, Ontario M5X 1K6
Docket: IMM-3844-03
BETWEEN:
SAI YIN ZHOU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER