Date: 19980521
Docket: IMM-3549-97
BETWEEN:
JALIL ALI BAHRAMI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] These brief reasons involve the striking out, on the Court's own initiative, of an abandoned application for leave and for judicial review of a deportation Order made in July of 1997.
BACKGROUND
[2] The application was filed by the Applicant's solicitors in a timely manner on 29 August 1997 to which the Minister filed a notice of appearance. On 17 October 1997 Tita De Rousseau obtained an Order of removal as counsel of record. Mr. Bahrami, then incarcerated at the Drumheller Institution and unable to obtain legal aid assistance, applied ex parte and in writing on 4 November 1997 for an extension of time within which to serve and file his application record. By Order of 19 November 1997 I required him to serve his motion and affidavit on the Department of Justice in Edmonton, attention of counsel who had entered the Crown's notice of appearance.
[3] In late March 1998, some four and a half months after the attempt to obtain the time extension ex parte, one of the Edmonton registry officers, not having received any evidence of service of the Applicant's motion for an extension of time, sought directions. Pursuant to that direction he wrote both the Applicant and Crown counsel on 3 April 1998 to the effect that in the absence of evidence of service of the motion for an extension of time I would consider dismissing the whole application for leave and for judicial review on 20 May 1998, being a motions day at Edmonton. There was neither any response nor the return of either of the letters to Mr. Bahrami or to the Department of Justice to indicate that the letter from the registry had not been delivered.
CONSIDERATION
[4] While it is a function of courts to provide facilities and services to litigants, courts can no longer afford to be at the beck and call of litigants, but must allocate their resources to give the best possible overall result. Litigants, in return, have obligations both to the courts and to taxpayers, including the duty to properly determine, not merely abandon, their litigation. Abandoned actions and applications, which must still be carried and administered by the courts, are a cost, both time and money, not only to the courts, but also to taxpayers. This is perhaps one of the reasons for the former rule 1617.
[5] Rule 1617 allowed the Federal Court, on its own initiative and with at least ten days notice to the parties, to dismiss a judicial review application for undue delay. Judicial review is a summary procedure with strict time limits designed to make reasonably quick determinations. A delay of some four and half months, not only in the simple matter of serving a motion and filing proof of service, but also in ignoring inquiries and correspondence from the Court, is both an abuse and inordinate delay.
[6] We no longer have an equivalent of rule 1617 allowing the Court, on its own initiative, to dismiss an application by reasons of delay. Rule 380(b), by which the Court might put pressure on the parties to file a discontinuance, will not come into effect to deal with a 1997 application, such as the present, until March of 1999. However the Court does have the implied jurisdiction to make its own procedural system work: see for example Margem Chartering Co. v. The Bocsa [1997] 2 F.C. 1001 at 1004-5 and Pawar v. Canada (1997) 132 F.T.R. 44 at 48.
[7] Recently courts have begun to dismiss actions not for want of prosecution, which requires an exploration of prejudice, but merely for delay. Here I have in mind Grovit v. Doctor [1997] 1 W.L.R. 640, a decision of the House of Lords. In Grovit v. Doctor the trial judge, who initially heard the motion, determined that there had been inordinate and inexcusable delay by a plaintiff with no interest in actively pursuing the litigation and thus dismissed the action for want of prosecution. The Court of Appeal upheld that decision, finding it wrong for a plaintiff to commence litigation which he had no intention of bringing to a conclusion in a timely manner and that such was an abuse of process. While the appellant in Grovit v. Doctor pursued the appeal of the dismissal with vigour, the House of Lords was satisfied that dismissal was a proper result. Lord Woolf who wrote the Judgment of the House of Lords, noted that by reason of an abuse of process through delay and in the absence of any real intention to press the case on to trial, the motions judge and the Court of Appeal were entitled to dismiss the proceedings.
[8] The approach in Grovit v. Doctor is similar to the concept that should a litigant engage in wholesale disregard of time limits set out in a Court's rules, such a breach should be considered not only from the point of view of prejudice to particular litigants, but also in the light of prejudice to the due administration of justice. Here I have in mind that to leave an action abandoned prejudices the court system and the adminstration of justice. As such it is a ground to dismiss separate and apart from the rule in Berkett v. James [1978] A.C. 297 (H.L.), a point recognized by the Court of Appeal in Arbuthnot Latham Bank Ltd. v. Trafalgar Holding Ltd., reported in The Times, 29 December 1997, where the court said that inordinate delay would become an increasingly important concept in the future, particulary with the introduction of court controlled case management.
CONCLUSION
[9] This application for judicial review is governed by summary procedure rules which make it clear that such proceedings are to be carried through with a minimum of delay. To inordinately delay and then to abandon a proceeding, as is the case here, and in a number of other files which the Court is carrying, is a costly abuse. This application for leave and for judicial review is dismissed by reason of inordinate delay. The parties shall bear their own costs.
"John Hargrave"
PROTHONOTARY
Vancouver, British Columbia
21 May 1998
SOLICITORS OF RECORD
COURT FILE NO.: IMM-3549-97
STYLE OF CAUSE: Jalil Ali Bahrami
v. The Minister of
Citizenship and Immigration
REASONS FOR ORDER: Mr. John A. Hargrave,
Prothonotary
DATE: May 21, 1998
SOLICITORS OF RECORD:
Jalil Ali Bahrami
c/o Calgary District Parole
510 - 12th Avenue, S.W.
CALGARY, Alberta T2R 0H3 for the Applicant
George Thomson
Deputy Attorney General of Canada for the Respondent