T-2992-96
OTTAWA, ONTARIO, FRIDAY, JUNE 27, 1997
PRESENT: MR. JUSTICE NADON
BETWEEN:
SERGEY SKOROKHODOV,
NATALI SKOROKHODOVA and
MARINA SKOROKHODOVA,
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
O R D E R
The application to set aside the decisions of McGillis J. dated November 14, 1996 and February 14, 1997 is dismissed.
"MARC NADON"
Judge
Certified true translation
C. Delon, LL.L.
T-2992-96
BETWEEN:
SERGEY SKOROKHODOV,
NATALI SKOROKHODOVA and
MARINA SKOROKHODOVA,
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
NADON J.:
On July 30, 1996, the Immigration and Refugee Board (the "tribunal") rejected the applicants' refugee claim on the ground, inter alia, that they were not credible.
On August 27, 1996, the applicants filed an application for leave and for judicial review of the tribunal's decision. On September 6, 1996, counsel for the respondent wrote to the administrator of the Court to point out that the application for leave and for judicial review had not been filed in time, that is, by August 28, 1996.
On September 20, 1996, the applicants filed a motion to have service of the application for leave and for judicial review, which was effected on the respondent's solicitors on August 29, 1996, regularized. On September 26, 1996, McGillis J. allowed the applicants' motion. The order made by my colleague reads as follows:
| The application is granted and the applicants will have 10 days from the present order to file the "APPLICATION FOR LEAVE AND FOR JUDICIAL REVIEW". |
Accordingly, the applicants had until October 6 to refile their application for leave and for judicial review. On November 14, 1996, the applicants having failed to comply with her order of September 26, 1996, McGillis J. dismissed the application for leave and for judicial review.
On January 3, 1997, the applicants filed a motion under Rule 337(5) of the Federal Court Rules entitled "REQUEST AND MOTION FOR RECONSIDERATION OF JUDGMENT RENDERED". On February 14, 1997, McGillis J. made the following order:
| Upon reviewing the file in this matter, I have concluded that the applicants have failed to establish that my Order dated November 14, 1996 ought to be varied on one of the grounds specified in Rule 337(5) of the Federal Court Rules. However, I wish to indicate that I have read the application record, the memorandum of the respondent and the applicants' reply. In my opinion, the applicants have not established that their application raises a serious question to be tried. In the circumstances, the applicants will suffer no prejudice by reason of my refusal to vary my earlier order. |
On April 1, 1997, the applicants filed a motion under Rules 319 and 1733 seeking to have the orders made by McGillis J. on November 14, 1996 and February 14, 1997 set aside. It is this motion that I must dispose of. The hearing of this motion was held at Montréal on April 21, 1997. At the end of the hearing, I gave the parties two weeks to make submissions to me with respect to a question to be certified. The parties provided me with their submissions and they are in agreement that, in this instance, the Court cannot certify a question since the judgment that I am going to make may be appealed as of right under section 27 of the Federal Court Act. The position that the parties have taken is sound. Accordingly, no question will be certified.
As set out in their motion, the applicants are relying on the following grounds in seeking to have the judgments of McGillis J. set aside and to be given an extension of the time for filing their application for leave and for judicial review:
[translation]
| 1. The applicants learned after the judgments in this case were delivered that proceedings had been commenced on their behalf, and of the omission [sic], errors and negligence committed in respect thereof, as more fully described in the affidavit in support of this motion; |
| 2. The applicants learned after the judgments in this case were delivered that evidence had been given by an expert witness and placed in their file at the IRB; |
The motion is supported by an affidavit by one of the applicants, Sergey Skorokhodov, dated March 28, 1997. The deponent declares, in paragraph 12 of his affidavit, that he met with a new lawyer, Johanne Doyon,1 on February 13, 1997, and that he then [translation] "learned on that date and subsequently for subparagraphs (v) and (vi)" the following facts:
| (i) that there was no procedure for appealing from the decision I had received from the IRB and for which I had instructed my counsel; |
| (ii) that the proceedings commenced by my counsel were different from an appeal, and moreover, that those proceedings, the application for leave and for judicial review that had been filed, had not been served in accordance with the Act; |
| (iii) that an application for an extension of time should have been successfully filed but that the lawyer had failed or neglected to comply with the content of the order; |
| (iv) that the application for leave and for judicial review had been dismissed for that reason on November 28, 1996; |
| (v) that an "applicant's record" had been filed on my behalf but that it contained, inter alia, either allegations that did not relate to my case and the impugned decision and/or unsupported or unexplained allegations that failed to address the issues; |
| (vi) that on December 30, 1996, a motion for reconsideration of a judgment had been filed by the lawyer but that it was dismissed on 14-02-97; |
In addition, the deponent stated that he had learned all of the aforementioned facts on February 13, 1997 [translation] "only, or subsequently", for the first time.
Rule 1733 of the Rules of this Court reads as follows:
| A party entitled to maintain an action for the reversal or variation of a judgment or order upon the ground of matter arising subsequent to the making thereof or subsequently discovered, or to impeach a judgment or order on the ground of fraud, may make an application in the action or other proceeding in which such judgment or order was delivered or made for the relief claimed. |
In short, the applicants contend that they discovered, or learned, subsequent to the orders made by McGillis J., that their former counsel, Mr. Karpishka, had been negligent and had made errors in relation to the proceedings he had commenced subsequent to the judgment rendered by the tribunal on July 30, 1996. Moreover, the applicants claim that they learned, again subsequent to the orders made by McGillis J., that the testimony of an expert witness concerning the situation of minorities in Kazakhstan had been filed in evidence before the tribunal. In its decision, the tribunal does not make any mention of or reference to that testimony.
In Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189, the Federal Court of Appeal had to dispose of a motion to set aside an order it had made earlier dismissing an application by the applicant for leave to appeal from a decision of the Immigration Appeal Board. The applicant's motion was brought under Rule 1733. At pages 196 to 203 of his judgment, Stone J.A. of the Federal Court of Appeal stated, with respect to that Rule:
| [Rule 1733] appears in Part VI, "Rules Re Special Cases and Particular Problems", under a sub-heading entitled "Setting Aside Judgments for New Matter or Fraud". Such a Rule was not among the General Rules and Orders of the Exchequer Court of Canada which passed out of existence with the establishing of the Federal Court of Canada in 1971. |
...
| The Rule must be seen as exceptional. It purports to permit relief in an action or proceeding subsequent to its disposition by solemn pronouncement of the Court even though that relief would be at variance or even wholly contrary to that pronouncement. Yet, if it covers an application the Court may grant relief. Obviously, a case would have to be a clear one before the Court will be induced to act under the Rule. Otherwise, the finality of judgments would be imperilled and that would be bad. |
| I would note that the availability of relief for the discovery of new matter or for fraud depends initially upon a claimant bringing his application within the language found in the first part of the Rule. I repeat that language to the extent necessary for the sake of convenience: |
| A party entitled to maintain an action for the reversal or variation of a judgment or order upon the ground of matter ... subsequently discovered ... |
| What is meant by those words? Unfortunately, we do not have the guidance of a previous decision of this Court to assist us. That may be explained in part by the fact that Rule 1733 is as new to this Court as this Court is itself. On the other hand, as will be seen shortly, a somewhat similar rule has been a feature of the rules governing practice in the Supreme Court of Ontario for almost 100 years. As the language of Rule 1733 is obscure in some respects, I think it may be useful to consider its derivation in the light of that rule and the practice that prevailed before it was first adopted. |
| At the time Rule 1733 was adopted, the Ontario Rules of Practice [R.R.O. 1980, Reg. 540] contained Rule 529 reading as follows: |
| 539. A party entitled to maintain an action for the reversal or variation of a judgment or order upon the ground of matter arising subsequent to the making thereof or subsequently discovered, or to impeach a judgment or order on the ground of fraud, or to suspend the operation of a judgment or order, or to carry a judgment or order in to operation, or to any further or other relief than that originally awarded, may move in the action for the relief claimed. |
| Though it is broader in scope, the common features of both rules lead me to think that our Rule 1733 was drafted with an eye to the Ontario Rule. That Rule made its appearance in Ontario in 1888 as Rule 782 following the merger of the courts of common law and equity and has been continued in effect with minor variations down to 1985 when it was replaced by a new Rule (Rule 59.06(2) [Rules of Civil Procedure, O. Reg. 560-84]). But, even before the merger, a still earlier version appeared in the Chancery Orders of the old Ontario Chancery Court as Order 330 under Part XXVI, "Proceedings to Reverse, Alter, or Explain, Decrees, or Orders" [see Holmested's Rules and Orders, 1884, Vol. 1, p. 177]. It may be useful to compare its full text with that of the later rules. It dates at least to 1853 and read: |
| 330. Any party entitled by the former practice to file a bill of review, praying the variation or reversal of an order, upon the ground of matter arising subsequent to the order, or subsequently discovered, or a bill in the nature of a bill of review, or a bill to impeach a decree on the ground of fraud, or a bill to suspend the operation of a decree, or a bill to carry a decree into operation, is to proceed by petition in the cause, praying the relief which is sought, and stating the grounds upon which it is claimed. |
| The "former practice", it appears, was based at least in part upon the practice of the old Court of Chancery in England which had power to vary or reverse a decree even after its sealing and enrolment, inter alia, upon the discovery of new matter or upon the ground that the degree was obtained by fraud. That practice is discussed by the text-writers (see e.g. Mitford's A Treatise on the Pleadings in Suits in the Court of Chancery, (5th ed., 1847) at page 101 et seq.; Story's Commentaries on Equity Pleadings and the Incidents Thereof, (10th ed., 1892) at page 386 et seq. and Daniell's Chancery Practice, (8th ed., 1914), Vol. 2 at page 1327 et seq.). It did not, however, allow for relief upon a motion in the original action. Relief was available only by way of a bill of review which, in effect, was a fresh action allowing for the reversal or variation of the original decree. If the case was one of fraud, a bill of review could be secured without leave of the Court. On the other hand, if it involved discovery of new matter the practice was slightly different. It was described by Jessel M.R. in Flower v. Lloyd (1877), 6 Ch.D. 297 (C.A.), at page 300: |
| There was another totally different class of cases where you discovered subsequent matter which showed that the decree was wrong, although there had been no fraud in obtaining it. That was called a supplemental bill in the nature of a bill of review, which brought the new matter forward, and again enabled the Court to do justice and get rid of the original decree. That always required leave. |
| I would stress, however, that leave would not be granted under the old practice unless the Court was first satisfied of certain essential prerequisites which were developed in England but were applied in Ontario as well. They are mentioned in Dumble v. Cobourg and Peterborough R. W. Co. (1881), 29 Gr. 121 (Ch.) where Ferguson stated at pages 132-133: |
| This petition is one in the nature of a bill of review on the ground of having discovered some new evidence, and the case of Hoskin v. Terry ((1862) 15 Moore's P.C.C. 493, 8 Jur. N.S. 975), seems to be a leading if not the leading case on the subject. That case was an appeal to reverse an order made by the Supreme Court of the colony of New South Wales, and Lord Kingsdown, who delivered the judgment of the Court, said: "The rule which we collect from the cases cited in the argument is this, that the party who applies for permission to file a bill of review on the ground of having discovered new evidence, must show that the matter so discovered has come to the knowledge of himself and of his agents for the first time since the period which he could have made use of it in the suit, and that it could not with reasonable diligence have been discovered sooner; and secondly, that it is of such a character that if it had been brought forward in the suit it might probably have altered the judgment." And after commenting on the evidence in that case, his Lordship repeated the language of Lord Eldon, in Young v. Keighly (16 Ves. 348), which was as follows: "The evidence, the discovery of which is supposed to form a ground for this application, is very material, and I am persuaded that by refusing this application I decide against the plaintiff in a case in which he might perhaps with confidence have contended that upon the evidence he was entitled to the whole money: on the other hand it is most incumbent on the Court to take care that the same subject shall not be put in course of repeated litigation, and that with a view to the termination of suits the necessity of using reasonably active diligence in the first instance should be imposed upon parties; the Court, therefore, must not be induced, by any persuasions as to the fact that the plaintiff had originally a demand which he could clearly have sustained, to break down rules established to prevent general mischief, at the expense even of particular injury. (Emphasis added.) |
| In my view these tests also apply for the purposes of Rule 1733 to "matter ... subsequently discovered". |
| Ontario Chancery Order 330 provided a summary way of securing relief by "petition in the cause" instead of by a fresh action and it is apparent that Ontario Rule 529 and its predecessor rules carried that concept forward. That rule enabled the party complaining "to move in the action" making it no longer necessary to seek relief by way of a bill of review or of a supplemental bill in the nature of a bill of review although, in Ontario, it remained open to proceed either by way of motion or by fresh action in the Court which heard the original action. (See e.g. Smith v. Merchants Bank of Canada (1917), 40 O.L.R. 309 (C.A.), at page 316.) |
| The question whether this application is covered by Rule 1733 is, of course, one of interpretation. Nevertheless, I derive some assistance from this look back at the old practice and to the development of the Ontario rule after which, I think, Rule 1733 is probably patterned. It is not sufficient merely that a party has discovered new matter. Relief is not available under the Rule unless the aforementioned prerequisites are first met to the satisfaction of the Court. I am satisfied that our Rule 1733 does not limit "matter" subsequently discovered to fresh evidence subsequently discovered. It authorizes the Court to look at any relevant new "matter". No doubt the most common matter will be evidence subsequently discovered and, indeed, many of the decided cases are of that type. It is significant that the word "matter" is used in this Rule rather than the word "evidence". This is to be contrasted with Rule 1102(1), for example, which authorizes this Court to "receive evidence or further evidence upon any question of fact" (emphasis added). |
(footnotes omitted)
It is clear from that decision that in order to meet the requirements of Rule 1733 an applicant must show that he or she came to the knowledge of the new matter cited only subsequent to the decisions sought to be set aside, that this matter could not with reasonable diligence have been discovered earlier and that this matter is such that if it had been brought to the attention of the Court it might probably have altered the judgment.
Before proceeding, it is necessary, in my view, to refer to another decision, the decision of the Federal Court of Appeal in Moutisheva v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 212. In that case, the applicants Moutisheva and Stefanov had brought a motion to set aside a judgment of the Court of Appeal dismissing their appeal on the ground that they had not prosecuted their appeal with the necessary diligence.
In order to understand the decision of the Court of Appeal, it is essential to briefly summarize the relevant facts. On August 9, 1991, counsel for the applicants had filed a notice of appeal. The appeal case was sent to the parties on July 9, 1992. On September 23, 1992, counsel for the Minister informed counsel for the applicants that the time provided by Rule 1307 for filing their memorandum had expired and, accordingly, that the Minister was expecting it without delay. On October 21, 1992, counsel for the Minister reiterated their request for the applicants' memorandum. On January 21, 1993, counsel for the Minister filed a motion to dismiss the notice of appeal. That motion was served on counsel for the applicants on January 22, 1993.
On two occasions, a registry employee at the Federal Court wrote to counsel for the applicants Moutisheva and Stefanov to inquire whether he intended to file his memorandum as required by Rule 1307. On March 1, 1993, another registry employee wrote to counsel for the applicants by registered mail asking him whether he was going to file his memorandum. No reply was received from counsel for the applicants, and so the Court of Appeal dismissed the applicants' appeal on March 25, 1993.
In support of the motion to set aside the judgment of March 25, 1993, the applicants filed an affidavit stating that they had met with their lawyer during October and December 1992 and in February and April 1993 and that he had not informed them that a motion to dismiss had been made and allowed by the Court of Appeal. According to the affidavit, the applicants did not learn that their appeal had been dismissed until April 17, 1993. The same day, they contacted their lawyer who confirmed that the appeal had been dismissed. Four months later, on August 9, 1993, the applicants retained a new lawyer to have the judgment dismissing their appeal set aside.
The issue as stated by Létourneau J. of the Federal Court, at page 215, was as follows:
| In general, the new counsel for the applicants argued that this Court's judgment should be set aside on the ground that the applicants were victims of misrepresentation and fraud. These fraudulent acts allegedly arose from the fact that the applicants were not told either by their counsel or by this Court of the existence of an application to dismiss the appeal. |
Létourneau J. disposed of the applicants' argument that they had been victims of misrepresentation and fraud on the part of their lawyer as follows, at page 217:
| It would suffice to dispose of this argument, so far as the misrepresentation by their counsel of which the applicants were allegedly victims is concerned, to say that there is not sufficient evidence in the record to establish that counsel for the applicants was guilty of misrepresentation towards them. It is not this Court's function on the application at bar to assess the behaviour of counsel for the applicants in his relationship as agent, his competence or the quality of the services he may have rendered. |
| Further, inaction by counsel in a case, while it may be negligence toward the client he is representing, is not necessarily fraud or misrepresentation and is certainly not fraud on the Court which could be a basis under Rule 1733 for setting aside a judgment made under Rule 1308 specifically because of such inaction. Similarly, the omission by counsel for the applicants to inform his clients that a motion to dismiss the appeal existed, while it may be a basis for other civil or disciplinary remedies, cannot constitute fraud on the Court that would vitiate the judgment to dismiss rendered by the Court as a consequence of delay by the said counsel to prosecute the appeal he had filed. |
In my opinion, the remarks of Létourneau J. are sufficient to dispose of the applicants' argument, in the instant case, that the discovery of Mr. Karpishka's alleged negligence means that they may rely on Rule 1733. In my opinion, that argument is not sound. I cannot see how the facts in Moutisheva can be distinguished from the facts before me. In the instant case, as in Moutisheva, the applicants are alleging the discovery of errors and omissions by their former counsel as grounds for relying on Rule 1733.
It is true that, unlike the applicants in Moutisheva, the applicants in the instant case are not alleging any "fraud" on the part of their lawyer. The remarks of Létourneau J. are nonetheless relevant. In my opinion, the discovery of Mr. Karpishka's negligence does not constitute "matter arising subsequent to the making thereof or subsequently discovered, ...", such as would lead to setting aside the impugned judgments. Mr. Karpishka, the applicants' lawyer, was their "agent". In my opinion, the applicants cannot rely on his negligence to have the orders made by McGillis J. set aside.
The other fact on which the applicants relied in support of their motion is that they were not aware that the testimony of an expert witness, a Mr. Girol, which was given before the tribunal in another case on November 10, 1995, had been filed in evidence at their hearing on November 20, 1995.
According to the affidavit of the applicant Sergey Skorokhodov, he was not aware of Mr. Girol's testimony until March 12, 1997, when he had a chance to hear the cassette tape recording of the hearing of November 20, 1995. According to Sergey Skorokhodov, Mr. Girol's testimony is of great importance, and the tribunal made no mention whatsoever of it in its decision. Accordingly, the applicants say, the tribunal erred in failing to consider the expert testimony. This, in short, is the position of the applicants concerning the discovery of Mr. Girol's testimony.
As set out at page 7 of the transcript of the hearing on November 20, 1995, Mr. Girol's testimony, which was filed at the hearing, had been given in file no. M94-06616 on November 10, 1995. At the hearing on November 20, 1995, the applicants were represented by Sylvie Lévesque. Accordingly, the evidence given by Mr. Girol was filed at the hearing in the presence of the applicants and their lawyer.
At paragraph 18 of his affidavit the applicant Sergey Skorokhodov asserts that he had no knowledge of the filing of Mr. Girol's testimony. He states:
[translation]
| The evidence filed before the IRB comprised the testimony of an expert witness concerning the situation in Kasakhstan which was filed in evidence (from another case in which that witness had appeared), without my knowledge and without the comments that appear at page 7 of the transcript being translated to me at the hearing by the interpreter, as set out in the transcript filed in support hereof as Exhibit R-2; |
As I said earlier, the applicants were represented at the hearing by Sylvie Lévesque, a lawyer. There is no evidence in the record that Ms. Lévesque was not aware that the expert evidence was being filed. Moreover, an interpreter was present at that hearing, a Mr. Kramer, who was duly sworn at the beginning of the hearing. Mr. Kramer took the following oath:
[translation]
| I solemnly affirm that I shall translate or interpret conscientiously and accurately all questions asked, answers given and statements made at the hearing, and any documents that the Board may require me to translate or interpret in the course of the hearing. |
| (pages 1 and 2 of the transcript of the hearing of November 20, 1995) |
In my opinion, the applicants cannot argue that the expert's testimony was filed in the record during the hearing without their knowledge.
For these reasons, I am of the opinion that the applicants' motion must be dismissed.
"MARC NADON"
Judge
Ottawa, Ontario
This 27th day of June 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-2992-96
STYLE OF CAUSE: SKOROKHODOV ET AL v. MCI
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: APRIL 21, 1997
REASONS FOR ORDER OF NADON J.
DATED: JUNE 27, 1997
APPEARANCES:
Johanne Doyon FOR THE APPLICANTS
Marie-Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon, Guertin, Montbriand & Plamondon FOR THE APPLICANTS
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Before the tribunal, the applicants were represented by Sylvie Lévesque; in this Court, until Madam Justice McGillis made her order on February 14, 1997, the applicants were represented by Roman B. Karpishka.