Date: 20000802
Docket: IMM-5047-99
BETWEEN:
SANDOR LASZLONE SMAJDA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for: first, an order setting aside the order of Cullen J. dated the 28th of January, 2000, dismissing the applicant"s application for leave and granting leave; and second, a corresponding order staying the removal of the applicant scheduled for the 3rd of August, 2000. Following submissions by counsel on the first requested relief, I indicated that I was going to dismiss the application for that relief. Counsel were in agreement that, in the result, the second relief requested would not be open. These brief reasons reflect the basis for my rejection of the first requested relief.
[2] Counsel for the applicant urged that I should set aside or vary the order of Mr. Justice Cullen dated the 28th of January, 2000 in which he dismissed the applicant"s application for leave on the authority of Rule 399(2)(a) of the Federal Court Rules, 19981, the relevant portion of which read as follows:
| (2) On motion, the Court may set aside or vary an order (a) by reason of a matter that ... was discovered subsequent to the making of the order; or ... |
(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants : a) des faits nouveaux ... ont été découverts après que l'ordonnance a été rendue; ... |
| [3] The matter alleged to have been discovered subsequent to the making of Mr. Justice Cullen"s order was an order of Mr. Justice MacKay granting leave on an application for judicial review of a decision relating to family members of the applicant who, it was alleged, were similarly situated to the applicant. No evidence was put before me to establish that Justice MacKay"s order did not come to the attention of counsel for the persons to whom it related, being the same counsel as counsel for the applicant in this matter, after, or even close to the date on which Mr. Justice Cullen reached his decision. Further, no evidence was put before me to establish why the order of Mr. Justice MacKay was not drawn to the attention of the Court so that it could have been before Mr. Justice Cullen when he considered the question of leave on the applicant"s application for leave and judicial review. Finally, no evidence was put before me that might indicate that Mr. Justice MacKay"s decision would have influenced Mr. Justice Cullen to reach a different decision on the applicant"s application for leave. |
| [4] In Saywack v. Canada (Minister of Employment and Immigration)2, the Court of Appeal considered the meaning and application of a predecessor Rule to the portion of Rule 399 that is relevant to this matter. Mr. Justice Stone, writing for the Court, wrote at pages 197 and 198: |
| 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 grand 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. |
| [5] By reference to "former practice" based at least in part upon the practice of the Court of Chancery in England, Mr. Justice Stone concluded that, in order to fall within the former Rule, first, the thing discovered had to be a "matter", second the matter had to have been discovered subsequent to the making of, in this case, Mr. Justice Cullen"s order and could not with reasonable diligence have been discovered sooner, and finally, the matter had to be of such character that, if it had been brought forward before, in this case the order of Mr. Justice Cullen, was issued, it would have altered that order. |
| [6] On the evidence before the Court in this matter, I am satisfied that the order of Mr. Justice MacKay was a "matter". I am not satisfied that Mr. Justice MacKay"s order was "discovered" subsequent to the making of Mr. Justice Cullen"s order. It was discovered, or ought reasonably to have been discovered, well in advance of the date of Mr. Justice Cullen"s order. Finally, I regard it as highly speculative to attempt to predict whether Mr. Justice Cullen would have reached a different conclusion with respect to the applicant"s application for leave if he had been aware of the order of Mr. Justice MacKay. |
| [7] Against the cautionary note sounded by Mr. Justice Stone in Saywack, supra, and against my application of the relevant portions of Rule 399(2) to the evidence before me, I conclude that it would not be appropriate for me to set aside the order of Mr. Justice Cullen. In the result, the first relief requested by the applicant will not be granted. Given that result, the second relief requested is simply not open. |
| [8] In the result, the application before me will be dismissed in its entirety. |
| "Frederick E. Gibson" |
| J.F.C.C. |
| Toronto, Ontario |
| August 2, 2000 |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5047-99 |
| STYLE OF CAUSE: SANDOR LASZLONE SMAJDA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: MONDAY, JULY 31, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: WEDNESDAY, AUGUST 2, 2000
| APPEARANCES BY: Mr. William Naylor |
| For the Applicant |
| Ms. Candice Welsch |
For the Respondent
| SOLICITORS OF RECORD: Galati, Rodrigues, Azevedo & Associates |
Barristers & Solicitors
203-637 College Street
Toronto, Ontario
M5G 1B5
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000802
Docket: IMM-5047-99
BETWEEN:
| SANDOR LASZLONE SMAJDA |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
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