BETWEEN:
and
HER MAJESTY THE QUEEN IN RIGHT OF
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
REASONS FOR ORDER
[1] This is an edited version of the reasons delivered orally from the Bench on November 2, 2005, in the afternoon, at the trial of this action. Redundancies, syntax, grammatical, clerical mistakes, errors, omissions, or any wrong reference to cases cited herein have accordingly been corrected.
[2] On November 2, 2005, in the late morning, following the testimony of Dr. Khan, called on behalf of the Plaintiff, Plaintiff's counsel has made an oral request for an order indefinitely adjourning this trial, which has already commenced a week ago.
[3] The above request is made on the grounds that the Plaintiff wishes to call two other witnesses. Both are Iranian citizens residing in Iran; namely, the Plaintiff's brother, Hassan Farzam, and his mother, Razia Farzam (the Iranian witnesses). Both are unavailable to testify at this trial since they have not been able to obtain visitor's visas.
[4] I have decided to treat this oral request, which is vehemently opposed by the Defendant, as a formal motion for adjournment, notwithstanding the fact that no notice of motion has been served and filed, as is required under the Rules.
[5] Essentially, Plaintiff's counsel asserts that the testimonies of the Iranian witnesses are necessary and that their absence at the trial is not due to any contrivance on the Plaintiff's part. Counsel submits that the Plaintiff will not receive a fair trial if an adjournment is not granted.
[6] Defendant's counsel retorts that a previous motion for adjournment raising identical grounds has already been dismissed on October 18, 2005, by this Court and that the present motion constitutes an abuse of process in the circumstances.
[7] After reading and reviewing the order dated October 18, 2005, and the motion records of the parties relating to same, it is apparent that the Court accepted the Defendant's arguments to the effect that the Plaintiff has not been diligent in attempting to secure the testimony of the Iranian witnesses and that, in addition, the Plaintiff should have planned for the possibility that visitor visas could be denied.
[8] No appeal has been brought by the Plaintiff against the order issued on October 18, 2005, which dismissed the previous motion for adjournment. No suggestion has been made by the Plaintiff that Lutfy, C.J., improperly exercised his discretion or omitted to take account of relevant facts.
[9] While Lutfy, C.J., did not refer specifically to the fact that the Iranian witnesses had served and filed applications for leave and judicial review of the Visa Officer's decisions, indeed, it was submitted by the Defendant to the Court, at the time the previous motion for adjournment had been made, that the decision to refuse the visitor visas for the Iranian witnesses was made by the Visa Officer in accordance with the requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the IRPA). More particularly, the Defendant submitted that the fact that subpoenas were issued to the Iranian witnesses is not determinative of their eligibility to receive visitor's visas under the IRPA.
[10] While I do not have to decide this matter, given that I am not seized with any leave application with respect to the decisions that were rendered by the Visa Officer, it seems to me, prima facie, that the Plaintiff will incur some difficulty in convincing the Court that leave should be granted.
[11] I also note that on October 26, 2005, this Court dismissed, before the commencement of the evidence in this trial, a motion brought by the Plaintiff for an order of the Court to allow the Plaintiff to introduce the evidence of the Iranian witnesses at the trial through the use of teleconferencing. I note that no appeal has been brought against that latter decision.
[12] That being said, even if I assume, for the purposes of the present motion for adjournment, that the Plaintiff intends to appeal both of the prior orders made by this Court, on October 18 and October 26, 2005, respectively, and that there is a serious issue raised, at this stage, I am far from being convinced that the Plaintiff would suffer irreparable harm if an adjournment is not granted.
[13] If I am to treat the present motion for adjournment as one akin to a motion for a stay of proceedings pending an appeal, evidently the criteria to obtain such a stay of proceedings are not present in this case. I am of the view, given the particular circumstances of this case, that the mere fact that the Plaintiff is obliged to continue participating in a trial already in progress does not constitute an incurable denial of his right to a fair hearing or trial. I refer the parties to the following decisions of this Court: The Government of the Northwest Territoriesv. The Public Service Alliance of Canada(2001), 33 Admin. L. R. (3d) 310, [2001] F.C.J. No. 19 (F.C.A.) (QL); Re: Zundel, 2004 FC 198, [2004] F.C.J. No. 231 (QL); Canada (Director of Investigation and Research) v. D & B Companies of Canada, (1994) 58 C.P.R. (3d) 342, [1994] F.C.J. No. 1504 (F.C.A.) (QL) and Caza v. Télé-Métropole Inc., 2003 FCA 466, [2003] A.C.F. no 1804 (QL).
[14] In conclusion, based on the evidence in the record, and having considered all relevant factors, including the justification of the delay for bringing the present motion, the alleged prejudice to the Plaintiff and the balance of convenience, I am satisfied that the just, most expeditious and least expensive determination of this action on its merits warrants that the present trial continue with the presentation of the Defendant's evidence, as the case may be, since all available witness the Plaintiff wishes to be heard have already testified before this Court.
[15] I shall, therefore, dismiss the present motion.
"Luc Martineau"
Judge
Ottawa, Ontario
November 4, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-626-96
STYLE OF CAUSE: Hussein Farzam v. Her Majesty the Queen in Right of the Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 2, 2005
REASONS FOR ORDER Martineau J.
APPEARANCES:
| Ms. Silvia R. Maciunas
|
|
| Mr. Michael Roach |
SOLICITORS OF RECORD:
| Ms. Silvia R. Maciunas Montreal, Quebec
|
FOR THE PLAINTIFF |
| John H. Sims, Q.C. Deputy Attorney General for Canada |
FOR THE DEFENDANT |