Date: 19991026
Docket: IMM-107-99
Ottawa, Ontario, this 26th day of October, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ZHOUKUN NI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
O R D E R
The notice of motion seeking to strike the notice of application is dismissed without costs.
"J.D. Denis Pelletier"
Judge
Date: 19991026
Docket: IMM-107-99
BETWEEN:
ZHOUKUN NI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PELLETIER J.:
[1] This is one of four motions by the Minister to strike Notices of Applications issued in respect of decisions described in the Notice of Application itself as :
| ...the decision of Paul Whelan, Deputy Program Manager, Canadian Consulate General at Buffalo, to endorse an anonymous surreptitious decision, a person under his supervision rendered on an unknown date to transfer for interview Mr. [...]"s file [...] to the diplomatic mission most distant from his residence in lieu of interviewing him either at the mission of his choice or the one nearest to his residence. Mr. Whelan"s decision which he never deigned to communicate, was rendered on or after [a date]. |
[2] The complaints made about the Notice of Application are numerous:
| 1- The material submitted in support of the Notice of Application does not include the decision being challenged; there is thus no evidence of such a decision having been made. |
| 2- In any event, the decision, such as it is, is not a final decision which is dispositive of the applicant"s rights. |
| 3- The supporting material fails to identify grounds on which relief sought could be granted other than in very general terms. In other words, the general grounds (lack of authority, irrelevant considerations) are not brought to bear on the specific decision being challenged. |
| 4- The material filed in support of the Notice of Application fails to show any reasonable basis for the application. |
[3] In two of the other matters, Xuexu Lin v. M.C.I. IMM-29-99 and Shengfang Lin v. M.C.I. IMM-34-99, the Notices of Application (and the Notice of Motion) are practically identical to the present. In the fourth case, Vladimir Dotsenko v. M.C.I., IMM-30-99, the material is slightly different but the issue raised is the same. These reasons will apply to all four matters and will be placed on each file, together with an order specific to each matter.
[4] These Notices of Application and the affidavits filed in support invite applications to strike by reason of the improbability of their success. There is a good deal of authority in this Court that the Court will not review decisions which are interlocutory or administrative. A decision is reviewable, "only, as held by the earlier jurisprudence, if it is the decision the tribunal has been mandated by Parliament to make, but also if it is a final decision that disposes of a substantive question before the tribunal" Mahabir v. M.C.I., [1992] 1 F.C. 133. There is nothing in the material to suggest that this is such a decision.
[5] However, there is another issue raised by this proceeding, which is the appropriateness of a motion to strike a Notice of Application. The Federal Court of Appeal has ruled that such a procedure is inappropriate for the very sound reason that the energy expended on the motion could more usefully be expended in disposing of the Notice of Application itself.
| The Federal Court of Appeal has clearly established that parties should not commence motions seeking to strike applications for judicial review. Instead, the appropriate course of conduct is to respond to and defend the judicial review application (Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare) (1994), 55 C.P.R. (3d) 302 (Fed. C.A.) and David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) |
| Glaxo Wellcome Inc. and The Wellcome Foundation Limited,applicants, and The Minister of National Health and Welfare and Apotex Inc. [1996] F.C.J. No. 1490 |
[6] There is no reason in the present case to depart from the general rule. While the Notices of Application are unlikely to succeed, the better course would have been to simply argue the merits on the return of the Notice of Application. Given the dismal prospects of these Applications, one would be inclined to allow the Motions and put an end to these proceedings. But the principle established by the Court of Appeal must be taken to apply to hopeless causes since these are the very causes which generate such motions. To allow the motion is to invite further motions.
[7] In the circumstances, the Notice of Motion seeking to strike the Notice of Application is dismissed without costs. While this means that the Notice of Application survives, some reflection upon its ultimate likelihood of success might well be in order.
"J.D. Denis Pelletier"
Judge
Ottawa, Ontario
October 26, 1999