Date: 19980423
Docket: IMM-772-98
BETWEEN:
CAROLYN ANGELLA GAYLE-REID
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] The motion before me seeks an order striking the application on the grounds it is immaterial, redundant or otherwise an abuse of the process of the Court. The decision impugned was made on April 26, 1994. An application for leave and for judicial review and seeking an extension of time within which to make it was dismissed on July 9, 1997 because the applicant had not filed a record.
[2] On 23rd February 1998, a new application for leave and for judicial review and extension of time to make it was filed. At that time an emergency motion was filed to stay deportation. The motion to stay was dismissed in the following language.
| The decision that is the subject matter of this application for judicial review having previously been the subject matter of an earlier application on which leave was denied, albeit for failure to file a record and not on substantive grounds, and this application for a stay having been late filed without justification satisfactory to the Court, this application for a stay is dismissed. |
[3] On 9th March 1998 a different judge on consent granted a stay of the deportation order. On the 24th of March the applicant's record in the application for leave was filed. On the 2nd of April the motion before me was filed.
[4] Federal Court Immigration Rules, 1993 provide in Immigration Rule 4(1) that, except to the extent they may be inconsistent with the Act or the Immigration Rules, various parts and divisions of the Federal Court Rules apply to applications and appeals (as defined in the Immigration Rules). Rule 419, which provides for the striking out of a pleading having no hope of success, is not one of the Rules so applied. The reason Federal Court Rule 419 is not specifically made applicable is that matters commenced by an originating notice are intended to be handled in a summary way and would normally be disposed of at the hearing of the originating motion almost as swiftly and at not much greater expense, and if they were dealt with by a motion to strike.
[5] However, the Court has, on a number of occasions, analogized to Rule 419 to find authority to strike when the case is patently hopeless and a great deal of expense and time might be saved by disposing of the matter by applying Rule 419. The time to balance the saving of time and expense in my view is as of the moment before the motion to strike is drafted. Almost invariably when a motion purporting to be under Rule 419 is before the Court, if the chances of success of the review are nil, obviously time would then be saved by disposing of the matter under Rule 419. Because in this case a Judge has stayed the deportation of the applicant, a suggestion of an arguable case might have been seen by her. For that reason and also because at the time the motion was drafted, it was not apparent that any time would be saved by bringing this motion rather than by making the same submission in the respondent's submissions in response to the application for leave. Those submissions would have been submitted as the next step in the originating notice proceedings. I will dismiss this motion to strike and provide that the respondent is to file any desired submissions responding to the applicant's record in the application for leave and judicial review within three weeks.
ORDER
Motion dismissed. The time for filing the respondent's submissions and supporting materials in the leave and judicial review proceedings is extended to the 14th day of May, 1998.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
April 23, 1998
FEDERAL COURT OF CANADA
Date: 19980423
Docket: IMM-772-98
BETWEEN:
CAROLYN ANGELLA GAYLE-REID
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-772-98
STYLE OF CAUSE: CAROLYN ANGELLA GAYLE-REID
-and-
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF
RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: APRIL 23, 1998
SOLICITORS OF RECORD: Mr. Colin L. Campbell
Barrister and Solicitor
401 Bay Street
Suite 2412
Toronto, Ontario
M5H 2Y4
For the Applicant
Mr. George Thomson
Deputy Attorney General
of Canada
For the Respondent