Date: 19990510
Docket: T-1681-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SHUI LING JULIE CHAK
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] This proceeding and the proceedings in T-1679-98 and T-1616-98 were brought by way of an appeal under subsection 14(5) of the Citizenship Act. By Rule 300(c) Part 5 of the Rules applies to such appeals. Rule 300(a) refers to applications for judicial review but Rules 300(b) to (d) refer to matters other than judicial review.
[2] The Rules on their face seem devised primarily to provide for the summary disposition of judicial reviews. For the purposes of obtaining a judicial review the applicant will have to show that of which he complains, and will almost invariably have to introduce evidence by way of affidavit.
[3] In the case of matters under Rule 300(c) what is being considered is an appeal from a tribunal decision and the tribunal record will come before the Court and may well contain all the factual evidence on which the applicant seeks to rely. That will not be documented by exhibits filed by the applicant but filed by the tribunal. Therefore, the applicant will not be motivated to file anything under Rule 306. In addition, the French version of Rule 306 indicates that an applicant only has to file affidavit, et cetera, which he intends to use.
[4] All the remaining times prescribed by Rules 307 to 310 are measured from the filing pursuant to Rule 306. If nothing is filed by the applicant under Rule 306, galvanization of the proceeding by the Rule ceases. The sole motivation is the prospect of dismissal at a status review. Lack of galvanization apparently lulled applicant's counsel to sleep. However, reading Rule 309, particularly the French version, it is apparent that the applicant was technically stymied as she could only file a record during the twenty days after completion of cross-examination, or the time limited for doing so, and the time had never commenced to run and never would.
[5] This situation was first drawn to my attention in December 1998 when the matter of MCI v. Lau (F.C.T.D. T-1207-98, December 7, 1998) came before me. In the circumstances there I read into Rule 307 "or the expiration of the time limited for doing so, whichever is earlier". My decision was appealed to Mr. Justice Evans who analyzed the problem fully in reasons filed March 15 of this year to which counsel's attention is drawn.
[6] No doubt, counsel should have sought the directions of the Court and notwithstanding an apparently admitted somnolence in view of what I see as a problem overlooked when the Citizenship appeals were placed in Part 5, I do not intend to penalize the applicant, but to order the matter to continue.
ORDER
Being satisfied that the proceeding should continue it is ordered that it continue as a specially managed proceeding.
It is further ordered that the respondent shall have until June 11, 1999 to file his affidavits and documentary exhibits. The Rules will then apply to limit the remaining steps. Should it be necessary to seek extensions of time before a case management judge is appointed either party may move the Court. Copies of this order are to be placed on files T-1616-98, T-1681-98, and T-1679-98.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
May 10, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1681-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
| SHUI LING JULIE CHAK |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: MONDAY, MAY 10, 1999
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.
Toronto, Ontario
M4P 1L3
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990510
Docket: T-1681-98
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
| SHUI LING JULIE CHAK |
Respondent
REASONS FOR ORDER
| AND ORDER |