Date: 20050208
Docket: IMM-371-04
Citation: 2005 FC 194
Ottawa, Ontario, February 8, 2005
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
DORIS ANDRADE CALVO, KRYSTEL RAMIREZ ANDRADE,
TRACY RAMIREZ ANDRADE, YIRI RAMIREZ ANDRADE,
WESLY MELISA RAMIREZ ANDRADE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PHELAN J.
[1] The following are the reasons for order and order delivered orally and edited for grammar and syntax.
[2] THE COURT: That is very generous, Ms O'Leary, and I appreciate your concern.
[3] However, this will probably disappoint you, but your kindness is not going to be reciprocated. I have looked at the file and not only have there been efforts on behalf of your client, but there have been extensive efforts by the Court to do this.
[4] If a party makes themselves unavailable to enjoy the benefits of the leave that is granted, there is not much more the Court can do. The Court cannot drag them here kicking and screaming.
[5] If at a later date the Applicants are found and served with a removal order and they wish to challenge what I am going to do today, I wanted to make sure that there was a clear record as to the efforts that have been taken to serve them. Then, if they think there has been an injustice done, they can, of course, take whatever steps they think are appropriate.
[6] I am going to dismiss it, but before I do that, I wanted to read into the record - and that is the reason I have a court reporter here - the efforts that have been made in this regard.
[7] I just want to start with September 9th when a certified copy of the Order of Mr. Justice Pinard granting leave was sent to the Applicants at their address at 7705 Kittridge Drive, Mississauga, Ontario, L4T 3L9.
[8] On September 24, 2004, Hélène Clement of the Ottawa Registry made a memorandum to the Court file advising the following, and I quote from the memorandum:
Since the telephone number of the Applicant that we have on file is not in service and we didn't have a fax number and the letter that was sent P.O.D. transmitting the letter was received without signature for receipt, the letter and the certified copy of the Order was resent to C/O Hugo Ramoro Avendano - RH Avendano Inc., 1203 St. Clair Avenue West, Toronto, Ontario, M6E 1B5. This address was found as per commissioner stamp on affidavit [in the file].
[9] On October 26, 2004, another certified copy of Mr. Justice Pinard's Order was sent by registered mail to the Applicants at the same address as sent on September 9, 2004. That is the one on Kittridge Drive in Mississauga.
[10] At the bottom of the covering letter, the Registrar typed in bold letters, capitalized and underlined, and I quote:
PLEASE CONFIRM WITH THE REGISTRY THAT YOU HAVE RECEIVED THE ORDER BY CALLING AT: 613-995-9177.
[11] Then on November 8, 2004, Hélène Clement made a memorandum to the file to advise that the certified copy of the Order dated September 9, 2004 that was re-sent by registered mail on October 26, 2004 was returned with the notion:
Moved/Unknown/Déménagé/Inconnu.
[12] Then on December 1, 2004, Natashia Bennett-Nelson of the Toronto Registry noted the following in a memorandum to the file:
In an effort to find a current address and/or telephone number for the Applicants, I have checked Canada 411 to no avail and requested that the Department of Justice check their FOSS system for the same. Unfortunately, I have been unable to locate the Applicants at any of the addresses listed on file, nor an address or telephone number be found. I attempted to contact the Applicants' consultant at their last known telephone number. There was no identifying message on the machine, but I still left a message on November 30, 2004 identifying myself and requesting that if anyone there has been in contact with the Applicants, to please give me a call. I have received no call back. The Department of Justice provided me with their last known address and telephone number of: 3477 Clara Drive, Mississauga, Ontario, L4T 2C8, (416) 846-0284.
[13] The memo goes on to say:
I called this telephone number ths morning, December 1, 2004, and was advised that I have a wrong number and that there was no one there who answers to the Applicants' names.
[14] On December 6, 2004, Ms Natashia Bennett-Nelson noted the following in a memorandum to the file:
I spoke with David Vinokur, counsel for the Immigration and Refugee Board and asked him to check the Tribunal's system for the addresses that they have on file with the Applicants. Mr. Vinokur advised me that the current address that the IRB has on file for the Applicants is: 7705 Kittridge Drive, Mississauga, Ontario, L3T 3L9.
[15] I am quoting from a memorandum that I was supplied with. That shows in my view that every possible and reasonable effort has been made not only by the Court, but by the Respondent in co-operation with the Court to serve the Applicants. That has not been successful.
[16] The Applicants have clearly not kept either the Immigration and Refugee Board or anybody else advised or apprised of their address. They have failed to appear today. This application for judicial review is dismissed.
ORDER
THE COURT HEREBY ORDERS THAT the application for judicial review is dismissed.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-371-04
STYLE OF CAUSE: DORIS ANDRADE CALVO, KRYSTEL RAMIREZ ANDRADE, TRACY RAMIREZ ANDRADE, YIRI RAMIREZ ANDRADE, WESLY MELISA RAMIREZ ANDRADE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 7, 2004
REASONS FOR ORDER
AND ORDERBY: Phelan J.
DATED: February 8, 2005
APPEARANCES:
No appearance FOR THE APPLICANTS
Ms. Bridget O'Leary FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
RU Avendano Inc.
Toronto, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT