Date: 20040114
Docket: IMM -2866-03
CALGARY, Alberta, Wednesday, the 14th day of January, 2004.
PRESENT: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
MARITES HUGO BERMIDO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Delivered Orally from the Bench and Subsequently Edited and
Written for Precision and Clarification)
[1] The applicant is no stranger to the legal system. She has been twice convicted of criminal offenses and has been subject to a deportation order for some time, which deportation has been stayed twice.
[2] She is thus cognizant of the need for counsel and by her own testimony knew since January 2003 that she would have immigration issues to face.
[3] She was given an extension of time to file and leave to bring this judicial review.
[4] In respect to the deportation hearing in question, she was notified of the hearing in April for a hearing to take place in May and at her request got an extension of more than two months to find counsel.
[5] When the hearing took place in July it was more than six months since the date she knew there would be such a hearing and more than two months since the actual notice. I am not prepared to find that under these circumstances the Board denied her the right to counsel by failing to agree to another adjournment. Her lack of counsel was entirely due to her lack of diligence in seeking same.
[6] Given the facts of this case, her failure to comply with the terms of the stay of the deportation order, her second conviction and the testimony of experts as to her compulsive deceitfulness, the presence of counsel would not have made any difference to the outcome of the case.
[7] Even if there has been a violation of procedural fairness, the Court in a judicial review hearing has the discretion to dismiss a case where satisfied that the breach would not have affected the outcome of the decision under review. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board [1994] 1 S.C.R 202, at page 228; as followed in Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.). I would have no hesitation to exercise that discretion, if required.
[8] Accordingly this application is dismissed. .
ORDER
THIS COURT ORDERS that:
This application is dismissed.
"K. von Finckenstein"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2866-03
STYLE OF CAUSE: Marites Hugo Bermido v. The Minister
of Citizenship and Immigration
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: January 14, 2004
REASONS FOR ORDER AND ORDER : von Finckenstein, J.
DATED: January 14, 2004
APPEARANCES:
Ms. Lori A. O'Reilly FOR APPLICANT
Ms. Carrie Sharpe FOR RESPONDENT
SOLICITORS OF RECORD:
O'Reilly Law Firm
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT