Date : 19981110
Docket : IMM-1649-98
BETWEEN:
SERGEY KUZMICH
Applicant
(Respondent)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Applicant)
REASONS FOR ORDER
[Delivered from the Bench at Ottawa, Ontario
on Tuesday, November 10, 1998]
McGILLIS J.
[1] The Minister of Citizenship and Immigration ("Minister") has brought a motion under Rule 97(d) of the Federal Court Rules, 1998, for an order dismissing the applicant's notice of motion dated October 28, 1998, due to his failure to comply with a notice of direction to attend for cross-examination on his affidavit. In the alternative, the Minister has requested that the applicant's affidavit be struck pursuant to Rule 97(c).
[2] On April 9, 1998, the applicant filed an application for leave and for judicial review of a decision of an immigration officer refusing his application for landing as a member of the Deferred Removal Order Class, on the basis that he was criminally inadmissible in Canada. The applicant was subject to a deportation order which was to be executed on May 21, 1998.
[3] On May 21, 1998, Cullen J. dismissed the applicant's application to stay the execution of the deportation order, and also refused to grant him an extension of time to perfect his application for leave and for judicial review. On that same day, the applicant fled Canada in order to avoid his deportation, and entered the United States of America illegally.
[4] On July 29, 1998, Gibson J. dismissed the application for leave and for judicial review due to the applicant's failure to perfect his application.
[5] On October 8, 1998, the applicant entered Canada somehow, and attended at his lawyer's office to sign an affidavit in support of a notice of motion seeking an order, among other things, for reconsideration of the Order of Gibson J., and for an extension of time to perfect his application for leave and for judicial review.
[6] On October 11, 1998, the applicant, his fiancée and two others left Ottawa with the intention of entering the United States by crossing the border at the Ivy Lea bridge near Gananoque, Ontario. At the border, one of the individuals lied to the United States Customs officer by stating that they were all Canadian citizens. The applicant produced false identification and misrepresented to the United States Customs officer that he was a Canadian citizen. The Customs officer discovered that the applicant's fiancée and the two other individuals were not Canadian citizens, but rather were landed immigrants in Canada. He detained all of them for questioning, but the applicant escaped from the Customs office. He went to Montreal for a few days and made other arrangements to leave Canada and to enter the United States illegally. On or about October 20, 1998, the applicant telephoned his fiancée and stated that he was in New York.
[7] On October 28, 1998, counsel for the applicant filed with the Court the notice of motion for reconsideration, and the supporting affidavit of the applicant sworn on October 8, 1998.
[8] On October 30, 1998, counsel for the Minister served on the applicant's counsel a direction to attend, requiring the applicant to attend on November 3, 1998, for cross-examination on his affidavit.
[9] By letter dated October 30, 1998, counsel for the applicant wrote to counsel for the Minister, and stated, in part, as follows:
| On October 8, 1998, Mr. Kuzmich appeared at my office to sign his Affidavit. Sometime thereafter, I understand that he left for the United States, and was in fact stopped by United States Immigration at the border and was returned to Canada. While he was at the Immigration Canada offices, he escaped and subsequently succeeded in getting back to the United States. |
[10] Counsel for the Minister responded by letter on the same day, indicating, among other things, that he would "...travel to the location of any official examiner in the United States for the purpose of conducting the examination."
[11] On November 2, 1998, the applicant's counsel advised counsel for the Minister that the applicant was prepared to attend at the Canadian Consulate in New York for cross-examination on his affidavit, on the following terms:
| Mr. Kuzmich is prepared to attend at the Canadian Consulate at New York for cross-examination on his Affidavit by you or your representative at the Canadian Consulate offices. This is on your undertaking, and that of the Consulate, that his presence in New York will not be disclosed to anybody, particularly to the American authorities. "American authorities", in this letter, means any officials or agent of the United States government, the Government of the State of New York, the City of New York or any of its boroughs. |
[12] In his written and oral submissions, counsel for the Minister argued that the applicant's motion and affidavit should be struck, on the basis that he has refused reasonable requests to be cross-examined on his affidavit. I agree with that submission. In my opinion, the applicant's requirement that the Minister and the Consulate undertake not to disclose the applicant's illegal presence in the United States is patently unreasonable and manifestly inappropriate. Indeed, the applicant's purported imposition of a "condition" requiring the Government of Canada to assist in concealing his illegal presence in the United States is outrageous, particularly given that he fled Canada in order to avoid his lawful deportation from this country, following a hearing in this Court on that very issue. In my opinion, his purported imposition of a "condition" requiring the Minister and the Consulate to undertake not to disclose his presence in the United States constitutes a refusal to attend for cross-examination on his affidavit. As a result, I have determined, in the exercise of my discretion, that the applicant's affidavit dated October 8, 1998 should be struck under Rule 97(c). Given all of the circumstances, I have also determined, in the exercise of my discretion, that the applicant's notice of motion dated October 28, 1998 should be dismissed under Rule 97(d).
[13] The motion is granted. The applicant's affidavit dated October 8, 1998 is struck, and his notice of motion dated October 28, 1998 is dismissed.
[14] Counsel for the Minister requested that the Court impose costs on a solicitor and client basis, given the reprehensible conduct of the applicant. I agree that the conduct of the applicant has been outrageous and scandalous. In the circumstances, I have determined that it would be appropriate to award solicitor and client costs. [See Young v. Young, [1993] 4 S.C.R. 3 at 134.] The costs of the motion are awarded to the respondent on a solicitor and client basis in the amount of $2,000.00, payable by the applicant forthwith in any event.
| D. McGillis |
| Judge |
OTTAWA
November 10, 1998