IMM-61-96
B E T W E E N:
GERLANDO SCIASCIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench, at Toronto, Ontario,
Tuesday, February 25th, 1997 as edited.)
ROTHSTEIN, J.:
The respondent brings an interlocutory motion to strike certain grounds in the applicant's motion for judicial review (leave having been granted). The applicant asks that the respondent's motion be adjourned to the hearing of the judicial review. The respondent objects and wishes the matter dealt with today.
The applicant's position is well taken. Pharmacia Inc. v. Minister of National Health & Welfare (1994), 58 C.P.R. (3d) 207 is authority for the proposition that in judicial review applications parties should proceed to the merits in accordance with the timetable set out in the Rules (or by the Court) and should not bring interlocutory applications to strike (all or part of) a judicial review application. At page 215 Strayer J.A. states:
| Unlike the rules pertaining to actions, the 1600 Rules pertaining to judicial review provide a strict timetable for preparation for hearing and a role for the court in ensuring there is no undue delay. Time limits fixed by the rules can only be extended by a judge, not by consent (Rule 1614(2)). The court can of its own motion dismiss applications due to delay (Rule 1617) and can also take the initiative in correcting originating documents (Rule 1605). This all reinforces the view that the focus in judicial review is on moving the application along to the hearing stag as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case. |
This is not to say that the Court is entirely without jurisdiction to deal, in a summary way, with motions that are so clearly improper as to be bereft of any possibility of success. At page 217 Strayer J.A. states:
| This is not to say that there is no jurisdiction in this court either inherent or through Rule 5, by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success: see, for example, Cynamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 at pp. 120-21, 64 F.T.R. 126, 19 Admin. L.R. (2d) 91 (T.D.). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. |
In this case, the respondent says the applicant is attempting to challenge two decisions in one judicial review application, which is contrary to Rule 1602(4) of the Federal Court Rules. One decision is that of a visa officer (an inadmissibility decision under paragraph 19(1)(c.2) of the Immigration Act.) The other is that of the Minister of Citizenship and Immigration (a danger decision under paragraph 77(3.01)(b) of the Act.) The respondent says the applicant is out of time with respect to the former decision and on the basis of Rule 1602(4) the applicant may only challenge the Minister's danger opinion in this judicial review.
The applicant says he is not seeking an order of the Court under s. 18.1 of the Federal Court Act with respect to the visa officer's decision. Rather he is arguing only that by reason of absence of jurisdiction, the visa officer's decision is a nullity and was therefore improperly considered by the Minister when she made her danger decision under paragraph 77(3.01)(b) of the Immigration Act.
The issue raises a number of questions. If the respondent is correct, the Court must ignore the question of whether a decision underlying the danger decision was made without jurisdiction. If the applicant is correct, an applicant challenging a decision at any stage under the Immigration Act may reach back and challenge that decision on the basis of the inadequacy of some prior decision that was not challenged within the time prescribed by the Federal Court Act or Immigration Act or Rules thereunder, essentially nullifying the applicability of time limits prescribed by those Acts or Rules and the "one decision per judicial review application" requirement of Rule 1602(4) of the Federal Court Rules. Clearly, there is a debatable issue as to the adequacy of the subject allegations in the applicant's judicial review application.
The restrictive standard to invoke the exception to Pharmacia has not been met. The respondent's motion is adjourned to the hearing of the judicial review application. If convenient, the motion may be heard by way of preliminary application at that time.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
February 27, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-61-96
STYLE OF CAUSE: GERLANDO SCIASCIA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: FEBRUARY 25, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: FEBRUARY 27, 1997
APPEARANCES:
Mr. Brian Armstrong, Q.C.
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD:
SMITH LYONS
Barristers & Solicitors
Suite 5800, Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 3Z7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-61-96
Between:
GERLANDO SCIASCIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER