Date: 20030711
Docket: IMM-1571-02
Neutral citation: 2003 FC 867
Ottawa, Ontario, this 11th day of July, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
HSIEN LEE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] By Notice of Motion dated June 30, 2003, Mr. Lee (the "Applicant") seeks reconsideration of the Order issued on June 19, 2003, Hsien Lee v. Canada (Minister of Citizenship and Immigration), 2003 FCT 760. The Applicant submitted his Notice of Motion pursuant to the Federal Court Rules, 1998, SOR/98-106, Rule 397(1)(b) for consideration in writing and without personal appearance. The Applicant and the Respondent filed written submissions.
[2] Rule 397(1)(b) of the Rules provides as follows:
| 397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
...
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
|
|
397.(1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
...
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
|
[3] Rule 397(1)(b) is a technical rule, designed to address situations where a matter that should have been addressed was overlooked or accidentally omitted. In my opinion, that is not the situation here.
[4] The Applicant is now arguing that a point raised in argument during the hearing of his application for judicial review was not addressed in the Reasons for Order filed on June 19, 2003. In Haque v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1141 (T.D.), Justice Pelletier (as he then was) said as follows at paragraph 5 and 6:
...However, I disagree that Rule 397 applies to this situation. My view is that "matter", as used in Rule 397, means an element of the relief sought as opposed to an argument raised before the court. In other words, the Court has failed to deal with some part of the relief sought and an application to reconsider seeks to have the Court address the issue of the relief sought. To permit what are intended to be final orders, from which there is no appeal without the certification of a serious question of general importance, to be opened up because an argument has not been dealt with undermines the finality of the decision. Furthermore, I would not wish to impose on the Court the obligation of dealing with every argument made without regard for its significance or its merit.
In saying this, I am referring to the legal obligation upon a judge preparing reasons. I am not speaking of good practice. Good practice generally includes acknowledging the arguments made by the parties so that they know they have been heard. The wisdom of such a course of action is proved by this application. But there are many reasons why a judge might not deal with all arguments made to the Court. Relevance, significance, lack of merit are among them. Oversight is another. To hold that some of those reasons are sufficient to justify reconsideration while others are not is to invite inquiries into all instances of failure to refer to arguments made. This undermines the finality of decisions made. For that reason, the application for reconsideration is dismissed.
[5] According to Haque, supra, the argument now raised by the Applicant is not a proper basis for invoking the application of Rule 397(1)(b).
[6] The Applicant raises a second issue in his notice of motion for reconsideration of the Order dismissing his application for judicial review. This second issue relates to the comments he made to an agent of the Respondent on March 6, 2002 when he attended an eligibility interview. The Applicant is now trying to cast these comments in a different light.
[7] In my opinion, he is now trying to re-argue an issue that was clearly dealt with in the Reasons for Order filed in this matter. He is improperly using Rule 397 as a disguised method of appeal and the jurisprudence is clear that the reconsideration rule cannot be used in that way: see Kibale v. Canada (Transport Canada) (1989), 103 N.R. 387 (F.C.A.).
[8] The motion is dismissed, no order as to costs.
ORDER
The motion is dismissed, no order as to costs.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1571-02
STYLE OF CAUSE: HSIEN LEE v. MCI
PLACE OF HEARING: TORONTO
MOTION IN WRITING: June 26, 2003
REASONS FOR ORDER AND
ORDER: The Honourable Madam Justice Heneghan
DATED: July 11, 2003
APPEARANCES:
Mr. Hsien Lee FOR APPLICANT
Mr. Greg G. George FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Hsien Lee
5734 Yonge Street
Suite 509
Toronto, Ontario M2M 4E7 APPLICANT
Mr. Greg G. George
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6 RESPONDENT
Email this Content