Date: 20041006
Docket: IMM-3775-03
Neutral citation: 2004 FC 1374
BETWEEN:
THAMARAICHELVY LOGESWAREN
RUBIGAH LOGESWAREN
RUBAGANTH LOGESWAREN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
NATURE OF PROCEEDINGS
[1] These are the reasons for the Court's orders of September 14, 2004 in which the Respondent Minister's motion for reconsideration was granted. The reconsideration was based 1) on the Court's misunderstanding of the legal basis for the original motion to vacate the grant of refugee status and 2) on the fact that the interlocutory motion was moot; a final decision having been rendered by the Immigration and Refugee Board (the "Board").
Background
[2] The Minister had commenced proceedings to vacate the grant of refugee status on the grounds of fraud and misrepresentation. The Applicant had filed a motion to dismiss the vacation application on the basis of res judicata - a previous motion to vacate having been dismissed.
[3] The res judicata motion was dismissed by the Board. Leave for judicial review of that interlocutory motion was granted and the judicial review was heard on March 15, 2004.
[4] This Court rendered its decision on June 22, 2004 in which the Court concurred with the Board's conclusion as to the inapplicability of res judicata in these circumstances. However the Court referred the matter back to the Board for a redetermination to be made on the basis of Rule 56 of the IRB Rules.
[5] In rendering its decision, the Court had understood from the submissions made that the Minister was proceeding under Rule 55 of the new Rules and was relying on Rule 57 in respect of the material to be considered by the Board.
[6] Despite Reasons for Order having been given, no order was issued pending receipt of submissions on a certified question.
[7] The Minister brought this motion to reconsider and to re-open since no final order had been rendered.
[8] As has now become evident, prior to the hearing by this Court on March 15, 2004, the Board had held its hearing on the merits of the application to vacate the refugee finding. This event was not brought to the attention of the Court despite the fact that Logeswaren's counsel had direct, personal knowledge that the hearing on the merits of the application to vacate had been held.
[9] On the same day as the judicial review hearing in this Court but after the hearing had concluded, Logeswaren and his counsel received the Board's decision which granted the Minister's motion to vacate. This fact was also not brought to the Court's attention, until the Minister's motion to re-open.
Analysis
[10] The Court proceeded on a misunderstanding of the basis for the Minister"s motion to vacate refugee status. The Minister had authority under section 190 of the previous legislation (the Immigration Act). Leave to proceed with the vacation motion was granted July 5, 2001. Therefore the requirement that the Board reconsider the matter under Rule 56 is irrelevant.
[11] Equally important is the fact that the Board rendered a final decision on which leave for judicial review was granted. Consideration of any issues in respect of the interlocutory order, to the extent that they are not moot, is better left to the hearing of the judicial review of the final order of the Board.
[12] For these reasons, the application for judicial review of the interlocutory decision of the Board will be dismissed without prejudice to either party to raise any matter already considered by this Court in respect of the interlocutory decision.
[13] The Court raised with counsel a serious matter with respect to counsel's conduct and the failure to inform the Court of significant events which directly related to the issues before the Court. The Court was not informed that the Board had conducted a hearing on the merits of the motion to vacate nor was it informed after the hearing but before the Court gave its reasons that the Board had rendered its final decision. Had counsel been prompt in disclosing these events, much time and effort would have been saved and the drain on the resources of the client and the Court would have been avoided.
[14] While the Minister technically had knowledge of these events because an official in Montreal was aware of the hearing and of the decision, counsel for the Minister did not have such personal knowledge. In fact, these matters were brought to the Court's attention by that counsel as soon as she was aware of what had transpired. No criticism can be directed towards her.
[15] On the other hand, counsel for Logeswaren had personal knowledge of these events but chose not to disclose them to the Court. By his own admission, he had a duty to inform the Court if he had known of the Board's final decision at the time of the Court's hearing. He says that he had no such duty as an officer of the Court after the hearing but before a decision is rendered. This is a distinction without a difference. The obligations of counsel are a continuing duty.
[16] Counsel might have found reference to Rule 4 of the Rules of Professional Conduct (Relationship to the Administration of Justice) and in particular Rule 4.01(1), to be useful in considering the duties of counsel.
[17] This Court in Robitaille v. Canada (Attorney General), [2002] FCJ No. 1563, had to deal with an issue of failure to disclose relevant facts. Blais J. in referring to the failure of counsel to disclose said:
It is possible that counsel was unaware that the decision had been rendered four days before, but it was his duty to inform the Court of this as quickly as possible so as to avoid any confusion in the further progress of the case.
[18] The disclosure obligations of counsel as an officer of the Court were addressed (albeit in respect of an ex parte motion) by Power J. of the Ontario Superior Court of Justice in Mueller-Hein Corporation v. Donar Investments Limited, [2003] O.J. No. 2302. His summary of the obligations are particularly apt since he underscores the duty of disclosure as an important part of the integrity of the judicial process.
53. Our adversarial system cannot properly function unless counsel conduct themselves in a professional manner and unless courts are satisfied that, indeed, they are doing so. Lawyers must be able to confidently assume that their colleagues will not act in a fashion designed to improperly take advantage of a situation in order to gain an advantage.
54. Judges must be able to assume that the merits on which they are being asked to adjudicate are, indeed, the relevant merits.
55. If these principles are not adhered to, the whole administration of justice is called into question. There is no room for any attempts by counsel to fashion the facts in such a manner as to misstate or ignore material facts. Similarly, there is no room to be "cute" in the recitation of the facts placed before the court.
56. The most important and primary consideration must be to avoid subjecting the integrity of the judicial process to abuse. The right of a court to impose costs sanctions on a party or counsel is one check, or balance, the court possesses by which it can control its proceedings.
[19] Since counsel for the Minister did not address costs, none will be ordered. However, this might have been an appropriate case in which to award costs against counsel personally on a solicitor and client basis.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3775-03
STYLE OF CAUSE: THAMARAICHELVY LOGESWAREN et al v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 14, 2004
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE PHELAN
DATED: October 6, 2004
APPEARANCES:
Mr. Kumar S. Sriskanda FOR THE APPLICANT
Ms. Karen R. Wilding FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Kumar S. Sriskanda
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenbert
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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