Date: 20000329
Docket: T-1498-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KANDASAMY RAVICHANDRAN
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This motion is made by the Minister of Citizenship and Immigration for an order abridging the time for serving and filing this motion and for an order extending the time for serving the Requisition for Hearing in this matter, to five days following the order of this Court.
[2] The motion is made pursuant to Rules 3, 8 and 362 of the Federal Court Rules, 1998.
[3] The Minister was required to file and serve a requisition for a hearing pursuant to Rule 314(1) within 10 days after service of the Respondent"s Record. The last day for filing the requisition was December 9, 1999.
[4] The Minister purported to serve the Requisition on counsel for the Respondent (RAVICHANDRAN) on December 10, 1999 at 17:06.
[5] The Minister has not filed the requisition with the court as no order has been obtained to extend the time for serving the requisition.
[6] In the first week of January 2000, the solicitor for the Respondent checked with the Court to determine if a date had been set for the hearing of the application and learned that the requisition for a hearing had not been filed. He then called the solicitor for the Minister to advise him of the situation.
[7] Due to an oversight the Minister"s solicitor did not bring a motion to extend the time for filing the requisition.
[8] On March 10, 2000 the Respondent"s solicitor contacted the Minister"s solicitor to determine if he intended to proceed and was informed that the Minister did intend to proceed and that since it was the eve of March break the Minister"s solicitor stated that if he didn"t get the motion for extension filed on or before the day he left for holidays he would do so shortly after his return on March 20, 2000.
[9] The respondent made an application dated March 20, 2000 for an order dismissing the Judicial Review application pursuant to Rule 167 of the Federal Court Rules, 1998.
[10] The parties agreed that the Minister"s application to extend the time for serving the Requisition for a hearing date would be heard prior to the s. 167 motion.
[11]
Issues
| 1) should an order issue abridging the time for serving and filing this motion? |
| 2) should an order issue extending the time for serving the Requisition for Hearing in this matter to a date 5 days following the order of the Court? |
Law
[12] Rules 3 and 8(1) and (2) of the Federal Court Rules, 1998 state:
| 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
|
3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
|
| 8. (1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
|
8. (1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.
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| (2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.
|
(2) La requête visant la prorogation d'un délai peut être présentée avant ou après l'expiration du délai.
|
Rule 314 of the Federal Court Rules, 1998 reads:
314. (1) An applicant shall, within 10 days after service of the respondent's record or the expiration of the time for doing so, whichever is earlier, serve and file a requisition, in Form 314, requesting that a date be set for the hearing of the application.
314. (1) Dans les 10 jours après avoir reçu signification du dossier du défendeur ou dans les10 jours suivant l'expiration du délai de signification de ce dossier, selon celui de ces délais qui est antérieur à l'autre, le demandeur signifie et dépose une demande d'audience, établie selon la formule 314, afin qu'une date soit fixée pour l'audition de la demande.
2) A requisition referred to in subsection (1) shall
(a) include a statement that the requirements of subsection 309(1) have been satisfied and that any notice required under section 57 of the Act has been given;
(b) set out the place at which the hearing should be held;
(c) set out the maximum number of hours or days required for the hearing;
(d) list any dates within the following 90 days on which the parties are not available for a hearing;
(e) set out the name, address, telephone number and fax number of the solicitor for every party to the application or, where a party is not represented by a solicitor, the person's name, address, telephone number and any fax number; and
(f) indicate whether the hearing will be in English or French, or partly in English and partly in French.
(2) La demande d'audience contient les éléments suivants :
a) une déclaration portant que les exigences du paragraphe 309(1) ont été remplies et que tout avis exigé par l'article 57 de la Loi a été donné;
b) l'endroit proposé pour l'audition de la demande;
c) le nombre maximal d'heures ou de jours prévus pour l'audition;
d) les dates où les parties ne sont pas disponibles pour l'audition au cours des 90 jours qui suivent;
e) les nom, adresse et numéros de téléphone et de télécopieur de l'avocat de chaque partie à la demande, ou ceux de la partie dans le cas où elle n'est pas représentée par un avocat;
f) la langue dans laquelle l'audition se déroulera, c'est-à-dire en français ou en anglais, ou en partie en français et en partie en anglais.
Analysis and Decision
[13] The Minister had requested that the motion be heard on short notice and has cited Rule 362(2) as a basis for the request. It appeared at the hearing that the Respondent consented to the motion being heard on short notice but if there was any doubt about this consent I would allow the motion to be heard on short notice.
[14] In this case, the Minister did prepare and serve a Requisition for Hearing on the Respondent but was beyond the time for serving it on the Respondent and filing it with the Court. Thus, the necessity for a motion to extend the time for filing and serving the Notice.
[15] I have reviewed the filed material and I am satisfied that the Minister has raised a triable issue in his application for judicial review, i.e., does the respondent meet the residency requirements of 5(1)(c) of the Citizenship Act. As well, I am satisfied that the Minister had at all times an intention to continue with its application for judicial review. Counsel for the respondent indicated that as late as mid-March the Minister"s solicitor indicated that he was still proceeding with the judicial review.
[16] I am also satisfied with the Minister"s counsel"s explanation for the delay. He quite candidly told the Court he had neglected to file the application for an extension of time. This should not happen but in the circumstances of this case where the requisition was prepared and served on the respondent"s solicitor, I will accept the explanation of the solicitor for the Minister.
[17] There should not be any prejudice to the respondent as the hearing of the judicial review can still be heard albeit it a little later in time. I believe that in order to ensure justice is done between the parties, the issue as to whether the respondent met the residency requirement should be determined by the Court.
[18] I am fortified in my conclusion by the existence of s. 380(1)(b) of the Federal Court Rules, 1998 state that where 180 days have elapsed since the issuance of the notice of application and no requisition for a hearing date has been filed, the court is to fix a date for a status review.
[19] I am not ruling that an extension of time to file a requisition will always be granted due to the presence of Rule 380(1)(b). Whether or not the extension of time will be granted will depend on the circumstances of each case.
ORDER
[20] I would therefore grant the applicant 3 days from the date of this order in which to file its requisition for a hearing and I would also, if it is necessary, extend the time for serving the requisition on the respondent.
[21] The respondent shall be awarded his costs on a solicitor and client basis and if the companion 167 motion does not proceed further the respondent is also awarded his solicitor and client costs on that motion. Counsel indicated to me that my decision would indirectly dispose of the companion 167 motion accordingly I have not rendered a decision in that motion. However, if counsel require that I rule on that motion the Registry may be contacted and if I do give a decision in that motion I will deal with the issue of costs for that motion in that decision.
[22] I have awarded costs on a solicitor and client basis due to the fact that these motions should not have been necessary in the normal course of events.
"John A. O"Keefe"
J.F.C.C.
Halifax, Nova Scotia
March 29, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, MARCH 27, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
DATED: WEDNESDAY, MARCH 29, 2000
APPEARANCES: Mr. David Tyndale
For the Applicant
Mr. D. Russ Makepeace
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
| Deputy Attorney General of Canada |
Makepeace Romoff
Barristers & Solicitors
33 Prince Arthur Avenue, Suite 300
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000329
Docket: T-1498-99
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
Respondent
REASONS FOR ORDER
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