Gill v. Canada (Minister of Citizenship and Immigration), 2002 FCT 52

Date: 20020117

Neutral citation: 2002 FCT 52

                                                                                                                             Docket: IMM-1873-01

BETWEEN:

                                                              SINGH SIKANDER GILL

                                                                                                                                                    Applicant

                                                                              and

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                                                                                             Docket: IMM-1874-01

BETWEEN:

                                                          HARBHAJAN RANDHAWA

                                                                                                                                                    Applicant

                                                                              and

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                                                                                             Docket: IMM-1876-01

BETWEEN:

                                                                 JASVINDER KAUR

                                                                                                                                                    Applicant

                                                                              and

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                                                                                             Docket: IMM-1877-01

BETWEEN:

                                                          SOHAN SINGH MACHHAL

                                                                                                                                                    Applicant

                                                                              and

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

NADON J.

[1]                 These matters are applications for leave and for judicial review of decisions rendered by the Refugee Division of the immigration and Refugee Board (the "Board"). The Board, by its decisions, concluded that the applicants were not refugees^[1] principally on the grounds that the applicants were not credible.

[2]                 By notices of motion dated June 11, 2001, the respondent sought orders dismissing the applicants' applications for leave and for judicial review because the applications had been "... prepared by a representative who could not act before this Court, pursuant to section 11 of the Federal Court Act and Rule 119 of the Federal Court Rules, 1998".

[3]                 Specifically, the respondent argued that the applicants' proceedings, and in particular the memoranda, had been prepared by a person, Maria Esposito, who was not a member of the Bar and hence, that this person could not "legally" prepare the memoranda nor the applications for judicial review.

[4]                 In support of her arguments that the applications for leave and for judicial review should be dismissed, the respondent relied on Denault J.'s decision in Salinas in Canada (Minister of Citizenship and Immigration), (2000) F.C.J. 1004, docket IMM-1303-00, wherein the learned judge concluded that the proper remedy was dismissal when proceedings had been filed by individuals who did not have the right to act before the courts. At paragraphs 6 and 7 of his Reasons, Denault J. stated:

[6]           But, harsh as the sanction is - the dismissal of the application for leave - I am nevertheless of the opinion that the appeal should be allowed and the applications for leave dismissed.

[7]           It is the Court's role and duty to guarantee compliance with the Act and the rules, and to ensure that those who appear before it or draft proceedings for the purpose of asserting rights are officers of the Court (sections 11(1) and (3) of the Act and rule 119). In my view, the prothonotary's discretion in the case at bar reflected and overly restrictive assessment of the respondent's evidence. The facts put in evidence in each of the respondent's motions constituted much more than signs, and ought to have pointed inexorably to the conclusion that in each case the application for leave and for judicial review by the applicants had been prepared and drafted by an agent who could not act as a representative in this Court. It is true that an applicant may, under Rule 119, act in person, but if he decides to be represented the rule is clear and he must be represented by a solicitor. I acknowledge, incidentally, that it is not the respondent's role to ensure compliance with the Bar Act; that is the job of the professional organization which represents advocates. But I do think it falls within his duty as an officer of the Court to draw the Court's attention to such a flagrant breach of its rules.

[5]                 I heard the respondent's motions on September 27, 2001, and, at the end of the hearing, dismissed the motions. I was not prepared to dismiss the leave applications simply because Ms. Esposito was not a member of the Bar.

[6]                 However, as Mr. Latulippe, counsel for the respondent, had taken the position, both orally and in writing, that the memoranda prepared by Ms. Esposito was, for all intents and purposes, worthless^[2], I advised him that I would take a close look at the memoranda so as to decide whether, in the circumstances, it was necessary for the respondent to file a responding record.

[7]                 I have now taken a close look at the memoranda filed by the applicants in these matters and can only conclude that these applications cannot possibly succeed on the merits. As a result, leave shall be denied.

[8]                 The memoranda filed do not really address the basis upon which the Board concluded, in all four matters, that the applicants were not credible and that, as a result, their claims to refugee status would be denied. The submissions made in the memoranda are of a general nature and they do not address the specific findings made by the Board. I attach to my Reasons, as an example, a copy of the memorandum filed in IMM-1873-01.

[9]                 It is obvious that these submissions are insufficient to convince a judge of this Court that the applications for judicial review should be allowed. In other words, it is my view that the dismissal of the applications is a foregone conclusion.

[10]            For these reasons, orders will be issued, dismissing the leave applications in the four files.

                                                                                               Marc Nadon

                                                                                                       JUDGE

O T T A W A, Ontario

January 17, 2002