Date: 20100930
Docket: T-1772-09
Citation: 2010
FC 977
St. John’s, Newfoundland and Labrador, September
30, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
KARMJIT
MASIH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Minister of Citizenship and Immigration (the “Minister”) appeals from the Order
of Prothonotary Milczynski dated August 24, 2010. In that Order the
Prothonotary dismissed the Minister’s motion that this application for judicial
review filed by Mrs. Karmjit Masih (the “Applicant”) be dismissed. The Minister
argued that since this application for judicial review relates to a matter
falling within the scope of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA” or “the Act”), the Applicant must file an application
for leave and for judicial review. She has not done so.
[2]
The
following facts are taken from the Motion Record that was filed by the Minister
on September 2, 2010 and the Applicant’s Reply, filed on September 3, 2010, to
that Motion Record. The Motion Record that was filed by the Minister includes
two affidavits of Helen Medeiros, a legal assistant to Counsel for the
Minister.
[3]
On October
27, 2009, the Applicant filed the Notice of Application that began proceeding
T-1772-09. In that Notice of Application the Applicant said that she was asking
the Court to “issue orders to process the long outstanding Application for
Permanent Residence since April 2007”. She said that she submitted an
application for permanent residence in April 2007 and the application remains
outstanding with no decision having been made. She said that she has waited
“long enough i.e. Two [sic] and a half years.”
[4]
By letter
dated November 2, 2009, lawyers for the Minister wrote to the Applicant. The
letter said the following:
I am writing to advise that the Applicant
has brought an application for judicial review under s. 300 of the Federal
Courts Act. The Respondent wishes to advise the Court that as the Applicant
is applying for mandamus regarding an undecided H&C application, the proper
procedure is to file an application for leave and for judicial review under s.
72(1) of the Immigration and Refugee Protection Act (“IRPA”).
Accordingly, I am seeking the Court’s
direction in regards to this matter.
Please contact me if you have any
questions in this regard, or if I can be of further assistance.
[5]
The
Prothonotary issued a Direction on November 17, 2009 directing the Minister to
proceed by way of Notice of Motion with respect to the letter dated November 2,
2009.
[6]
It appears
that nothing further was done about the matter and on May 26, 2010, a Notice of
Status Review was issued under the provisions of the Federal Courts Rules,
SOR/98-106 (the “Rules”).
[7]
Both the
Minister and the Applicant filed submissions in response to the Notice of
Status Review. The Applicant’s submissions were filed on May 31, 2010. The
Applicant said that the Minister was “in default” of the Court’s direction of
November 17, 2009. The Applicant asked that her application not be dismissed
“because of default on part of Respondents.”
[8]
The status
review on this file was conducted on June 29, 2010 by Prothonotary Milczynski
and by Order issued on the same day, Prothonotary Milczynski said the
following:
The Court issued directions on November
17, 2009, that whatever relief to be sought by the Respondent regarding the
application should be sought by the Respondent by way of motion.
The Respondent has not brought a motion,
and the Applicant has not taken any steps to further the application. The
Respondent repeats in its submissions on this status review the substance of
its objection to the application and states that it was under no obligation to
bring a motion. The Respondent states that the onus was on the Applicant to
proceed with her application, and that it ought now be dismissed for delay. It
appears, however, from the Applicant’s submissions on this status review that
she does not understand the requirements under the Rules, and how she is to
proceed. The Applicant is under the impression that the Respondent is in
default of its obligation to have brought a motion and asks that the Court
issue the order of mandamus.
I am not satisfied in these circumstances
that justice would be done or be seen to be done for the application to be
dismissed summarily on this status review for delay.
[9]
The
Prothonotary went on to issue this Order:
a.
This
application shall continue as a specially managed proceeding as is referred to
the office of the Chief Justice for designation of a Case Management Judge.
b.
The
Respondent may, within thirty days of the date of this Order, serve and file a
motion in respect of this application, including a motion record containing an
affidavit – failing which the parties shall, within twenty days of the date for
the Respondent to have filed its motion having expired, submit a joint proposal
for a timetable to govern the remaining steps in this proceeding. In the event
the parties cannot agree to a timetable, each shall submit an independent
proposal for a timetable within the twenty days provided herein.
[10]
By Order
dated July 9, 2010 the Chief Justice of this Court assigned Prothonotary
Milczynski as the Case Management Judge for this file.
[11]
On July
28, 2010, lawyers for the Minister filed a Notice of Motion, requesting an
Order dismissing this proceeding on the basis that the application had taken
“an incorrect way of proceeding for the relief sought by the Applicant”. In
other words, the Minister objected to the way the Applicant brought this
proceeding in the Court.
[12]
The
Applicant did not file any arguments in reply to the Minister’s motion. By
Order dated August 24, 2010, Prothonotary Milczynski dismissed the Minister’s
motion. In part, she said the following:
Accordingly, I am not satisfied that the
Applicant has followed an incorrect procedure as asserted by the Respondent.
Other than the bare assertion in its written representations, the Respondent
has not provided any assistance to the Court to make the finding that the
application is improper and issue an order dismissing it. If the within
application is not completely proper, than certainly not so improper so as to
be bereft of any chance of success.
Accordingly, the motion will be
dismissed, with the additional comment that the order issued or status review
on June 29, 2010 required the parties to submit a joint proposal for a schedule
to govern the remaining steps in this proceeding, pending the filing and
outcome of this motion. The parties shall file their proposed timetable(s) as
indicated below.
[13]
The
Prothonotary made the following Order:
a.
The motion
be and is hereby dismissed.
b.
The
parties shall, within twenty (20) days of the date of this Order submit a joint
or independent proposals for a timetable to govern the remaining steps in this
proceeding, including the service and filing of affidavits, the completion of
cross-examinations and the service and filing of the requisition for hearing.
[14]
On
September 2, 2010 the Minister filed an appeal from this Order of Prothonotary
Milczynski. The motion was set down for hearing on September 13, 2010.
[15]
On
September 13, 2010, the lawyer for the Minister and the Applicant appeared
before the Court. The Applicant was accompanied by her son. The lawyer for the
Minister presented argument as to why the Order of the Prothonotary is wrong
and should be reversed. The Applicant’s son was permitted to speak on behalf of
his mother with permission from the Court. In the interests of making sure that
the Applicant understood the nature of the hearing and understood the case law
that was presented by the lawyer for the Minister, and to allow the Applicant
to return to the Court with a Punjabi interpreter at her expense, the hearing
of the appeal was set over until Tuesday, September 21.
[16]
On
September 21, the hearing of the appeal was resumed. The Applicant was
accompanied on this day with her son and with a Punjabi interpreter, Mr. Ashok
Kumar. The interpreter was duly sworn to translate all submissions to the
Applicant.
[17]
The lawyer
for the Minister presented the arguments as to why the Applicant’s application
for a “writ of mandamus” is based upon a wrong manner of proceeding and should
be dismissed.
[18]
The
Applicant was also given the opportunity to speak and the Applicant’s son was
given the opportunity to address the Court on behalf of his mother.
[19]
Neither
the Applicant nor her son said anything about the legal decisions that were
provided by the lawyer for the Minister. Copies of those decisions were given
to Mrs. Masih and submitted to the Court on the first day of this hearing, that
is September 13, 2010, that is the decisions in Wong v. Canada (Minister of Citizenship and
Immigration),
[2007] F.C.J. No. 1309, a decision of Prothonotary Lafrenière and the decision
of Mr. Justice Gibson in Wong v. Canada (Citizenship and Immigration) (2007),
64 Imm. L.R. (3d) 153.
[20]
These two
decisions deal with the same situation that is before the Court right now.
[21]
The
situation before the Court now is whether the Applicant, Mrs. Masih, can bring
an application for judicial review and an order of mandamus in relation
to her application for permanent residence in Canada, without seeking leave.
[22]
The first
matter that must be addressed is the standard of review. In Merck & Co.
v. Apotex Inc., [2004] 2 F.C.R. 459 (F.C.A.) the Federal Court of Appeal
set out the test, as follows:
Discretionary orders of prothonotaries ought not be
disturbed on appeal to a judge unless:
a) the questions raised in the motion are vital to the final
issue of the case, or
b) the orders are clearly wrong, in the sense that the
exercise of discretion by the prothonotary was based upon a wrong principle or
upon a misapprehension of the facts.
[23]
The Order
of the Prothonotary here is reviewable on the de novo standard because
it deals with a motion that has the effect of a final determination of this
proceeding that is striking out the underlying application for mandamus.
That means that this Court will consider the Minister’s motion to strike as if
this were the first hearing of that motion.
[24]
The
Minister’s argument is simple. He says that Mrs. Masih should have brought her
application for mandamus by way of an application for leave, pursuant to
the Act. He refers to and relies on subsection 72(1) of the Act which provides
as follows:
|
72.
(1) Judicial review by the Federal Court with respect to any matter — a
decision, determination or order made, a measure taken or a question raised —
under this Act is commenced by making an application for leave to the Court.
|
72.
(1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
|
[25]
There is no doubt
that Mrs. Masih’s application for permanent residence in Canada is a “matter” that falls within the scope of the Act.
Likewise, there can be no doubt that an effort by Mrs. Masih to engage the
judicial process to encourage the Minister to make a decision, with respect to
her application for permanent residence, is also a “matter” that falls within
the scope of subsection 72(1). In these circumstances, it follows that the
correct procedure for Mrs. Masih to follow is to file an application for leave
and judicial review with this Court.
[26]
Mrs. Masih has not
done so. She has filed an application for judicial review only under the
general provision of the Federal Courts Act, R.S.C. 1985, c. F-7. The terms of
the IRPA require her to follow the specific procedures that are set out
in that Act, not the general provisions of the Federal Courts Act.
[27]
In this motion to
strike the application for mandamus that Mrs. Masih filed on October 27,
2009, the Minister is not asking the Court to strike out the application for
permanent residence. This appeal by the Minister, likewise, is not an effort to
strike out the application for permanent residence. The Minister is objecting
to the process followed by Mrs. Masih, to date.
[28]
In my opinion, the
Prothonotary erred in refusing to strike this application for judicial review.
The application for mandamus is procedurally defective and cannot
proceed.
[29]
Mrs. Masih is at
liberty to bring an application for leave and judicial review, in accordance
with the procedure set out in subsection 72(1) of the Act. Of course, her
application for permanent residence remains in place and is not affected by
this Order.
[30]
The
Minister has not sought costs and no costs will be awarded.
ORDER
THIS COURT ORDERS that the appeal from the Order of
Prothonotary Milczynski dated August 24, 2010 is set aside and the motion of
the Minister to strike the underlying application for judicial review is
allowed and the underlying application for judicial review is struck out,
without leave to amend, no order as to costs.
“E.
Heneghan”
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