Date: 20090519
Docket: IMM-3211-08
Citation: 2009 FC 509
Ottawa, Ontario, May 19, 2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
TIMOTHY E. LEAHY, Esq.
and
FOREFRONT MIGRATION LTD.
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant
to Rules 51 and 369 of the Federal Courts Rules (the Rules), the
Applicants appeal Prothonotary Aalto’s February 12, 2009 order, striking their
application for leave and judicial review (the proceeding) without leave to
amend and dismissing their request for the consolidation of this proceeding
with other proceedings in this Court.
[2]
Prothonotary
Aalto based his decision on three grounds. First, he was of the view the
Applicants had no standing to initiate the proceeding as they were not,
pursuant to subsection 18.1(1) of the Federal Courts Act (the Act),
directly affected by the matter in respect of which relief is sought; second,
another proceeding seeking the same relief had been filed in this Court; and
third, this proceeding was frivolous and vexatious and an abuse of process.
The Standard of Review
[3]
The
Federal Court of Appeal in Merck
& Co. v. Apotex Inc.,
2003 FCA 488, building on the Court’s decision in Canada v. Aqua-Gem
Investments Ltd. (C.A.), [1993] 2 F.C.
425, held that on an appeal from a Prothonotary’s decision the reviewing court
should first determine whether the questions raised in the appeal are vital to
the final issue of the case. If so, the reviewing Court must determine the
matter de novo. If the vitality test is not met, then a Prothonotary’s
discretionary order is not to be set aside on appeal unless clearly wrong.
[4]
In
this case, the Prothonotary’s order is vital to the final issue of the case as
the Applicants’ application for leave and judicial review has been struck with
no possibility of amendment.
Facts
[5]
Mr.
Leahy acts in the capacity of General Counsel and Director of the second Applicant,
Forefront Migration
Ltd. (Forefront), specializing in immigration matters.
[6]
On
July 21, 2008, the Applicants, in their own names, pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act (IRPA), sought
leave of the Court to commence an application for judicial review of “the
decision, dated June 16, 2008, Operations Manager Susan Burrows made on
file B0527 22014 (MWA) at the Canadian Consulate General … Hong Kong … barring
the reunification in Canada of a twelve-year old with his father.”
[7]
Yet
this very same decision is the subject matter of a different application for
leave and judicial review in Court file IMM-3214-08 between Tse-King Fu and
Ko-Cheung Fu as Applicants. This application was signed by Ko-Cheung Fu as Applicant
c/o Forefront. That leave application was prepared by Mr. Leahy or Forefront.
It invoked the same grounds as IMM-3211-08, the taking into account of
irrelevant considerations.
[8]
Ko-Cheung
Fu, a permanent resident in Canada, applied with the assistance of Mr. Leahy and Forefront to
the Canadian Consulate General in Hong Kong, for his son’s permanent resident
visa invoking humanitarian and compassionate considerations. This application
was refused by Susan Burrows on June 16, 2008. In that application for
permanent residence, he was represented by Mr. Leahy and Forefront Migration
Ltd.
Analysis and Conclusions
[9]
Subsection
72(1) of the IRPA provides, by filing an application for leave, for
judicial review in this Court from any decision made under IRPA.
[10]
The
Federal Courts Immigration and Refugee Protection Rules speak to
procedural rules dealing with application for leave and the prescribed form.
[11]
If
leave is granted, the matter proceeds on judicial review under the Federal
Courts Act. Section 18.1(1) of that Act provides an application for
judicial review may be made “by anyone
directly affected by the matter in respect of which relief is sought”.
[12]
Section
221.(1) of the Federal Courts Rules says the Court may strike a pleading
that is “scandalous, frivolous or vexatious”. In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.), the Federal
Court of Appeal held the Federal Court had inherent jurisdiction to dismiss an
application for judicial review “that was so clearly improper as to be bereft of any
possibility of success”.
[13]
In
the case at hand, the Court is seized with two leave and judicial review
applications seeking on the basis of the same ground, as the principal remedy,
the quashing of Susan Burrows’ June 16, 2008 decision refusing Mr. Ko-Cheung
Fu’s sponsored application for his son’s permanent residence.
[14]
This
proceeding is in the name of Mr. Leahy and Forefront as Applicants
(IMM-3211-08) and the other (IMM-3214-08) is filed by Mr. Leahy naming as
Applicants the parties directly affected by the decision and by the relief
sought by the father and his son.
[15]
It is plain and
obvious IMM-3211-08 is improperly brought and has no possibility of success.
[16]
Prothonotary Aalto relied
on the jurisprudence, cited by counsel for the Minister, to find the Applicants
in this proceeding, Mr. Leahy and Forefront, had no direct interest and their
application should be struck. He also found the proceeding was vexatious in
that it was the subject of the proceeding commenced in IMM-3214-08. Finally, he
held that this proceeding was vexatious.
[17]
I am familiar with
the jurisprudence cited by counsel for the Minister, in respect of each of the independent
three grounds upon which Prothonotary Aalto relied on to strike the proceeding
was invoked. That jurisprudence amply supports his and my decision.
[18]
Mr. Leahy, in his
submissions to the Court in support of the appeal, did not substantively deal
with this relevant case law. This appeal has no merit and is cluttered with
submissions which miss the mark. A cost award in favour of the Minister is
justified in the circumstances.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES this appeal is dismissed
with costs.
“François Lemieux”
___________________________
Judge
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