Date: 20110126
Docket: IMM-5052-10
Citation: 2011
FC 92
Ottawa, Ontario,
January 26, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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JOSHUA ADAM KEY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
Applicant, Joshua Adam Key, has filed a Notice of Motion (the “Notice”) under
Rule 397(1) of the Federal Courts Rules, SOR/98-106, on December 6,
2010, seeking the reconsideration of my Order dated November 26, 2010 (the
“Order”), dismissing leave on his Application for Leave and for Judicial Review
(the “Application”), as well as seeking an order granting leave for review of
the decision of the Refugee Board (the “Board”) dated August 13, 2010, wherein
the Board held that the Applicant would be afforded adequate state protection
in the United States.
[2]
The
Application was disposed of without personal appearance pursuant to subsection
72(2)(d) of the Immigration and Refugee Protection Act, SC 2001, c 27.
As is the usual practice of this Court, the Order determining the Application
was issued without reasons. As provided for by section 72(2)(e) of the Act, no
appeal lies from a judgement on an application for leave for judicial review.
[3]
The
Applicant is represented and has submitted a motion pursuant to Federal
Courts Rules 369 and 397 for reconsideration, in writing and without
personal appearance. The Applicant and Respondent have both filed written
submissions.
[4]
Rule 397
of the Federal Court Rules, provides as follows :
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397(1) Within 10 days after the making of an order, or
within such other time as the Court may allow, a party may serve and file a
notice of motion to request that the Court, as constituted at the time the
order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons
given for it; or
(b) a matter that should have been dealt with has
been overlooked or accidentally omitted.
Mistakes
(2) Clerical mistakes, errors or omissions in an order may at
any time be corrected by the Court.
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397.(1) Dans les 10 jours après qu’une ordonnance a été rendue ou
dans tout autre délai accordé par la Cour, une partie peut signifier et
déposer un avis de requête demandant à la Cour qui a rendu l’ordonnance,
telle qu’elle était constituée à ce moment, d’en examiner de nouveau les
termes, mais seulement pour l’une ou l’autre des raisons suivantes :
a) l’ordonnance ne concorde pas avec les
motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a
été oubliée ou omise involontairement.
Erreurs
(2) Les fautes de transcription, les erreurs et les omissions
contenues dans les ordonnances peuvent être corrigées à tout moment par la
Cour.
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This Rule allows a party to request that the Court, as
constituted at the time the Order was made, reconsider its terms on the ground
that: a) the Order does not accord with any reasons given for it; or b) a
matter that should have been dealt with has been overlooked or accidentally
omitted.
[5]
In this
proceeding, as is the usual practice of this Court, the Order dismissing the
Application was issued without reasons; therefore, Rule 397(1)(a) cannot apply.
[6]
The issue
for my consideration then becomes whether I should reconsider the terms of my
Order because a matter that should have been dealt with has been overlooked or
accidentally omitted.
[7]
In support
of this motion the Applicant has filed written representations, including four
(4) affidavits: one (1) from Brigit J. Wilson, a practising US attorney
specializing in US military law; one (1) from Professor Sean Rehaag, professor
at the Osgoode Hall Law School; one (1) from an adjunct Professor at the same
law school, Geraldine Sadoway, and a sworn declaration by Donald Rehkopf Jr.,
practising US attorney in military law.
[8]
The Respondent
has objected to the production of the affidavits of Professors Sadoway and
Rehaag on the basis that they contain argument and therefore should be struck.
The Respondent has also objected to the production of the sworn declaration of
Donald G. Rehkopf Jr., as well as the affidavit of Brigit J. Wilson, both of
which were sworn after leave was dismissed, on the basis that they contain new
evidence, none of which was before the Refugee Division, and are therefore
inadmissible.
[9]
In
response, the Applicant submits that the affidavits of Professors Sadoway and
Rehaag are admissible on the basis of Rule 81(1).
[10]
This Court
rejects the objection filed by the Respondent with respect to the affidavits of
Professors Sadoway and Rehaag on the basis that they should be allowed in
support of a motion.
[11]
With
respect to the objection filed against the production of the affidavit of
Brigit J. Wilson and the sworn declaration of Donald Rehkopf Jr., the Applicant
has responded that both documents are admissible on the basis that they do not
constitute the introduction of new evidence, but rather are filed in support of
his motion, to establish that a matter that should have been dealt with must
have been overlooked.
[12]
The
essence of Rule 397 is technical; it is to permit the Court to correct an
oversight on its own part, not that of a party (see Boateng v Canada (Minister of Employment
and Immigration) (1990), 11 Imm LR (2nd) 9 (FCA); at the time
Rule 337(5)(b)).
[13]
In the
case of Samaroo v Canada (Minister of Citizenship and
Immigration), 2007 FC 431, para 3, Justice Barnes, in discussing the
limited scope of an application under Rule 397(1), states:
“What is required for such relief is
evidence that the Court overlooked a matter or accidentally omitted something
material from the decision. The Rule does not provide a basis for the Court to
reconsider its decision on the merits or to provide an opportunity for an
applicant to correct deficiencies in the evidence tendered in the earlier
proceeding.”
I fully agree with this
description of the purpose of Rule 397(1).
[14]
In this
case the Applicant, through the sworn declarations of Donald Rehkopf Jr. and
Brigit J. Wilson, is trying to establish that I must have overlooked some
significant matter since I have not accepted the leave for judicial review.
However, as then-Assistant Chief Justice Lutfy stated regarding similar
circumstances in Dan v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 638, at para 17: “in the absence of any reasons
accompanying the order dismissing the application for leave, it is difficult to
understand how the applicant could establish that the decision in Baker,
made public some six months previously, was not considered”. In this case, the
Applicant is attempting to establish that I did not consider the evidence
referred to in these affidavits, but in the absence of reasons, there is no
solid basis for the Applicant’s belief.
[15]
The
affidavits discuss the state of American military law, and therefore do not
appear to be introducing evidence which has arisen since my decision was made.
The case law establishes that the rule on reconsideration applies only to an
oversight of the Court, and not one of the parties’, so I cannot accept any
evidence that the Applicant failed to place before the Board. Therefore, the
Applicant can only re-state his previous arguments in an attempt to show that I
overlooked a relevant matter in arriving at my decision to refuse leave.
[16]
It should
be noted that even in cases where reasons have been provided, the jurisprudence
shows that reconsideration need not be given in cases where the reasons simply
do not address every individual argument made by a party (see Haque v Canada
(Minister of Citizenship and Immigration), [2000] FCJ No 1141, paras
5-6).
[17]
Having
considered these affidavits, I can assure the Applicant that no significant
matter has been overlooked in arriving at my Order.
[18]
Therefore,
the Motion is dismissed.
ORDER
THIS COURT ORDERS that :
1. The Notice of Motion dated December 6, 2010 is
dismissed;
2. The Order rendered on November
26, 2010 stays; and
3. There is no issue as to costs.
"André
F.J. Scott"
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