Moghbel v. Canada (Attorney General), 2007 FCA 25

Date: 20070130

Docket: A-23-07

Citation: 2007 FCA 25

Present:          SHARLOW J.A.

BETWEEN:

KAMRAN MOGHBEL

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on January 30, 2007.

REASONS FOR ORDER BY:                                                                                  SHARLOW J.A.

Date: 20070130

Docket: A-23-07

Citation: 2007 FCA 25

Present:          SHARLOW J.A.

BETWEEN:

KAMRAN MOGHBEL

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

SHARLOW J.A.

[1]               Mr. Kamran Moghbel is the subject of an order dated August 10, 1993 prohibiting him from commencing an action in the Federal Court without leave of the Federal Court. He is also the subject of an order dated February 24, 1997 (Court File A-245-94) prohibiting him from commencing and continuing any proceeding in the Federal Court of Appeal without leave of the Federal Court of Appeal.

[2]               On October 20, 2006, Mactavish J. of the Federal Court granted Mr. Moghbel leave to commence an application for judicial review of a 1994 decision of the Canadian Human Rights Commission. However, Mr. Moghbel also required an extension of time to commence that application. Mr. Moghbel’s motion to the Federal Court for an extension of time was denied by Blanchard J. by order dated December 15, 2006 (2006 FC 1499).

[3]               On January 15, 2007, Mr. Moghbel submitted a notice of appeal of the decision of Blanchard J. The Registry Officer should have been aware that Mr. Moghbel is the subject of a prohibition order from this Court, and his notice of appeal should not have been accepted for filing. Rather, it should have been referred to a Judge for directions pursuant to Rule 72(1)(b). However, the notice of appeal was accepted for filing.

[4]               The Federal Courts Rules do not contain a provision permitting the filing of a notice of appeal to be rescinded on the Court’s own motion on the basis that it was accepted for filing upon being submitted in apparent breach of a prohibition order. However, it is open to the Court, pursuant to Rule 74(1), to have the notice of appeal removed from the Court file, effectively reversing the improper commencement of the appeal. However, that step cannot be taken on the Court’s own motion without giving the parties an opportunity to be heard (Rule 74(2)).

[5]               Accordingly, Mr. Moghbel will be required to show cause, by a specified deadline, why his notice of appeal of the order of Blanchard J. should not be removed from the court file and his filing fee returned to him. He will be given an opportunity to seek, at the same time, leave to commence or continue the appeal.

“K. Sharlow”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-23-07

STYLE OF CAUSE:                                                              KAMRAN MOGHBEL v. ATTORNEY GENERAL OF CANADA

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                             SHARLOW J.A.

DATED:                                                                                 JANUARY 30, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: