Date: 20020710
Docket: A-419-02
Neutral citation: 2002 FCA 292
PRESENT: ISAAC J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
JACOB FAST
Respondent
Heard at Ottawa, Ontario, on July 10, 2002.
Order delivered from the Bench at Ottawa, Ontario, on July 10, 2002.
REASONS FOR ORDER OF THE COURT BY: ISAAC J.A.
Date: 200207110
Docket: A-419-02
Neutral citation: 2002 FCA 292
PRESENT: ISAAC J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
JACOB FAST
Respondent
REASONS FOR ORDER OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on July 10, 2002)
ISAAC J.A.
[1] The Minister of Citizenship and Immigration (hereafter "the Minister") brings this motion for a stay of the operation of a ruling made by Pelletier J.A. sitting as a judge of the Trial Division, pending the final disposition of an appeal from that ruling, made on 8 July, 2002. The learned Judge made the procedural ruling on a reference taken under section 18 of the Citizenship Act, R.S.C. 1985, c. C-29.
[2] The motion is brought pursuant to s. 50(1)(b) of the Federal Court Act, R.S.C. 1985, c. F-7, which reads:
| 50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
|
50. (1) La Cour a le pouvoir discrétionnaire de suspendre les procédures dans toute affaire_:
a) au motif que la demande est en instance devant un autre tribunal;
b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
|
[3] The ruling of the learned Judge is contained in the passages taken from the transcript of the proceedings before him, which are reproduced below:
My view is that it was clear that the documents from List 4 fell into a different category than other exhibits. We all recognize that there was no useful purpose served inputting in a large number of these documents when only some of them might be relied upon.
To facilitate that, the documents went into evidence in bulk with the proviso that the defence would know from the written submissions which of those documents the Minister intended to rely upon and for what purpose. The defence would then have the month, which we provided in the schedule, to respond. If they raise additional documents, then Minister would have knowledge of them from the Defendant's written submissions.
That has not happened and it is a source of prejudice to the Defendant. The list which was identified by Mr. Vita and provided by Ms. Vasilaros was provided outside the deadline which was agreed for the Plaintiff's written submissions.
I am not prepared at this stage to allow this volume of documents to go in without adequate notice, which brings us to the question of an adjournment.
I don't believe that what was said about our manner of proceeding was ambiguous. But even it if was and all that was required was timely disclosure, even that did not occur as the communication of the documents to be relied upon was outside the time limit provided for the exchange of submissions. I am not disposed to grant an adjournment. The timelines were clear and were to be complied with.
I might add as a further comment that I am taken aback by the volume of documents to be entered given the fact that we only have one week set aside for argument. There is no more time available for this matter. In the time remaining, we need to conclude the Minister's case, conclude the defence case and allow for reply.
What I propose to do, if it is required, is to break for the day to allow Ms Vasilaros to reorganize her notes, to refer only to the documents in evidence and those referred to in her brief.
We will resume tomorrow morning at 9:30, and I expect the Minister's submissions to be completed by the end of tomorrow. I expect the defence to complete their submissions by noon Friday, which will leave some time for reply.
[4] In argument Mr. Préfontaine for the Minister (who was not counsel at trial) took four positions. First, that the ruling of the motions Judge prevented the Minister from presenting all the relevant evidence and constituted a denial of the Minister's natural justice right to a fair hearing. Second, that his appeal raises a serious issue: whether prohibiting a party from referring to documents already forming part of the record simply because of a procedural failure to deliver a particularised list within the time limited by the Court violates natural justice. Third, that if the stay is not granted pending the final disposition of the appeal, the Minister will suffer irreparable harm because any judgment that the motions Judge makes will be final and subsection 18(3) of the Citizenship Act, prevents any appeals from it. Fourth, that the balance of inconvenience favours the appellant.
[5] Mr. Davies for the respondent makes three points. First, that there was no right of appeal from an interlocutory ruling made by a Judge under section 18 of the Citizenship Act. Second, there is no serious issue raised by the appeal. Third, that the balance of convenience favours the respondent who is 92 years old and suffering from Alzheimer's disease.
[6] I am of the view that the motion for an order staying the operations of the ruling must fail for the following reasons.
[7] First, the decision of the learned Motions Judge to grant an adjournment or to allow the appellant to refer, in his submission, to documents submitted out of time was discretionary. The appellant has not shown that the Judge did not take into account all relevant circumstances.
[8] In other words, in my respectful view, there are no serious issues to be tried. In view of this conclusion I interpret the authorities as saying I need not concern myself with the issues of irreparable harm and balance of convenience. Furthermore, there is doubt that an appeal from the ruling does lie to this Court. I am therefore of the view that the motion should be dismissed with costs. The costs of this motion should be fixed at $1,000.
"Julius A. Isaac"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-419-02
STYLE OF CAUSE: Minister of Citizenship and Immigration v. Jacob Fast
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: July 10, 2002
REASONS FOR ORDER RENDERED FROM THE BENCH BY: ISAAC J.A.
APPEARANCES:
Mr. Alain Préfontaine
Mr. Daniel Poulin FOR THE APPELLANT
Mr. Michael Davies
Mr. Hal Mettson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPELLANT
Bayne, Sellar, Boxall
Ottawa, Ontario FOR THE RESPONDENT
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