Date: 19981215
Docket: T-483-98
BETWEEN:
MALIK SULTAN MAHMOOD,
Applicant,
- and -
HER MAJESTY THE QUEEN,
THE ATTORNEY GENERAL OF CANADA, THE MINISTER
OF EXTERNAL [FOREIGN] AFFAIRS AND
INTERNATIONAL TRADE and
THE PASSPORT OFFICE,
Respondents.
REASONS FOR ORDER ON RECONSIDERATION MOTION
MULDOON, J.
[1] The respondents move for reconsideration of this Court's order rendered on September 22, 1998, on the basis that it conflicts with the Court's reasons of that date.
[2] There is an error, a clerical or even editorial error, and it resides in the Court's reasons, not in the order. It is an error of verb mood. In paragraph [12] of those reasons, which spans pp. 6 and 7, the sentence beginning on the bottom line of page 6 which begins: "Accordingly, the respondents' motion * * *" ought to have carried the verb "to be" in the conditional, rather than the indicative. That sentence was meant to have been written: "Accordingly the respondents' motion should (or ought to) be allowed on this point." That conditional mood is corroborated by the very next sentence: "The determination of this question, however, may be seen in a different light by the judge who will make the substantive adjudication between the parties." [Emphasis added.]
[3] The tenor of the reasons and the order are quite consistent, once the verb mood is corrected, as above. Paragraphs [19] and [20] make that corroboration of consistency clear, thus:
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[19] In Pharmacia Inc. v. Minister of National Health & Welfare (1994) 58 C.P.R. (3d) 207, Mr. Justice Strayer noted that in judicial review applications parties should proceed to the merits in accordance with the timetable set out in the Rules (or by the Court). At page 215 Strayer J.A. states: |
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Unlike the rules pertaining to actions, the 1600 Rules pertaining to judicial review provide a strict timetable for preparation for hearing and a role for the court in ensuring there is no undue delay. . . This all reinforces the view that the focus in judicial review is on moving the application along to the hearing state as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case. |
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Therefore, the respondents should be allowed to use the registrar's mistake to their advantage by being accorded an increased amount of time within which to file their responding materials, a result to which the applicant, by counsel, consents, in any event. |
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[20] In one sense, that expressed in Pharmacia v. M.N.H. & W. (above), this entire motion by the respondents is premature, for these matters ought to be dealt with by the judge who will adjudicate the substantive issues between the parties, without any interlocutory interventions. * * * |
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[4] All of the foregoing indicates the reality of the error in the expression of the Court's reasons, not the order, in expressing an indicative, instead of a conditional: "should be" or "ought to be", which would have been quite consistent with the rest of the reasons and the order. Any striking of paragraph 1(a), as Strayer, J.A. held, ought to have been left to the motions judge's determination and, despite rule 302, not made in a piecemeal and premature interlocutory mode.
[5] Therefore the Court's order dated September 22, 1998 is affirmed, and motion to reconsider is dismissed.
Judge
Ottawa, Ontario
December 15, 1998
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