Date: 19981119
Docket: IMM-3353-98
BETWEEN:
NELSON ARMANDO ORELLANA-GUTIERREZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
[1] The applicant served and filed a motion under Rule 369 of the Federal Court Rules, 1998 to request the Court to reconsider my Order dated October 19, 1998, wherein I dismissed the applicant"s application for leave and judicial review of the Minister"s opinion that the applicant is a danger to the public in Canada pursuant to Rule 397 of the Federal Court Rules, 1998 . The applicant also requested an extension of time in which to make an application for the said reconsideration. The request for extension of time is granted.
[2] The respondent"s motion record spells out the process leading up to this motion for reconsideration, namely:
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2. On July 6, 1998, the Applicant filed an application for leave and for judicial review of the opinion of the Minister that he constitutes a danger to the public in Canada. |
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3. On August 20, 1998, the Applicant perfected his application for leave and for judicial review by serving and filing his application record. |
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4. On September 11, 1998, the Applicant filed a motion for an order staying the execution of his removal order which was heard by teleconference on September 17, 1998. On September 16, 1998, the Applicant filed a motion record and the Respondent filed an Affidavit of Kathleen E. Galloway in opposition to the motion for a stay of execution. |
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5. By order dated September 17, 1998, Mr. Justice Cullen granted a stay of execution of the Applicant"s removal order pending determination of the application for leave and for judicial review of the Minister"s decision that the Applicant is a danger to the public in Canada. |
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6. On September 21, 1998, a Memorandum of Argument was filed by the Respondent along with an Affidavit of Jean Melnychuk which introduced in evidence all of the materials that were before the Minister"s delegate which had not been included in the applicant"s application record. |
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7. By order dated October 19, 1998, Mr. Justice Cullen ordered that the Applicant"s application for leave and for judicial review be dismissed. |
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8. Rule 397 of the Federal Court Rules, 1998 provides that a party may request that the Court to reconsider the terms of an order that was made, on the ground that |
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(a) the order does not accord with the reasons given for it; or |
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(b) a matter that should have been dealt with has been overlooked or accidentally omitted. |
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9. Rule 397 of the Federal Court Rules, 1998 is the parallel of Rule 337(5) of the former Federal Court Rules.
[3] The air of finality is clearly spelled out in Steward v. Canada (M.E.I.) [1988] 3 F.C. 452 (F.C.A.).
[4] Once signed by a Judge it becomes a final order, and this direction in place for ten years has provided the guidance necessary for the Court when dealing with an application for reconsideration.
[5] Counsel for the respondent has put it succinctly in paragraphs 11 and 13 of the respondent"s motion record.
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11. The Applicant seeks to have this Court reconsider its order dismissing his application for leave and for judicial review on the basis that by granting the Applicant"s interlocutory application for a stay of execution of his removal order, this Court impliedly found that there was a serious issue to be tried and that this Court made comments to that effect at the application for a stay of execution. The Applicant is in effect seeking a reversal of Mr. Justice Cullen"s order of October 19, 1998. |
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13. As there were no reasons given for the order dismissing the leave application, it is submitted that it cannot be said that the order does not accord with the reasons. There is also no evidence to establish that a matter that should have been dealt with has been overlooked or accidentally omitted by the Court.
[6] It is a fact that the Court as authority to reconsider its Order is limited to the two grounds set out in Rule 397:
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(a) the order does not accord with the reasons given for it; or |
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(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
[7] Having carefully examined all the evidence advanced by the applicant and the respondent, particularly the affidavit of the applicant, I am satisfied that I should reconsider my decision of October 19, 1998, because clearly a matter that should have been dealt with has been overlooked or accidentally omitted.
[8] Accordingly, I will allow the application for leave and for judicial review.
OTTAWA, ONTARIO
November 19, 1998. J.F.C.C.
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