Date: 20030515
Docket: IMM-98-01
Citation: 2003 FCT 601
Ottawa, Ontario, this 15th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
LAI SHEUNG EVA LEE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion in writing by Lai Sheung Eva Lee (the "applicant") for an order granting her leave to amend her prayer for relief to read as follows:
a) a writ of mandamus that the matter be returned for re-determination as of the date of the refusal and on the basis of law as it existed at the time of refusal;
b) a declaration that section 190 of the Immigration and Refugee Protection Act contains a permissive, as opposed to a mandatory, direction;
c) a declaration that section 350 of the Immigration and Refugee Protection Regulations is ultra vires of the framework of section 190 of the Act;
d) a declaration that a mandatory interpretation of the term "shall" in section 190 of IRPA offends section 2(1)(e) of the Canadian Charter of Rights and Freedoms as denying the applicant a fair hearing in accordance with the principles of natural justice or, in the alternative, that there is a natural presumption against interpreting the word "shall" in a manner that would lead to retroactivity;
e) and for such other relief as this Honourable Court may deem just.
[2] The hearing of the judicial review application in this matter was adjourned so that the applicant could make this motion.
[3] At the outset, it must be noted that this is simply a motion to amend the prayer for relief. It is not a determination of the validity of any of the claims for relief that the applicant is making. That will be determined by the judge who hears the judicial review application.
[4] The motion is made pursuant to Rule 53(2) of the Federal Court Rules, 1998, S.O.R./98-106.
[5] The respondent opposes the amendment as it states any such order would be inconsistent with the law. As I pointed out earlier, this is not the case. It will be the judge who hears the judicial review application who makes a ruling on the relief sought by the applicant.
[6] Accordingly, I allow the applicant's motion to amend her prayer for relief.
ORDER
[7] THIS COURT ORDERS that the applicant's motion to amend her prayer for relief as follows:
1. A writ of mandamus that the matter be returned for redetermination as of the date of the refusal and on the basis of law as it existed at the time of refusal;
2. A declaration that section 190 of the Immigration and Refugee Protection Act contains a permissive, as opposed to a mandatory, direction;
3. A declaration that section 350 of the Immigration and Refugee Protection Regulations is ultra vires the framework of section 190 of the Act;
4. A declaration that a mandatory interpretation of the term "shall" in section 190 of IRPA offends paragraph 2(1)(e) of the Canadian Charter of Rights and Freedoms as denying the applicant a fair hearing in accordance with the principles of natural justice or, in the alternative, that there is a natural presumption against interpreting the word "shall" in a manner that would lead to retroactivity;
5. And for such other relief as this Honourable Court may deem just.
is allowed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 14, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-98-01
STYLE OF CAUSE: LAI SHEUNG EVA LEE
- and -
THE MINISTER OF CITIZENSHIP
IMMIGRATION
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, May 15, 2003
WRITTEN REPRESENTATIONS BY:
Cecil L. Rotenberg, Q.C.
FOR APPLICANT
Marissa Bielski
FOR RESPONDENT
SOLICITORS OF RECORD:
Cecil L. Rotenberg, Q.C.
255 Duncan Mill Road
Suite 803
Toronto, Ontario
M3B 3H9
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
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