Date: 20031121
Docket: T-768-03
Citation: 2003 FC 1376
Toronto, Ontario, November 21st, 2003
Present: Madam Prothonotary Milczynski
BETWEEN:
KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Keyvan Nourhaghighi, has brought this motion, heard on November 3, 2003, seeking the following relief:
(a) that Lorne McClenaghan be required to show cause why he should not be held in contempt of court;
(b) that Lorne McClenaghan be required to undergo a psychiatric assessment;
(c) that the Respondent's motion record filed by Lorne McClenaghan on October 10, 2003, be struck out for irregularities and abuse of process; and
(d) that costs be awarded to the Applicant, Mr. Nourhaghighi.
Background
[2] Lorne McClenaghan is counsel for the Respondent, the Minister of Citizenship and Immigration, and has appeared in various interlocutory proceedings in this matter - an application filed by Mr. Nourhaghighi on May 13, 2003, for an order requiring the Minister to process his application for Canadian citizenship.
[3] On September 2, 2003, prior to the hearing of his application, Mr. Nourhaghighi obtained his Canadian citizenship. The Respondent subsequently brought a motion, filed on October 10, 2003, to have Mr. Nourhaghighi's application dismissed on the grounds that, in the circumstances, the application and the relief sought were moot. It is this motion that Mr. Nourhaghighi now seeks to have struck from the court file, along with the further and other relief he seeks that is noted above.
[4] At the hearing of the motion on November 3, 2003, the Court heard submissions from Mr. Nourhaghighi, which included his concerns regarding the date for the hearing of his main application. Indeed, that the hearing of Mr. Nourhaghighi's application be scheduled expeditiously was the subject of another motion, resolved by Prothonotary Lafrenière who advised Mr. Nourhaghighi on October 20, 2003 that his application would be scheduled for hearing on the earliest available date in Toronto.
[5] That date is February 17, 2004 and the Court so advised the parties on November 3, 2003. While Mr. Nourhaghighi would prefer, and insists on an earlier date, the February 17th date is the earliest date available, and will be fixed by Order below. With respect to the various specific headings of relief sought by Mr. Nourhaghighi in the within motion, I will deal with each separately and in turn.
(a) That Lorne McClenaghan show cause for contempt
[6] Rule 467 of the Federal Court Rules, 1998 sets out a two-step procedure for an order finding a person to be in contempt of court under Rule 466.
[7] First, the applicant seeking the order must establish a prima facie case that contempt of court has been committed, whereupon an order will issue requiring the person alleged to be in contempt to "show cause", and appear and answer the allegations. Whether a prima facie case can be established, is determined upon affidavit evidence filed by the person seeking the show cause order, pursuant to Rule 467 of the Federal Court Rules, 1998.
[8] Contempt proceedings are analogous to criminal to or quasi-criminal proceedings. The burden on a person alleging contempt is proof beyond a reasonable doubt (Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217; Lyons Partnership, L.P. v. MacGregor,(2000) 186 F.T.R. 241).
[9] In this case, Mr. Nourhaghighi has filed his motion record, containing three affidavits outlining what conduct of Mr. McClenaghan's he asserts amounts to contempt of court. The conduct complained of relates to how he has been treated by Mr. McClenaghan as a party in these proceedings (for example, Mr. Nourhaghighi complains Mr. McClenaghan stood on the wrong side of the court room and failed to greet him). Mr. Nourhaghighi also complains of Mr. McClenaghan's personal appearance in court, and Mr. McClenaghan's preparation of materials filed with the court.
Rule 466 provides:
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Subject to rule 467, a person is guilty of contempt of Court who
(a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;
(b) disobeys a process or order of the Court;
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Sous réserve de la règle 467, est coupable d'outrage au tribunal quiconque :
a) étant présent à une audience de la Cour, ne se comporte pas avec respect, ne garde pas le silence ou manifeste son approbation ou sa désapprobation du déroulement de l'instance;
b) désobéit à un moyen de contrainte ou à une ordonnance de la Cour;
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(c) acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;
(d) is an officer of the Court and fails to perform his or her duty; or
(e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.
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c) agit de façon à entraver la bonne administration de la justice ou à porter atteinte à l'autorité ou à la dignité de la Cour;
d) étant un fonctionnaire de la Cour, n'accomplit pas ses fonctions;
e) étant un shérif ou un huissier, n'exécute pas immédiatement un bref ou ne dresse pas le procès-verbal d'exécution, ou enfreint une règle dont la violation le rend passible d'une peine.
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[10] Nothing in the motion material filed by Mr. Nourhaghighi establishes a prima facie case of contempt on the part of Mr. McClenaghan. Rather, the allegations made by Mr. Nourhaghighi are improper, and constitute a rather vitriolic personal attack on the integrity and professional capabilities of counsel for the Minister. This part of the relief sought by Mr. Nourhaghighi is dismissed.
(b) That Lorne McClenaghan be required to undergo a psychiatric assessment
[11] There is no basis in law for the Court to order counsel for a party to undergo a psychiatric assessment. In any event, the grounds upon which Mr. Nourhaghighi seeks such order are nothing short of outrageous. In the proceedings before me, Mr. McClenaghan has acted professionally and has shown the Court and Mr. Nourhaghighi both courtesy and respect.
(c) That the Respondent's motion record filed on October 10, 2003 be struck for irregularities and abuse of process
[12] As noted above, the motion filed by the Respondent on October 10, 2003, seeks to have the Applicant's application dismissed on the grounds that the Order or relief sought by the Applicant is moot. Rather than file responding motion material and argue the motion on its merits, Mr. Nourhaghighi has again launched a personal attack against counsel for the Respondent. The within motion seeks to have the Respondent's motion material struck for irregularities, non-compliance with the Federal Court Rules, 1998, and as an abuse of process.
[13] Having reviewed the impugned motion material, I find nothing improper or any irregularity such that an Order should issue to have it removed from Court files or consideration on the hearing of the motion. It is clear that the Applicant does not like the litigation strategy of the Respondent, but there is nothing improper under the Rules, or contemptuous about either the relief that is sought by the Respondent, or the manner in which the motion was brought by the Respondent's counsel.
(d) Costs
[14] In light of the above, the Applicant is not entitled to an award of costs on this motion.
ORDER
THIS COURT ORDERS that
1. The Applicant's motion is dismissed, with costs to the Respondent in any event of the cause.
2. The hearing of the Applicant's application dated May 13, 2003 is fixed for hearing at the Federal Court, Canada Life Building, 330 University Avenue, in the city of Toronto, Ontario, on Tuesday, February 17, 2004, at 9:30 a.m., immediately following and subject to the disposition of the Respondent's motion dated October 10, 2003.
"Martha Milczynski"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-768-03
STYLE OF CAUSE: KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 3, 2003
REASONS FOR ORDER
AND ORDER BY: MILCZYNSKI P.
DATED: NOVEMBER 21, 2003
APPEARANCES BY: Mr. Keyvan Nourhaghighi
FOR APPLICANT, ON HIS OWN BEHALF
Mr. David Tyndale
Mr. Lorne McClenaghan
FOR RESPONDENT
SOLICITORS OF RECORD: Keyvan Nourhaghighi
Toronto, Ontario
FOR APPLICANT, ON HIS OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031121
Docket: T-768-03
BETWEEN:
KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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