Canada (Minister of Citizenship and Immigration) v. Chern, 2005 FC 878

Date: 20050620

Docket: T-107-05

Citation: 2005 FC 878

Vancouver, British Columbia, Monday, the 20^th day of June, 2005

Present:           THE HONOURABLE MR. JUSTICE TEITELBAUM                             

BETWEEN:

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                            Appellant

                                                                         - and -

                                                       YEONG SHUENN CHERN

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application, pursuant to Rule 369, by the Appellant, for an Order either dispensing with the requirement in Rule 128(1)(b) that the Notice of Application in this matter be mailed to the residence of the Respondent, pursuant to Rule 136(1) or, in the alternative, validating service of the Notice of Application pursuant to Rule 147.

[2]                The grounds for the application, as stated in the Notice of Motion are:

(1)         the Appellant delivered the Notice of Application to the Respondent's cousin at the Respondent's address;

(2)         the Appellant did not mail the Notice of Application to the Respondent at his address, but has since attempted to correspond with the respondent to inform him of this proceeding; and

(3)         the Respondent has recently moved from his residence and the Appellant has been unable to locate him.

The Appellant relies on Federal Court Rules 128(1)(b), 136(1) and 147.

[3]                After reading the documents found in the file, and in particular the affidavit of Katherine Reilly, I am satisfied that on January 21, 2005, the Notice of Application was served at the home of the Respondent at 7651 - 3 Moffatt Road in Richmond, British Columbia. According to Ms. Reilly, in paragraph 5 of her affidavit, she states:

On January 21, 2005 the Minister attempted to serve the Notice of Application on Mr. Chern at his home at 7651 - 3 Moffatt Road in Richmond, British Columbia. In accordance with Rule 128(1)(b) of the Federal Courts Rules, the Notice of Application was delivered to an adult female at that address named Denise Sy, who identified herself as Mr. Chern's cousin.

[4]                From the facts stated in Ms. Reilly's affidavit, I have no reason to believe that the Respondent did not receive the Notice of Application and I am convinced, from reading the affidavit, that the Respondent is purposely avoiding service.

[5]                Therefore, pursuant to Rule 147, I hereby Order that the service of the Notice of Application at the home of the Respondent on the Respondent's cousin is a valid service of the Notice of Application.

(Sgd.) "Max M. Teitelbaum"

Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-107-05

STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION

- and -

YEONG SHAUENN CHERN

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER AND ORDER BY:         TEITELBAUM J.

DATED:                                                          June 20, 2005

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: