Bermido v. Canada (Minister of Citizenship and Immigration), 2004 FC 58

Date: 20040114

Docket: IMM -2866-03

Citation: 2004 FC 58

CALGARY, Alberta, Wednesday, the 14^th day of January, 2004.

PRESENT: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

                                                        MARITES HUGO BERMIDO

                                                                                                                                                         Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Respondent

                                               REASONS FOR ORDER AND ORDER

                                 (Delivered Orally from the Bench and Subsequently Edited and

                                                    Written for Precision and Clarification)

[1]                 The applicant is no stranger to the legal system. She has been twice convicted of criminal offenses and has been subject to a deportation order for some time, which deportation has been stayed twice.

[2]                 She is thus cognizant of the need for counsel and by her own testimony knew since January 2003 that she would have immigration issues to face.

[3]                 She was given an extension of time to file and leave to bring this judicial review.

[4]                 In respect to the deportation hearing in question, she was notified of the hearing in April for a hearing to take place in May and at her request got an extension of more than two months to find counsel.

[5]                 When the hearing took place in July it was more than six months since the date she knew there would be such a hearing and more than two months since the actual notice. I am not prepared to find that under these circumstances the Board denied her the right to counsel by failing to agree to another adjournment. Her lack of counsel was entirely due to her lack of diligence in seeking same.

[6]                 Given the facts of this case, her failure to comply with the terms of the stay of the deportation order, her second conviction and the testimony of experts as to her compulsive deceitfulness, the presence of counsel would not have made any difference to the outcome of the case.

[7]                 Even if there has been a violation of procedural fairness, the Court in a judicial review hearing has the discretion to dismiss a case where satisfied that the breach would not have affected the outcome of the decision under review. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board [1994] 1 S.C.R. 202, at page 228; as followed in Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.). I would have no hesitation to exercise that discretion, if required.

[8]                 Accordingly this application is dismissed. .

                                                                            ORDER

THIS COURT ORDERS that:

This application is dismissed.

                                                                                                                                    "K. von Finckenstein"

                                                                                                                                                            J. F. C.         

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-2866-03

STYLE OF CAUSE:                           Marites Hugo Bermido v. The Minister

of Citizenship and Immigration                      

PLACE OF HEARING:                     CALGARY, Alberta

DATE OF HEARING:                       January 14, 2004

REASONS FOR ORDER AND ORDER : von Finckenstein, J.

DATED:                                                January 14, 2004

APPEARANCES:

Ms. Lori A. O'Reilly                                                                       FOR APPLICANT

Ms. Carrie Sharpe                                                                          FOR RESPONDENT

SOLICITORS OF RECORD:

O'Reilly Law Firm

Calgary, Alberta                                                                             FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada     FOR RESPONDENT