Date: 20010928
Docket: IMM-545-00
Neutral citation: 2001 FCT 1072
BETWEEN:
MASOOD ALI KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
McKEOWN J.
[1] The applicant seeks to set aside the Order of Prothonotary Lafrenière dated January 18, 2001, wherein the Prothonotary dismissed the applicant's application for judicial review on status review for delay.
[2] As stated in Her Majesty the Queen v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.). discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: 1) they are clearly wrong in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts or 2) they raise questions vital to the final issue of the case. In such cases the judge ought to exercise his own discretion de novo. This case falls within the second exception and so I must exercise my own discretion de novo. The facts of this case are set out in the three paragraphs on page 2 of the Order of Prothonotary Lafrenière.
[3] I am not satisfied on the material before me that the applicant has provided a valid explanation for his delay from October 4, 2000 to December 1, 2000 when the Notice of Status Review was issued. The applicant is essentially requesting the Court to move the proceedings forward in the same way as was suggested in his proposal on October 4, 2000, upon which he failed to act.
[4] The communication problems between counsel and the applicant cannot possibly account for the substantial delay in making a decision whether to conduct cross-examination and in completing same. The holidays referred to by the counsel for the applicant came at the end of November and there is no explanation for the gap prior to that time.
[5] In Baroud v. Canada (1998), 160 F.T.R. 91 (F.C.T.D.), Hugessen J. described the twofold test to be applied in the adjudication of a status review:
In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions:
1) what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred?; and
2) what steps is the plaintiff now proposing to move the matter forward?
[6] Accordingly, I agree with Prothonotary Lafrenière to find that the measures proposed by counsel for the applicant to move the proceedings forward insufficient to satisfy the second part of the test. Since the applicant failed to provide satisfactory measures to move the proceedings forward there is absolutely no reason to order that the application be continued as a specially managed proceeding.
ORDER
[7] Therefore, the applicant's appeal from the Order of Prothonotary Lafrenière is dismissed and the applicant's application for judicial review is dismissed for delay.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
September 28, 2001
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