Date: 20001221
Docket: IMM-151-97
OTTAWA, ONTARIO, DECEMBER 21, 2000
PRESENT: THE HONOURABLE MR JUSTICE BLANCHARD
BETWEEN:
NADEZHDA ROGOVA
DMITRIY ROGOV
Applicants
- and -
THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS AND ORDER
[1] By this proceeding the applicants are asking the Court to quash the order made by McGillis J. on April 7, 1997 and reopen the instant application for leave and application for judicial review.
[2] After analysing the motion, I find that the applicants' only basis for the proceeding is subsection 227(c) of the Federal Court Rules, 1998.
[3] The gist of the applicants' argument is based on the rule in s. 82, which was codified in 1998. Although s. 82 of the Federal Court Rules, 1998 did not exist at the time, the rule was already well settled. Section 82 states that:
| 82. Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.
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82. Sauf avec l'autorisation de la Cour, un avocat ne peut à la fois être l'auteur d'un affidavit et présenter à la Cour des arguments fondés sur cet affidavit.
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[4] Accordingly, the applicant is asking the Court, based on this rule, to strike out the pleading of February 18, 1997 pursuant to subsection 227(c) of the Federal Court Rules, 1998.
[5] I cannot accept this motion for three reasons. First, there is an exception to the rule of non-use of counsel's affidavit by the latter: the Court may go beyond this rule in cases where counsel was the only one who could testify to certain facts. It appears from the record that this was such a case.
[6] Second, at the time counsel for the applicants was the only person to have knowledge of the facts alleged in her motion and so had to sign an affidavit in support of her allegations.
[7] Finally, the allegations supported by the affidavit of February 13, 1997 are not in dispute. It is worth noting that the basis of her application was essentially with respect to a procedural motion, not questions of substantive law. Accordingly, in keeping with the decisions of this Court, her affidavit is acceptable.[1] It would undoubtedly have been better if the applicant herself could have entered the affidavit in question in the record. However, such an omission is not a contravention of the Rules of this Court.
[8] For all these reasons, I dismiss the female applicant's motion to strike the pleading of February 18, 1997 pursuant to subsection 227(c) of the Federal Court Rules, 1998, quash the order of April 7, 1997 and order that the case be reopened.
ORDER
HAVING READ the documents filed;
THE COURT ORDERS THAT:
1. the motion to quash an order made on April 7, 1997, strike the pleading of February 18, 1997 pursuant to subsection 227(c) of the Federal Court Rules, 1998 and order that the matter be reopened is dismissed.
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"Edmond P. Blanchard"
Judge
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Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-151-97
STYLE OF CAUSE: NADEZHDA ROGOVA DMITRIY ROGOV v. MCI
MOTION ON WRITTEN REPRESENTATIONS
REASONS AND ORDER BY: Blanchard J.
DATED: December 21, 2000
WRITTEN REPRESENTATIONS BY:
Manuel Centurion FOR THE PLAINTIFF
Annie Van Der Meerschen FOR THE DEFENDANT
SOLICITORS OF RECORD:
Manuel Centurion FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
[1] Edbro Ltd. v. Del Equipment Ltd. (1985), 4 C.P.R. (3d) 119 (Fed. T.D.). That judgment was affirmed by the Federal Court of Appeal at (1986), 10 C.P.R. (3d) 122 (Fed. C.A.).
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