Date: 20001024
Docket: IMM-3835-00
BETWEEN:
MEILI CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The motion before me seeks orders:
| 1. That certain material alleged to be the subject of solicitor and client privilege ("the privileged material") be produced. |
| 2. That the Applicant be permitted to use a transcript of the cross-examination that took place in another proceeding involving the same visa officer. |
[2] Dealing first with the privileged material, it appears the material was included in the file before the visa officer as the pages are numbered among the pages of that file. It is alleged that the pages consist of legal advice given to the visa officer who made an earlier decision with respect to the same applicant. The applicant herein argues that even if the material was privileged when supplied to the first visa officer, the privilege was waived when the material was passed on to the second visa officer. The alleged legal advice was given by a lawyer, a government employee to a member of the Immigration department.
[3] There is authority for the proposition that passing legal advice to another member of the department does not waive the privilege. There is also the well-established common law principle of common interest privilege set out most completely in the Buttes Gas and Oil Case (Buttes Gas and Oil Co. v. Hammer (3), [1981] 3 All E.R. 616). However, I am dealing theoretically. The Court of Appeal has indicated that before determining material be privileged I must inspect it. If counsel are unable to agree to the exclusion of these materials as privileged, a motion should be brought at the hearing of which the material will be present in sealed envelopes and the decision can be made on the subject of privilege after the material is inspected. This matter before me for the privileged material will be adjourned sine die to be brought on by either party for the purposes of determining the matter of privilege.
[4] With regard to the request to admit as evidence the transcript of the cross-examinations, any use which could be made of a cross-examination conducted in another proceeding of an affiant who has not filed an affidavit in the current proceeding would have to be most carefully limited. It would be a species of hearsay, and its admissibility would best be decided by the judge at the hearing. Therefore, this part of the motion will be dismissed.
ORDER
[5] The part of the motion seeking the production of alleged privileged material is adjourned sine die to be brought on by either party to determine the matter of privilege.
[6] The motion seeking to use a transcript of a cross-examination from another application is dismissed without prejudice to the applicant's right to seek leave of the judge at hearing to introduce the transcript in evidence.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
October 24, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MEILI CHEN |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
MATTER CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: TUESDAY, OCTOBER 24, 2000
| WRITTEN SUBMISSIONS BY: Mr. Timothy E. Leahy, Esq. |
| SOLICITORS OF RECORD: TIMOTHY E. LEAHY, ESQ. |
| 5075 Yonge Street, Suite 408 |
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20001024
Docket: IMM-3835-00
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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