Date: 20001106
Docket: IMM-2768-00
BETWEEN:
TU VAN DUONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] In light of the particular circumstances relating to the issuance of the Order I granted, I have decided exceptionally to deliver these reasons.
[2] Subsection 82.1(6) of the Immigration Act1 provides that:
| Subject to subsection (7), where leave to commence an application for judicial review is granted, the application for judicial review shall be deemed to have been commenced and the judge granting leave shall fix the day and place for the hearing of the application for judicial review.
|
Sous réserve du paragraphe (7), si la demande d'autorisation est accueillie, la demande de contrôle judiciaire est réputée avoir été formée et le juge de la Cour fédérale qui a accueilli la demande d'autorisation fixe la date et le lieu d'audition de la demande de contrôle judiciaire.
|
[3] Subsection (7) provides:
| In fixing a day pursuant to subsection (6), the judge shall set the matter down for a day that is no sooner than thirty days, and no later than ninety days, after the day on which leave to commence the application for judicial review was granted, unless the parties agree that the matter may be set down on an earlier day.
|
La date fixée conformément au paragraphe (6) ne peut être postérieure de moins de trente jours, sauf convention contraire des parties, ni de plus de quatre-vingt-dix jours à la date à laquelle la demande d'autorisation a été accueillie.
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[4] I have granted the application for leave in this file. However, I am unable, due to a lack of available judges to hear the matter, to obtain from the administration a date that would meet the ninety day requirement of subsection (7).
[5] I am, therefore, left with the following choices:
| 1. To wait and sign my order when there is a judge available to hear the matter; or |
| 2. To sign the order immediately and be in non compliance with the deadline set up in subsection (7). |
[6] After careful consideration, I am of the view that I should issue the order at this time. It is most unfortunate that it cannot meet the time limits set out in subsection (7) but, in my view, it is in the interest of justice not to delay the issuance of the order. It is the lesser of two evils. Fairness requires that the applicant knows that leave has been granted and when it has been granted. In my opinion, this principle supersedes the difficulty of scheduling within the time limit, which is outside the control of the judge. I am satisfied that the spirit of subsection (7) is that the matter is heard expeditiously as soon as it is materially possible. "Nemo tenetur ad impossibilia".
[7] The difficulty with this approach is that, by failing to comply with a legislative requirement, it would appear that I would lose jurisdiction. However, after careful consideration, I do not believe that it is the case. In my opinion, in the circumstances, the word "shall" in subsection (7) should not be interpreted as being mandatory.
[8] In McCain Foods Ltd. v. Canada2, the Federal Court of Appeal considered the mandatory/directory doctrine. Essentially, the Court applied the rule developed in Montreal Street Railway Co. v. Normandin3 where it was decided that when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only.
[9] Although in the present case, it is not by neglect but by mere impossibility that the Order is not granted within the time limit, I am satisfied that the doctrine applies and that subsection (7) is merely directory.
[10] There is no doubt that there is a public duty imposed by the Act and that the person(s) who come under the jurisdiction of the Immigration Act have no control over the process and would be seriously disadvantaged if this Order would be declared null and void. At the same time, I find no public interest served in doing so and it would not promote the main object of the Legislature.
[11] For these reasons, I have issued the attached order.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
November 6, 2000
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1 R.S.C. 1985, c. I-2.
2 McCain Foods Ltd. v. Canada, [1993] 1 C.F. 583.
3 [1917] A.C. 170 (P.C.).
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