Rivera v. Canada (Minister of Citizenship and Immigration), docket IMM-3332-00

Date: 20001107

Docket: IMM-3332-00

BETWEEN:

          SIOMARA MARISOL TOVAR RIVERA,

         RIGOBERTO JESUS SAMAYOA RIVERA

          and ALDO JOSUE SAMAYOA TOVAR

                                       Applicants

                      - 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 Act^[1] provides that:

[3]                 Subsection (7) provides:

[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. Canada^[2], the Federal Court of Appeal considered the mandatory/directory doctrine. Essentially, the Court applied the rule developed in Montreal Street Railway Co. v. Normandin^[3] 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 7, 2000

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                      IMM-3332-00

STYLE OF CAUSE:                     SIOMARA MARISOL TOVAR RIVERA and OTHERS

                                   AND

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

LEAVE APPLICATION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

REASONS FOR ORDER OF: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER

DATED:                    NOVEMBER 7, 2000

APPEARANCES:

NEIL COHENFOR THE APPLICANT

SUSAN NUCCIFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

NEIL COHENFOR THE APPLICANT

Mr. Morris RosenbergFOR THE RESPONDENT

Deputy Attorney General of Canada