Koud v. Canada (Minister of Citizenship and Immigration), docket IMM-3105-00

                                                                                                                                            Date: 20001108

                                                                                                                               Docket: IMM-3105-00

Between:

SOLANGE IRÈNE KOUD

JEREMY EDDY BOBONGO-KOUD

ANTONY ARISTIDE BOBONGO

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

TREMBLAY-LAMER J.:

[1]         Having regard to the special circumstances surrounding the issuance of this order, I have decided, as an exception, to issue these reasons.

[2]         Subsection 82.1(6) of the Immigration Act^[1] reads as follows:

[3]         Subsection (7) provides:

[4]         I granted leave in this case. However, in view of the lack of availability of a judge to hear the matter on its merits, I am unable to obtain from the Registry a date that falls within the 90-day deadline.

[5]         In the circumstances, two options are possible:

1.          To wait and sign my order when a judge becomes available to hear the matter.

2.          To sign the order and not meet the period provided in subsection (7).

[6]         After careful consideration, I am of the view that I should issue this order at this time. It is extremely regrettable that I am unable to meet the periods provided by the Act but in my opinion it is in the interest of justice not to delay the issuance of the order. Between two evils, it is necessary to choose the lesser. Fairness requires that an applicant know that an application for leave was granted and when it was granted. This principle, in my opinion, supplants the difficulty of setting down within the prescribed periods, which is beyond the control of the judge.

[7]         I am satisfied that the spirit of this provision is that a matter be heard expeditiously as soon as it is materially possible to do so. "Nemo tenetur ad impossibilia."

[8]         The difficulty with this approach is that in failing to fulfil one of the requirements of the Act, it may appear prima facie that I lose jurisdiction.

[9]         However, upon reflection, I do not think this is the case. In my opinion, in the circumstances the word "shall" in the English version of subsection (7) should not be construed as not being mandatory.

[10]       In McCain Foods Ltd. v. Canada,^[2] the Federal Court of Appeal examined the theory of the distinction between what is mandatory and what is directory. Essentially, the Court applied the rule developed in Montreal Street Railway Co. v. Normandin^[3] in which it was held that when the statutory provisions relate to the performance of a public duty, and to hold null and void acts done in neglect of that 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, the provisions must be considered to be merely directory.

[11]       Although in this case it is not through negligence but through impossibility that the time frame cannot be complied with, I am satisfied that the theory applies and that subsection (7) is merely directory.

[12]       There is no doubt that there is a public duty imposed by the legislation, that the persons concerned by this order have no control over the process and that they would be seriously inconvenienced if the order were declared null and void. Furthermore, I find no public interest in doing so, for it would not promote the main object contemplated by Parliament.

[13]       For these reasons, I have issued the order attached hereto.

                 "Danièle Tremblay-Lamer"

                                  Judge

OTTAWA, ONTARIO

November 8, 2000

Certified true translation

Suzanne Gauthier, C. Tr., LL.L.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                  IMM-3105-00

STYLE:                                      SOLANGE IRÈNE KOUD

JEREMY EDDY BOBONGO-KOUD

ANTONY ARISTIDE BOBONGO

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION EXAMINED ON RECORD WITHOUT APPEARANCE OF PARTIES        

REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER

DATED:                                    NOVEMBER 8, 2000

WRITTEN SUBMISSIONS:

ALAIN JOFFE                                                                 FOR THE APPLICANTS

MICHEL PÉPIN                                                               FOR THE RESPONDENT

SOLICITORS OF RECORD:

ALAIN JOFFE                                                                 FOR THE APPLICANTS

MONTRÉAL, QUEBEC

MORRIS ROSENBERG                                                 FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA