Date: 19991126
Docket: IMM-1024-98
BETWEEN:
KANGGUAN WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1] On November 22, 1999, I dismissed the Applicant"s motion for an order requiring the Respondent to show cause why she should not be held in contempt of the order of Mr. Justice Evans issued on April 16, 1999. The following are my written reasons.
I - Background
[2] The Applicant produced the affidavit of Priscilla Lee in support of his motion. The Respondent responded by filing the affidavit of Marissa Beata Bielski. The facts recited below are for the most part uncontested.
[3] On April 14, 1997, the Applicant applied for permanent residence in Canada. Prior to his arrival in the United States in February 1990, the Applicant had resided his entire life in Fujian, China.
[4] On February 3, 1998, a visa officer conducted an interview of the Applicant in the Mandarin language with the assistance of a translator of his choosing. At the time, no concern was raised with respect to interpretation, even though the Applicant"s dialect was Fuzhou.
[5] The visa officer refused the application for permanent residence and the Applicant subsequently sought judicial review of the negative decision. The question of language or interpretation was not raised as one of the grounds for review.
[6] On April 16, 1999, Evans J. granted the application and issued an Order in the following words:
| The Applicant"s visa application is remitted to be determined by a different visa officer. |
[7] On May 22, 1999, a letter was sent to the Applicant requesting that he attend an interview at the Canadian Consulate in Detroit on June 23, 1999 at 9:30 a.m. The convocation letter specified that if the Applicant required a translator, he would be required to retain one from one of three pre-approved agencies. An instruction sheet attached to the letter stated in bold letters that "all interpreter expenses and arrangements are YOUR responsibility."
[8] It appears that counsel for the Applicant encountered some difficulties in retaining a Fuzhou interpreter from the designated agencies. Consequently, he sent an e-mail on June 16, 1999 to Howard Spunt, Consul and Immigration Program Manager with the Canadian Consulate General in Detroit, requesting permission to allow an independent Fuzhou-speaking interpreter to attend the interview. Counsel also copied Mr. Spunt with his e-mail enquiry to the Chinese Students and Scholars Association at the University of Michigan which reads in part as follows:
| The program manager at the Consulate has issued a Diktat compelling all applicants to obtain their interpreter from one of three interpreting agencies, all of which I have contacted. One said flatly that they do not have anyone who can speak Fuzhou, and the other two say that they will be looking for someone, which is to say, they do not have anyone in their stable, either. |
| If you would be interested in acting as an interpreter, please contact me, and I will petition the program manager for his imprimatur. |
[9] The Applicant"s request was refused by Mr. Spunt by letter dated June 21, 1999. The reason given was that only interpreters from the three approved agencies were allowed, that Mandarin interpreters were available from these agencies and that, to Mr. Spunt"s knowledge, the Applicant was sufficiently proficient in Mandarin.
[10] Counsel for the Applicant immediately wrote back to Mr. Spunt urging him to reconsider his decision. He left for Detroit however before receiving a response. Mr. Spunt faxed the following reply on June 22, 1999:
| My message to you 21 June 1999 is self-explanatory. If Mr. Wang does not wish to proceed along those lines, he may (at no charge) wish to have his application assessed at another visa office. |
[11] On June 23, 1999, the Applicant, his counsel and the independent interpreter arrived for the interview. After waiting for approximately three hours in a waiting room which had an insufficient number of chairs to accommodate everyone, they were informed that the interview would not take place because the interpreter was not pre-approved or associated with one of the listed agencies.
[12] What followed next is reproduced from the affidavit of Priscilla Lee filed in support of the Applicant"s motion:
| 20. Mr. Leahy told me, and I do verily believe, that, as a consequence of what occurred, Mr. Wang accused him of having intentionally deceived him by having him fly to Michigan, lose two days work, pay one interpreter to assist Mr. Leahy in preparing him for the aborted interview and another to interpret at the interview and he refused to reimburse Mr. Leahy the cost of his trip or pay Dr. Chen his US$150 fee, which Mr. Leahy. (sic) |
| 21. Mr. Leahy had told me, and I do verily believe, that, as a result of an Access to Information Request, made after he had discovered that the respondent was maintaining a file on him, he learned in October 1999 that Mr. Spunt had urged Ottawa to seek a "durable solution" for Mr. Leahy"s failure to kow-tow to his officers and him vide Exhibit "E. (sic) |
| 22. Mr. Leahy filed the Access Request in March after Law Society of Upper Canada (sic) had ordered him in February to respond promptly to the respondent"s complaint against him. Mr. Leahy has told me, and I do verily believe, that the respondent ignored the Law Society"s offer of mediation and has failed to provide it with material it has requested from it. |
| 23. Within a week of having reviewed the Access information, from which forty pages were fully excluded and eleven partially, Mr. Leahy wrote Mr. Spunt and his entire staff, asking them to provide, if they can, first-hand collaboration of the charges Mr. Spunt has made against him and gave them until November 18th to reply, after which they shall be deemed to do (sic) be unable to substantiate the charges; vide Exhibits"F" and "G". To date no one has replied. |
[13] The following additional information was provided by the Respondent in response. On August 20, 1999, a second convocation letter was sent to the Applicant, in care of his counsel Mr. Leahy, to attend an interview on October 25, 1999. An interview took place on the appointed date before Kim Brady, a visa officer. The Applicant attended with an interpreter from one of the Consulate"s approved agencies and the interview was conducted in Mandarin. At the conclusion of the interview, the Applicant was advised that further time would be required to assess the application. On November 17, 1999, a positive selection decision was made.
II - The nature of contempt proceedings
[14] In Olympia Interiors Ltd. v. Canada, ©1997ª 2 C.T.C. 70 (Fed. T.D), MacKay J. provides a useful summary of the nature of contempt of court proceedings:
| Anyone is guilty of contempt of court who disobeys any process or order of the Court or a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court. For any such claim there must be activity alleged which clearly appears to be contrary in some specific manner to this Court's responsibility for the administration of justice. |
| Contempt of court is a most serious process. Proceedings in relation to contempt are quasi-criminal in the sense that if the serious penalties of a fine or imprisonment are to be imposed, the person ultimately found guilty of contempt must have had fair notice of the facts on which he or she is charged and must have been found beyond a reasonable doubt to have knowingly committed the offence. A definition of the offence will usually be with reference to the failure to comply with a particular order of the court or of a judge; otherwise the particular offence may be difficult to establish. |
III - Submissions of the parties
[15] The Applicant submits that the evidence adduced before me establishes that Mr. Spunt either disobeyed the said order or acted in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court. The grounds for the motion are set out in the Applicant"s notice of motion and the written submissions filed on his behalf. The grounds are summarized by the Applicant under four headings: physical and mental torture, imposition of the language to be used, cancellation of interview and bad faith.
[16] The Applicant submits that Mr. Spunt inflicted physical and metal distress by requiring him to stand and worry for nearly three hours. He also alleges that Mr. Spunt manifested contempt by dictating the language the Applicant had to use for his interview. Further evidence of contempt can be found in the arbitrary cancellation of the interview by Mr. Spunt. Finally, it was contended that Mr. Spunt"s intention was to turn the Applicant against his counsel and that he was motivated by a desire to put his counsel out of business.
[17] The Respondent submits that the Applicant has failed to establish prima facie evidence of contempt. There is no evidence that the Respondent has failed or refused to redetermine the Applicant"s application for permanent residence. In fact, there was full compliance - a matter which should have been drawn to the Court"s attention by the Applicant. The order of Evans J. did not require the Respondent to provide a Fuzhou interpreter. It was certainly within Mr. Spunt"s prerogative to require compliance with existing guidelines regarding interpreters. Consequently, any delay in processing the Applicant"s application cannot be ascribed to Mr. Spunt.
IV - Analysis
[18] On April 6, 1999, Evans J. ordered that the Applicant"s application for permanent residence be remitted for re-determination before a different visa officer.
[19] I note that Mr. Spunt was not named as a responding party and that service of the motion record was not effected personally on him even though "serious penalties" could be imposed on a person found guilty of contempt. However, in light of my conclusions below, I need not decide whether proper notice to Mr. Spunt was required in this case.
[20] On the basis of the affidavits filed and the submissions of counsel, I conclude that the Applicant has not made out a prima facie case for the issue of a show cause order directing either the Respondent Minister or Mr. Spunt to answer why he or she should not be sentenced for contempt of this Court.
[21] The Applicant has not established any evidence of knowledge, or inference of knowledge, on the part of the Respondent Minister, a necessary element of contempt of court (Bhatnager v. Canada (Minister of Employment & Immigration), ©1990ª 2 S.C.R. 217). The most compelling fact is that the Applicant"s application was redetermined by a different visa officer as ordered.
[22] The Applicant apparently perceives Mr. Spunt"s refusal to proceed with the interview with an independent interpreter as a reprisal against counsel, but I cannot conclude on the evidence that the decision taken was wrong, let alone vindictive. There is no evidence that the Applicant was treated differently than other applicants requiring interpretation. Nor does the requirement that an applicant make arrangements and pay for an interpreter appear unreasonable in the circumstances.
[23] I recognize that the Applicant, as well as his counsel, experienced frustration in retaining an interpreter of the Fuzhou language. However, the Applicant could have followed-up with representatives the two approved agencies who promised to get back to him. Moreover, the Applicant should not have been surprised that the interview could not take place in the absence of an approved interpreter.
[24] The motion is, in my view, without foundation. There is no evidence that the Respondent Minister or Mr. Spunt committed any act that was in disobedience of an order of this Court, or that constituted any interference with this Court's responsibility for the administration of justice or any impairment of its authority or dignity.
[25] Moreover, I strongly suspect that these proceedings were instituted for a purpose other than to advance the Applicant"s case. The last paragraphs of the affidavit of Priscilla Lee suggest that the person most aggrieved is counsel for the Applicant, and not the Applicant.
ORDER
[26] Consequently, the motion was dismissed with costs against the Applicant, in whose name this motion was brought, in the amount of $500.00. At the conclusion of the hearing, counsel for the applicant requested that a question be certified. The request was denied on the basis that certification was not appropriate in the circumstances.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
November 26, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: KANGGUAN WANG |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: MONDAY, NOVEMBER 22, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER AND
DATED: FRIDAY, NOVEMBER 26, 1999
| APPEARANCES: Mr. Timothy E. Leahy |
| SOLICITORS OF RECORD: Timothy E. Leahy, Esq. |
Barrister & Solicitor
5075 Yonge Street, Suite 408
Toronto, Ontario
M2N 6C6
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 19991126
Docket: IMM-1024-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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