Date: 19991126
Docket: IMM-358-95
BETWEEN:
GULSHAN KHAKOO
and SAMEER KHAKOO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1] On November 22, 1999, I dismissed the Applicants" motion for an order requiring the Respondent to show cause why she should not be held in contempt of the order of Mr. Justice Gibson issued on November 15, 1995. The facts are set out in the affidavits filed by the parties and summarized in the written submissions of the Respondent.
I - Background
[2] The Applicant, Gulshan Kakhoo, applied for immigrant visas in July 1994 under the Family Class category. Ms. Kakhoo"s application, which included her son, Sameer, was sponsored by her daughter. On January 6, 1995, the Applicants" application was refused. Judicial review proceedings were instituted in February 1995.
[3] In August 1995, the Applicant"s daughter also appealed the same decision of January 6, 1995 to the Appeal Division of the Immigration and Refugee Board ("IRB") pursuant to s. 77 of the Immigration Act .
[4] On November 15, 1995, Gibson J. allowed the Applicants" judicial review application and referred the matter back for reconsideration and redetermination. Following certification of two questions, an appeal was filed by the Respondent. The Respondent"s appeal was ultimately dismissed for delay on December 17, 1997.
[5] The Applicants filed a motion for contempt against Mr. Howard Martin Spunt in July 1998 because of his failure to communicate and because of the delay in processing the Applicants" application. However, the motion was withdrawn immediately when it was discovered that an interview had been scheduled for August 1998. Mr. Spunt agreed to waive the requirement for a re-interview. The evidence as to what transpired subsequently is scant, but it appears that Ms. Kakhoo was required to undergo a number of medical examinations by the departmental Medical Unit over a lengthy period of time.
[6] In the interim, the appeal launched by the Applicant"s daughter was before the Appeal Division of the IRB until May 1999. By letter dated June 18, 1999, the Applicants were advised that the application for immigrant visas was refused on the grounds of medical inadmissibility. The Applicant, Gulshan Kakhoo, was subsequently unsuccessful in obtaining an extension of time to commence a judicial review proceeding of the refusal.
II - The nature of contempt proceedings
[7] 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 - Submission of the parties
[8] The Applicants submit that the Respondent either disobeyed the order of Gibson J. 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 specific allegations raised by the Applicants are abuse of process, processing delay, deceit, breach of procedure and bad faith.
[9] The Respondent responds that the Applicants have failed to establish prima facie evidence of contempt. There is no evidence that the Respondent ignored the order in question. Although there was a substantial delay in rendering a decision, this did not amount to contempt.
IV - Analysis
[10] Serious allegations have been raised against Mr. Spunt by the Applicants. 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.
[11] On the basis of the affidavits filed and the submissions of counsel, I conclude that the Applicants have 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.
[12] The Applicants have 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). As such, the motion must be dismissed as against her.
[13] As for the allegations of contempt against Mr. Spunt, the Applicants allege deceit, procedural unfairness and bad faith. The Applicants would also wish the Court to draw negative inferences from the substantial delay in having the applicants" application for landing redetermined.
[14] On the question of delay, Mr. Spunt did not become involved until December 1997 when the Respondent"s appeal was dismissed. The subsequent delay to July 8, 1998 has already been the subject of an earlier motion withdrawn by the Applicants. It would therefore be inappropriate to revisit that period of delay. As for the balance of the period, the Applicants concede the following in their written submissions:
| There is also the period between 8 July 1998, when processing resumed, and 18 June 1999, when Mr. Spunt refused the immigrant-visa. To be sure, during that time the Medical Unit was ordering Mrs. Kakhoo to under (sic) one medical examination after the other, which was beyond Mr. Spunt"s control but, the medical unit is, after all, the respondent"s agent. |
[15] As such, there is no evidence that Mr. Spunt intentionally delayed redetermination of the Applicants" application.
[16] At the time the present motion was brought, the Respondent had complied with order of Gibson J. The allegations of deceit and procedural unfairness could have been grounds for judicial review. The Court cannot ignore the fact that the present contempt proceedings were instituted only after the Applicant, Gulshan Kakhoo, failed to obtain an extension of time to bring an application for judicial review. In my view, it is an abuse of process to resort to contempt proceedings to collaterally attack a decision which has not been successfully challenged.
[17] The Applicants allege that Mr. Spunt has made negative decisions and harassed their counsel in order to drive counsel out of business. There is not one scintilla of evidence to support this allegation. The mere fact that Mr. Spunt asked that counsel"s behaviour be censured is not evidence of bias on his part. As was stated by Madam Justice Southin of the British Columbia Court of Appeal in Middelkamp v. Fraser Valley Real Estate Board (1993) 83 B.C.L.R (2d) 257:
| Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge"s mind a lack of professionalism. |
V - Conclusion
[18] 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.
[19] In light of the substantial delay in processing the Applicants" application for landing, I have exercised my discretion by refusing costs to the Respondent.
ORDER
[20] Consequently, the motion was dismissed, without costs.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
November 26, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: GULSHAN KHAKOO |
Applicants
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: MONDAY, NOVEMBER 22, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: FRIDAY, NOVEMBER 26, 1999
| APPEARANCES: Mr. Timothy E. Leahy |
For the Applicants
Ms. A. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD: Timothy E. Leahy, Esq.
| 5075 Yonge Street, Suite 408 |
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date:19991126
Docket: IMM-358-95
Between:
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
AND ORDER
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