Date: 19991101
Docket: T-1912-98
BETWEEN:
SHUI SHU LAI
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES P.
| [1] The notice of application herein was filed on October 6th, 1999, at which time the Federal Court Rules, 1998 indicated as they do now that within 30 days after issuance of a notice of application, an applicant shall serve and file its supporting affidavits and documents. Rule 306 is as follows: |
306. Within 30 days after issuance of a notice of application, an applicant shall serve and file its supporting affidavits and documentary exhibits.
306. Dans les 30 jours suivant la délivrance de l'avis de demande, le demandeur dépose et signifie les affidavits et les pièces documentaires qu'il entend utiliser à l'appui de la demande.
[2]However, the applicant filed no affidavits and did nothing until the notice of status review was sent out on April 14th, 1999, to which he replied on May 13th, 1999, stating that the applicant failed to file and serve his supporting affidavits and document exhibits pursuant to Rule 306 of the Rules because at the time, the requirements to file supporting affidavits was uncertain, ambiguous and unresolved. While there is a difference between the English and French versions of the Rule, both plainly indicate that an applicant must file his affidavits within 30 days of the notice of application being issued. I know of no confusion or ambiguity ever having been alleged by anyone but present counsel where the applicant wished to file affidavits as is alleged here. The Rule is plain. He should have so filed within 30 days.
[3]The situation in Canada (Minister of Citizenship & Immigration) v. Sau Fun Lau,[1999], 46 Imm. L.R. (2d), 173., was different. In that case, the applicant was the Minister, who did not wish to rely on any affidavits and so failed to file any. The questions to be decided were:
| 1.Did the Minister have to file an affidavit? |
| 2. If the Minister did not have to file, when could any future step be taken as the times for the remaining steps were measured from the service of the applicant"s affidavit. |
The eventuality of the applicant Minister not filing did not appear to be specifically covered by the Rules. The decision of Mr. Justice Evans on appeal seems to have cured that ambiguity. However, the undisclosed ambiguity in the present situation was not cured as it was not even addressed. In fact, we do not know what it is. The decision of Mr. Justice Evans could be applied to indicate that the applicant not only should have filed any affidavits he wished to file within 30 days, but, should by the 80th day have filed his record if no affidavits were filed by either party. The applicant draws my attention to two other cases in which the proceeding was allowed to continue. In both cases, the applicants" counsel used the same submissions. However, in neither of the other cases was continuation opposed.
| [4] In his reply to the respondent"s opposition, the applicant points out that the |
Registry would not permit filing of further motions after notice of status review had been sent. However, the delay being questioned by me is the delay of six months between the time the notice of application was issued and the notice of status review being sent. By the time the notice of status review was sent, the next step would not have been the filing of an affidavit or even of the record but of a motion seeking an extension of time to file an affidavit or the record. The fact that the applicant"s affidavit and record were "substantively" completed after the status review submissions were filed is irrelevant for the purpose of excusing the delay. Although they are relevant to indicate an intention to proceed. It would have been better if what had been indicated was the preparation of a motion for leave to file the documents. The respondent in her submissions refers to a seven and a half months delay. One and a half months of that delay were after the notice of status review had been sent when nothing in the way of filing could have been done, which would have moved the proceeding forward. I therefore ignore that one and a half months. On a careful analysis of the facts before me, I conclude that no excuse has been tendered for the failure to proceed with this application for six months following the issuance of the notice of application.
ORDER
| [5] The notice of application must therefore be dismissed. |
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
November 1, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SHUI SHU LAI |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
| REASONS FOR ORDER AND ORDER BY: GILES A.S.P. |
| DATED: MONDAY, NOVEMBER 1, 1999 |
WRITTEN SUBMISSIONS BY: Sheldon M. Robins
For the Applicant
Claire A. H. le Riche
For the Respondent
SOLICITORS OF RECORD:
Sheldon M. Robins
Barrister and Solicitor
2 St. Clair Avenue East
Suite 318
Toronto, Ontario
M4T 2T5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date:19991101
Docket: T-1912-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
AND ORDER
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