Date: 20100729
Docket: IMM-196-10
Citation: 2010 FC 788
Vancouver, British Columbia, July 29, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
TING-HSIANG TAI, TSAI-HUEI
CHANG,
WEI-HSUAN
TAI, and LIN TAI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
application for judicial review came on for hearing before me in Vancouver. At the outset of the
hearing an issue arose with respect to the fact that counsel for the applicants
was appearing on his own affidavit. After hearing from counsel, I ordered that
the matter be adjourned to allow the applicants to retain new counsel. I
took the question of costs under reserve.
[2]
The
affidavit provided by Lawrence Wong does not merely provide an evidentiary
foundation for uncontested facts or for the admission of documents that were
before the Immigration Appeal Division when it made its decision. Rather, Mr.
Wong has put his litigation strategy before the IAD into issue in support of
his clients’ procedural fairness arguments. It was clearly not appropriate in
these circumstances for counsel to appear on his own affidavit.
[3]
I am
of the view that there are “special reasons” for an award of costs in this case
within the meaning of Rule 22 of the Federal Courts Immigration and
Refugee Protection Rules, SOR/93-22. I am moreover satisfied that
these costs should be paid personally by the solicitor for the applicants.
[4]
Mr.
Wong was put on notice by letter dated May 27, 2010, that counsel for the
respondent objected to his appearing on his own affidavit. No steps were taken
by Mr. Wong at that time to either seek leave of the Court under Rule 82 of the
Federal Courts Rules, SOR/98-106 to appear on his own affidavit, or to
withdraw from the file so that his clients could obtain new legal
representation.
[5]
Counsel
for the respondent renewed her objection to Mr. Wong appearing in this matter
in a second letter, this one dated July 23, 2010. Once again, Mr. Wong took no
steps to resolve this issue in advance of the date set for the hearing of the
application.
[6]
Mr.
Wong was advised that the Court was considering making an award of costs
payable by him personally, and was given the opportunity to be heard. He
did not provide a satisfactory explanation for his conduct in this matter. His
explanation that he originally had an associate working on the file when he put
in his own affidavit in support of his clients’ application does not assist
him, in light of his statement that his associate left his office in April of
2010.
[7]
Moreover,
the fact that the Court does in some cases grant leave to counsel to appear in
his or her own affidavit also does not assist Mr. Wong. Not only was leave not
sought in a timely manner, it is also clear from the jurisprudence of this
Court that leave will not be granted where, as here, the affidavit in
issue deals with substantive matters: see, for example, Sawridge Band v.
Canada, 2002 FCT 254, 112 A.C.W.S. (3d) 623.
[8]
Finally,
the Court does not accept Mr. Wong’s claim that the respondent left him “no way
out” by refusing to allow him to withdraw his affidavit. The respondent’s
refusal was based upon the fact that it was Mr. Wong’s affidavit that had been
the basis for the Court’s grant of leave in this matter. As Mr. Wong himself
conceded, there was indeed a “way out” for him, which was for him to withdraw
from the file and for his clients to retain new counsel.
[9]
The
need for this adjournment is entirely attributable to Mr. Wong’s conduct. The
applicants cannot be expected to be aware of the rules governing the propriety
of counsel appearing on his own affidavit, and should not be liable for the
costs of the adjournment. Consequently, the Court orders that the costs of this
adjournment should be paid personally by Lawrence Wong. These costs are fixed
in the amount of $200.
[10]
In
accordance with the provisions of Rule 404(3) of the Federal Courts Rules,
the Court orders that Mr. Wong deliver a copy of this Order personally to the
applicants.
ORDER
THIS
COURT ORDERS that:
1. This matter
is adjourned to a date to be fixed by the Judicial Administrator;
2. Costs
of the adjournment are fixed at $200, which are to be paid personally by
Lawrence Wong;
3. A copy of
this Order is to be served personally on the applicants by Mr. Wong.
“Anne
Mactavish”
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