Docket: T-162-11
Citation: 2011 FC 752
Toronto, Ontario, June 22,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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DR. JULIUS EHIKWE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Respondent has brought a motion in writing for an Order dismissing this
application or, in the alternative, for an extension of time to file its
affidavit evidence. Each of the Respondent and Applicant has filed motion
records including an affidavit from each party. I have read and considered all
of this material.
[2]
In
the past, the Applicant has engaged in a practice of representing persons
before the Immigration and Refugee Board of Canada. That Board made a decision
dated 17 December, 2007 prohibiting the Applicant from practising before the
Board for a period of three years from that date and requiring, before the
Applicant appears before the Board again in any capacity, that he provide proof
to the Board of successful completion of a professional ethics course. The
Applicant in early 2008, filed a Notice of Application with this Court in which
he sought leave to commence a judicial review of that decision. That
application for leave was dismissed by an Order of this Court dated April 7,
2008, due to the failure of the Applicant to file an Application Record.
[3]
In
2010, the Applicant wrote to the Board an undated letter entitled “Appeal for
Recommendation of Refugee Decision Dated 17th December 2007”. There
is no copy of this letter in the record. The Board responded by a letter dated
November 25, 2010 stating that the prohibition would not be lifted. That letter
also provided particulars of further allegations as to misconduct of the Applicant.
[4]
The
Applicant claims, although it is not in his affidavit, that he did not receive
the Board’s letter of November 27, 2010 until January 27, 2011. The Applicant
filed the present application on February 7, 2011. The Respondent filed an
Appearance on February 15, 2011 and filed the present motion materials on March
21, 2011.
[5]
The
present application does not seek leave to bring an application for judicial
review; it states:
APPLICATION
This is an application for
judicial review in respect of the decision of the refugee Member/appeal
Division suspending the appellant from the practice of Immigration Law with the
Refugee board for three years effective from 17th December 2007. The
Refugee appeal Member’s letter was dated 25th November 2010 but was
communicated and received on January 27, 2011. This application is for a
judicial review pursuant to section 18.1(2) and 18.1(3) of the Federal Court
Act against Refugee Panel decision who unlawfully conducted a secret trial and
took a decision convicting the appellant without the due process of law.
THE APPLICANT MAKES AN
APPLICATION FOR;
1.
A
Declaratory Order nullifying the decision of Refugee Panel decision dated 17th
December 2007 which suspended the appellant for three years and requesting for
an ethical course to be completed and certificate to be submitted to the
refugee board by the appellant.
2.
An
Order of Writ of Mandamus directing Immigration and Refugee Board to remove all
internet and Government website publication of the same decision against the
appellant.
3.
A
Declaratory order that special compensation should be paid to the appellant for
this wrong decision published world wide without the due process of law.
4.
The
applicant’s cost of this proceeding.
5.
And
for such relief as to this Honourable Court may deem just.
[6]
Respondent’s
Counsel wrote to the Applicant stating that the application should be filed as
an application for leave and that the present application should be
discontinued. The Applicant has not done so.
[7]
The
Applicant filed his own affidavit in his motion record. That affidavit states
that he attempted to file an application for leave on 3rd February
2011, but that it was rejected by a Registry Officer. He says that the Registry
Officer provided him with the Federal Court Rules and indicated to him that the
decision which he was challenging was under section 159(2) of the Immigration
and Refugee Protection Act (IRPA), SC 2001, c.27, and not section 72(1) of
that Act. As a result, the Applicant filed this application.
[8]
The
decision of the Board dated 17th December, 2007, a portion of which
is identified in the Applicant’s affidavit and attached as Exhibit A, states:
Delegation of IRB Chairperson’s Authority
to make this Decision
[2] The Chairperson of the IRB is
charged with protecting the integrity of the proceedings of the Board.
[3] The Chairperson of the IRB
delegated his authority to the undersigned to consider this matter pursuant to
a letter dated 7 August 20071 (disclosed to Dr. Ehikwe on 27 August
2007).
[4] The delegation letter indicates
that pursuant to section 159(2) of the Immigration and Refugee Protection Act
(IRPA), I have authority to find facts with respect to the practice of Dr.
Julius Ehikwe before the Board, as a result of allegations of charging a fee to
represent claimants before the Refugee Protection Division and an appellant
before the Immigration Appeal Division, in the matters of RPD case file
numbers:
[9]
Section
159(2) of the IRPA permits, with certain exceptions not relevant here, the
Chairperson to delegate any of his or her powers under that Act:
Delegation
159. (2) The Chairperson may delegate any of his or her powers under
this Act to a member of the Board, other than a member of the Immigration
Division, except that
(a) powers conferred under subsection 161(1) may not be delegated;
(b) powers referred to in paragraphs (1)(a) and (i) may be
delegated to the Executive Director of the Board; and
(c) powers in relation to the Immigration Division may only be
delegated to the Director General, directors or members of that Division.
[10]
Section
72(1) of IRPA states that judicial review of any matter must be commenced by
way of an application for leave:
Application for judicial review
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under this
Act is commenced by making an application for leave to the Court.
[11]
The
present application is not directed in any way to the delegation by the
Chairperson under section 159(2) of IRPA to a member of the Board to determine
the matter resulting in the decision of 17th December, 2007. Even if
it did, such a decision would have to be challenged by way of an application
for leave under section 72(1) of IRPA.
[12]
The
relief sought in this present application, as previously set out, seeks several
matters, none of which address or engage the delegation of the Chairperson to
the member deciding the matter of 17th December, 2007. Whatever may
be said as to any purported discussions with a Registry Officer, they are
irrelevant.
[13]
The
present application seeks to “nullify” the decision of 17th
December, 2007. The Applicant has already taken his opportunity to do so. His
application was dismissed. Further, the period of the three-year suspension has
expired; the Applicant may resume practice subject to successful completion of
an ethics course.
[14]
The
present application seeks removal of publication by the Board of the decision
of 17th December, 2007. There is nothing in the record to suggest
the nature and extent, if any, or any publication or that the Applicant has
asked the Board to remove it or what their response was.
[15]
The
application also seeks a Declaratory order as to “special compensation” for
publication of the decision of 17th December, 2007. The purpose of
such a declaration is unclear. Given the decision of the Supreme Court of
Canada in Canada (Attorney General) v Tele-Zone Inc., 2010 SCC 62,
[2010] 3 S.C.R. 585, it is unnecessary for a person to seek judicial review before
commencing an action for damages against the Crown. If the Applicant seeks such
“special compensation”, it should be dealt with by way of an action. In so
stating, I make no finding as to the merits of such an action or the timeliness
in commencing such an action.
[16]
Therefore,
this application will be dismissed, without costs.
ORDER
FOR THE
REASONS PROVIDED:
THIS COURT
ORDERS that:
The
application is dismissed, without costs.
"Roger
T. Hughes"
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