Date: 20080211
Docket: IMM-1646-07
Citation: 2008
FC 174
Ottawa, Ontario, February 11, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MARIA
THERESA PHILLIP
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Respondent has moved for reconsideration of the Court’s partial cost award of
$5,000.00 out of a claimed $13,000.00. The Respondent claims that it has new
facts which should alter the Court’s conclusion that the Respondent’s conduct
“may not be bad faith, it has a certain air that causes one concern”. The new
facts consist of an affidavit from another of the Respondent’s counsel in an
earlier proceeding filed presumably to show that the Court’s concern, for a
certain “taint” surrounding the manner of treating the Applicant, was
unjustified.
[2]
Rule
399(2) is quite specific in empowering a variance of a court order – that a
matter “arose or was discovered subsequent to the making of the order”. The
Respondent’s materials do not meet this threshold.
[3]
The issue
of the Respondent’s conduct, the inducing to withdraw an application for a stay
on condition of an expedited H&C decision and the virtually immediate
negative H&C decision after the withdrawal of the stay motion, was raised
by the Applicant in the judicial review.
[4]
The Court
accorded the Respondent an opportunity, post hearing, to address the issue of
costs – which it did.
[5]
The
evidence now submitted by the Respondent attempting to explain away its conduct
is evidence of what had previously transpired and was available to the
Respondent at the time of its cost submission. In this regard, the Respondent
had notice of the legal issue and the facts in issue, and yet did not put
forward the “new” evidence even though it was readily available.
[6]
Rule
399(2) is not a vehicle for appeal or an opportunity to repair a deficient
submission. Nor does the evidence even alleviate the Court’s concern. The
Respondent knew that it was prepared to defer removal but did not advise the
Applicant until a stay application was filed to stop the fast approaching
removal date. The new evidence reinforces the general concern for conduct
because it establishes that the deferral decision had essentially been made
before the stay application – but it had not been communicated to the
Applicant.
[7]
Therefore,
this motion is dismissed. As this motion is unjustified and compounds the
Court’s earlier conclusion, the Applicant shall have its costs of the motion in
the amount of $1,000.00.
ORDER
THIS COURT ORDERS that this motion is dismissed with
costs to the Applicant in the amount of $1,000.00.
“Michael
L. Phelan”
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