Docket:
A-170-13
Citation:
2013 FCA 281
CORAM:
EVANS
J.A.
STRATAS
J.A.
WEBB
J.A.
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BETWEEN:
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LUDLOW ANTHONY FREEMAN
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Appellant
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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 JUDGMENT OF THE COURT
(Delivered from the
Bench at Toronto, Ontario, on December 3, 2013).
STRATAS J.A.
[1]
Mr. Freeman appeals from the order dated April
29, 2013 of the Federal Court (per Justice Hughes) in file T-888-12. The
Federal Court dismissed Mr. Freeman’s motion to reinstate his application for
judicial review. Earlier, his application for judicial review had been
discontinued as a result of the filing of a notice of discontinuance.
[2]
Before the Federal Court was an affidavit sworn
by Mr. Freeman. He deposed that his former lawyer had filed the notice of
discontinuance without his authorization. In his affidavit, he also included
certain hearsay statements of his former counsel.
[3]
Also before the Federal Court was a letter from Mr.
Freeman’s former counsel disagreeing with Mr. Freeman’s account of the events,
asserting that Mr. Freeman consented to the filing of the notice of
discontinuance. The former counsel’s letter was part of an exhibit to another
affidavit Mr. Freeman placed before the Court and, thus, was also part of the
record. Mr. Freeman’s written representations before the Federal Court did not
place any qualifications on the admissibility of any of this evidence, all of
which he filed.
[4]
Finally, as the Federal Court noted, a notice of
discontinuance filed by counsel is presumed to have been filed under
instructions from his or her client.
[5]
Based on this factual matrix, the Federal Court
held that the discontinuance remained effective and so the application for
judicial review could not be reinstated.
[6]
The Federal Court’s decision, discretionary and
fact-based in nature, is entitled to deference. In order to interfere, this
Court must find that the Federal Court proceeded on a wrong principle of law or
serious misapprehension of the facts amounting to palpable and overriding error:
Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[7]
In our view, Mr. Freeman has not established
grounds for this Court to interfere with the Federal Court’s order. He submits
that the Federal Court relied upon inadmissible, unsworn evidence but, as has
been mentioned above, the evidence was placed under affidavit and no objection
or qualification to it was raised in that Court.
[8]
Mr. Freeman submits that the Federal Court
misapprehended the evidence and wrongly concluded that his physical
circumstances “may have changed,” when in fact they have changed significantly.
We do not view this as an error which would have affected the Federal Court’s
exercise of discretion. Given that Mr. Freeman might make a new application for
citizenship and given that it did not have evidence before it from a medical
professional concerning Mr. Freeman’s physical circumstances, the Federal Court
may have been reluctant to make a definitive ruling on the issue of his
physical circumstances, preferring instead to qualify the matter.
[9]
Mr. Freeman also submits that the Federal Court
wrongly found that he had made no complaint against his former counsel when the
evidence is clear that he had. If this was an error, it is not overriding – i.e.,
it does not vitiate the overall finding that the discontinuance was effective.
Whether or not a complaint to the Law Society had been made, the Federal Court
was simply not persuaded that the evidence filed before it rebutted the
presumption that the notice of discontinuance was filed with the client’s
instructions. In accordance with Housen, it is not for this Court to
reweigh the evidence and come to a different conclusion. In any event, what the
Federal Court actually stated was that no complaint had been made and
determined [my emphasis]. Indeed, Mr. Freeman’s complaint had not been
determined when the Federal Court made its order. Therefore, in this regard,
the Federal Court may not have erred at all.
[10]
We wish to point out that neither this Court nor
the Federal Court has ruled on the issue whether Mr. Freeman’s former counsel
filed the notice of discontinuance with actual instructions. Based on his view
of the matter, Mr. Freeman remains free to pursue whatever recourses are
available to him.
[11]
Therefore, we shall dismiss the appeal. In the
circumstances, we shall order no costs.
"David Stratas"
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