Docket: IMM-16571-23
Citation: 2024 FC 1850
Ottawa, Ontario, November 20, 2024
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
OBI EMMANUEL IBEABUCHI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
ORDER AND REASONS
I. Overview
[1] The Applicant, Obi Emmanuel Ibeabuchi, seeks reconsideration of an order dated August 29, 2024 (the “Dismissal Order”
) dismissing his application for leave and judicial review of a negative decision of the Refugee Appeal Division (“RAD”
) due to the Applicant’s failure to file an application record pursuant to Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 (the “FCCIRP Rules”
) and the Court’s Practice Direction and Order (May 9, 2023 amendment) (the “Practice Direction”
). The Applicant brings this motion pursuant to Rules 397(1)(b) and (2) of the Federal Courts Rules, SOR/98-106 (the “FC Rules”
).
[2] The Applicant submits that reconsideration is warranted as his failure to file an application record was due to a clerical error on the part of his counsel.
[3] The Applicant’s submissions are meritless. For the reasons that follow, I dismiss this motion for reconsideration.
II. Background
[4] In December 2023, the Applicant filed an application for leave and judicial review of a negative decision of the RAD.
[5] Pursuant to Rule 10 of the FCCIRP Rules, the Applicant was required to file an application record “within 30 days”
after receiving either the RAD’s written reasons or notice under Rule 9(2)(b) of the FCCIRP Rules. The Applicant did not file an application record by this deadline.
[6] The Practice Direction provides that “[t]he Applicant may, within 30 days of the expiry of the time set out in Rule 10(1), file its record at the Registry of the Court provided that it is accompanied by a Notice of consent to an extension of time.”
The Applicant did not file an application record by this deadline.
[7] On August 29, 2024, the Court rendered the Dismissal Order, dismissing the Applicant’s application for judicial review due his failure to file an application record pursuant to the Practice Guidelines and Rule 10 of the FCCIRP Rules.
[8] The Applicant now moves for reconsideration of the Dismissal Order. In support of this motion, the Applicant brings an affidavit sworn by his counsel.
III. Analysis
[9] The two issues in this motion are whether the Court should reconsider the Dismissal Order pursuant to Rules 397(1)(b) and (2) of the FC Rules.
[10] Rule 397(1)(b) of the FC Rules provides that a ruling may be reconsidered if “a matter that should have been dealt with has been overlooked or accidentally omitted.”
Rule 397(2) states that “[c]lerical mistakes, errors or omissions in an order may at any time be corrected by the Court.”
[11] The Applicant submits that reconsideration is warranted as his failure to file an application record was due to a clerical error on the part of his counsel.
[12] The Applicant is mistaken. The Applicant has not brought any admissible evidence in support of his submissions. Moreover, reconsideration would not be warranted under Rules 397(1)(b) or (2) of the FC Rules even if the facts alleged by the Applicant were accepted by the Court.
A. The Affidavit of the Applicant’s Counsel is Inadmissible
[13] The only evidence the Applicant brings in support of this motion is an affidavit sworn by his counsel, dated September 9, 2024.
[14] This affidavit is not accepted for this motion. Pursuant to Rule 82 of the FC Rules, “a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit”
except with leave of the Court. The Applicant’s counsel did not seek leave.
[15] Thus, Rule 82 is breached and there is “no evidence at all to support [the Applicant’s] submissions”
(Ismael v Canada (Citizenship and Immigration), 2018 FC 1191 at para 14 (“Ismael”
)). This ground alone is sufficient to dismiss the Applicant’s motion.
B. The Applicant Misapprehends Rule 397 of the FC Rules
[16] In any event, I find that the Applicant’s evidence would not assist him on this motion. Even if the facts alleged by the Applicant were true, “[t]he explanation offered for failing to file the [a]pplication [r]ecord within the statutory period…falls far short of compelling reasons to set aside the Order”
(Ismael at para 52).
(1) Reconsideration is Not Warranted Pursuant to Rule 397(1)(b) of the FC Rules
[17] The Applicant submits that a clerical error on the part of his counsel resulted in his failure file an application record. He submits that reconsideration pursuant to Rule 397(1)(b) of the FC Rules is warranted on this basis.
[18] The jurisprudence indicates that this is not the case. As previously determined by this Court, “[t]he test to determine whether a matter that has been accidentally overlooked warrants reconsideration by the Court is a strict one”
(Sanusi v Canada (Citizenship and Immigration), 2020 FC 1086 at para 6). Crucially, “Rule 397 addresses injustice if the Court, not a party, has overlooked or accidentally omitted something”
(Abbud v Canada (Citizenship and Immigration), 2007 FC 223] at para 10 (“Abbud”
) [emphasis added]). A clerical error on the part of the Applicant’s counsel does not justify reconsideration pursuant to Rule 397(1)(b) of the FC Rules.
(2) Reconsideration is Not Warranted Pursuant to Rule 397(2) of the FC Rules
[19] The Applicant submits that Rule 397(2) of the FC Rules grants the Court discretion to ensure justice “where there are clerical errors.”
As the error of his counsel was clerical in nature, he submits that the Dismissal Order should be reconsidered pursuant to Rule 397(2) of the FC Rules.
[20] The Applicant misapprehends the meaning of Rule 397(2). Rule 397(2) of the FC Rules provides that “[c]lerical mistakes, errors or omissions in an order may at any time be corrected by the Court”
[emphasis added]. Like Rule 397(1)(b), Rule 397(2) of the Rules allows for reconsideration of an action of “the Court, not a party”
(Abbud at para 10). The jurisprudence reflects this purpose, with Rule 397(2) decisions addressing the precise wording of orders of the Court (see for example Siddiqui v Canada (Citizenship and Immigration), 2016 FCA 237 at paras 19-20).
[21] Relief under Rule 397(2) is therefore not warranted in this case. The Applicant does not allege that the Dismissal Order contains a clerical mistake, error, or omission, but rather that his counsel made a clerical error. This is not a valid ground for reconsidering a decision pursuant to Rule 397(2) of the FC Rules.
IV. Conclusion
[22] There is no evidentiary basis for the Applicant’s motion. In any event, the Applicant’s submissions are meritless, as Rule 397 does not authorize reconsideration on the basis of a clerical error by the Applicant’s counsel. This motion for reconsideration of the order of this Court dated August 29, 2024 is dismissed.
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