Date: 20020916
Docket: IMM-5208-01
Neutral Citation: 2002 FCT 978
Ottawa, Ontario, September16, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
N'CHO SIMEON N'TAKPE
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Following an order dated August 15, 2002, requiring the presence of Claude Whalen, counsel for the applicant, Claude Whalen appeared before the Court on September 3, 2002, at 9:00 a.m.
[2] When asked to explain his conduct in this matter, Claude Whalen confirmed the following facts:
a) He has been working for the last several months at the Immigration and Refugee Board;
b) When he decided to accept this new challenge at the Immigration and Refugee Board, he knew that he could not represent individuals on applications for judicial review of decisions made by the Immigration and Refugee Board;
c) He made arrangements to withdraw from files that he had pending before the Immigration and Refugee Board, but he was unable to do so in this file because he could not find his client;
d) He says that he decided to continue with this file in order to preserve his client's interests;
e) He is aware that he was in a conflict of interest but he has deliberately not withdrawn from the file.
[3] Mr. Whalen could easily have obtained leave to withdraw from the file by explaining that he could no longer find his client, and moreover, that his new duties at the Immigration and Refugee Board put him in a conflict of interest; the latter provided even greater justification for him to cease acting for the applicant.
[4] Mr. Whalen was completely aware of the situation, but he intentionally decided to keep his name on the record and to ask that the Court render its decision on the strength of the file.
[5] It is quite clear that, for Mr. Whalen, the fact of not appearing before the Court does not alter whatsoever the fact that he remains solicitor of record, and that the presumption established by Rule 123 of the Federal Court Rules, 1998 applies. Whether or not he is physically present before the Court has nothing to do with representation in the file, because other rules of the Court, in particular Rules 369 and following, provide that motions may be decided on the basis of written representations.
[6] Moreover, Mr. Whalen did not provide any explanation for his absence on the day of the hearing, August 14, 2002.
[7] I have no hesitation in finding that the explanations provided by Mr. Whalen are completely inadequate in the circumstances.
[8] I also continue to be troubled by the fact that Mr. Whalen seems to consider that his attitude and his behaviour in this matter appear completely reasonable.
[9] In my view, the fact that Mr.Whalen put himself in a conflict of interest and did not take immediate steps to put an end to this conflict of interest constitutes serious professional misconduct.
[10] In addition, Mr. Whalen failed to appear before the Court, in the hope that the matter would resolve itself, which, in my opinion, also constitutes misconduct because he is not acting in the best interests of his clients.
[11] Clearly, I do not have the power to assess Mr. Whalen's competence in refugee law, since he did not appear before me to represent his client. However, the cavalier manner in which he is disregarding the rules of professional conduct and the rules governing conflict of interest fully justify the following conclusions.
[12] Mr. Whalen's behaviour is appalling in the circumstances, and it is completely justified that he be ordered to pay costs fixed in the amount of $1,000 as a result of his conduct in this matter. Moreover, I believe it is important and essential that a copy of this order be sent to the Chairperson of the Immigration and Refugee Board and to the president of the Barreau du Québec for their information.
ORDER
THE COURT ORDERS THAT:
- Claude Whalen be ordered to personally pay costs of $1000 as a result of his conduct in this matter;
- a copy of the order and the reasons as well as a copy of the transcript be sent to the Chairperson of the Immigration and Refugee Board and to the president of the Barreau du Québec.
Pierre Blais
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5208-01
STYLE OF CAUSE: N'CHO SIMEON N'TAKPE v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 3, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: September16, 2002
APPEARANCES:
Claude Whalen FOR THE APPLICANT
Steve Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Claude Whalen FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada