Date: 19990812
Docket: T-1912-98
BETWEEN:
SHUI SHU LAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
| [1] The motion before me seeks reconsideration of an order I made dismissing these proceedings after a status review. |
| [2] The notice of status review was sent to the parties" solicitors in the afternoon of April 16, 1999 by facsimile transmission. The notice required the applicant to show cause by May 21, 1999 why the application should not be dismissed for delay. |
| [3] The applicant"s submissions were filed May 13, 1999 with an admission of service endorsed the same day. |
| [4] The respondent"s submissions were filed May 27, 1999 with what purports to be an admission of service endorsed with an indistinct date, at least on the Toronto copy. |
| [5] On the 21st of June, 1999 I concluded the status review by dismissing the proceeding. |
| [6] After the copy of my order on file are two blue carbon copies of memoranda, one of which indicates that a certified copy of my order was sent to applicant"s counsel by registered mail on June 22, 1999. The memoranda also indicate that the order was called out on the same date. |
| [7] On July 20, 1999 the applicant filed a motion record containing a notice of motion dated July 16, 1999 signed by "Nancy Lam for Sheldon M. Robins". The motion record then contains the affidavit of Sheldon M. Robins (I note the written representations are also signed by Nancy Lam although under her signature is typed the name of the applicant and "by his solicitor Sheldon M. Robins". If Nancy Lam is purporting to act as counsel I suggest it should be indicated so that it will be clear that Rule 82 is not being infringed.). |
| [8] The affidavit of Sheldon M. Robins indicates that the signature on the admission of service on the respondent"s representations is not his, and further that he had no knowledge of my order of June 21, 1999 until July 6, 1999. How the purported signature of "S. Robins" got on the admission of service and why an experienced Registry Officer would indicate my order had been called out will have to remain a mystery |
| [9] It is the regular requirement of the Court that post-originating material filed should have first been served. That being the case, someone who is served could, were it urgent to do so, get something by way of reply to the Court before the Court moved on the matter even though a reply was not contemplated in the Rules. For example, the applicant"s reply to the current motion was in the Court on the 4th business day after the respondent"s submissions were served. |
| [10] There is no requirement for service in the status review rules, but the required form 381 indicates that the party required to show cause is required to do so by serving and filing written representations. Why would such service be required if the respondent were not permitted to file responding submissions and presumably having been served should serve in return? |
| [11] Assuming that service was deficient or non-existent, how does the applicant seek a remedy? |
| [12] A motion under Rule 74 to remove a document improperly filed would have no effect on my order. |
| [13] A motion under Rule 397(1)(b), if appropriate, could only be brought within 10 days of the order without leave and this motion was brought neither within 10 days of the order nor within 10 days of the receipt of my order. |
| [14] A motion under Rule 399(2)(b) to be successful would require not only an insufficiency of notice, but also a showing of a prima facia case why the order should not have been made. |
| [15] Rule 148 deals with the situation where a party does not have notice of a served document and provides the Court may set aside the consequences of default. Was my order dismissing the application the consequence of a default? The word default has been accorded a wide range of meanings and I take it to mean failure and refer to the failure to obtain notice of the document at the time of service. The consequences of that failure were that the applicant did not have the opportunity to try and file the reply submission before the Court dealt with the status review. |
| [16] In the circumstances, I conclude that justice requires that I set aside my order dismissing this application, and direct that the Registry may file any reply memorandum before 4:00 p.m. on August 19, 1999. As well as Registered Mail, a copy of this order may be sent by telefax to the applicant"s solicitor at the address and number shown on the motion record, no address or telephone number of any kind being shown in either official language on the most recent correspondence. |
ORDER
The applicant now having a copy of the respondent"s motion record, that record is deemed properly served.
My order of June 21, 1999, dismissing this action is set aside.
Any reply memorandum replying to the respondent"s status review submissions which is tendered before August 19, 1999 at 4:00 p.m. may be filed.
Service of this order on the applicant"s counsel may be by facsimile transmission as set out in the above reasons.
The Registry is to return this file to me on August 20, 1999 for disposition.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
August 12, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1912-98 |
| STYLE OF CAUSE: SHUI SHU LAI |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: GILES A.S.P. |
DATED: THURSDAY, AUGUST 12, 1999
| WRITTEN REPRESENTATIONS BY: Mr. Sheldon R. Robins |
For the Applicant
Ms. Claire A.H. le Riche
For the Respondent
| SOLICITORS OF RECORD: Sheldon R. Robins |
Barrister & Solicitor
2 St. Clair Avenue East
Suite 318
Toronto, Ontario
M4T 2T5
| For the Applicant |
| Morris Rosenberg |
Deputy Attorney General of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
Date: 19990812
Docket: T-1912-98
Between:
| SHUI SHU LAI |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
| AND ORDER |