Date: 20000515
Docket: IMM-5182-99
BETWEEN:
DUC CUONG DAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant seeks reconsideration of my order of February 11, 2000 dismissing his application for leave to seek judicial review of the decision of the Immigration Appeal Division which confirmed the visa officer"s refusal of his sponsored spousal application for permanent residence. The person on whose behalf permanent residence was being sought is the mother of the applicant"s Canadian child. Both mother and child reside in Vietnam.
[2] The application for leave was disposed of without personal appearance, pursuant to subsection 82.1(4) of the Immigration Act, 1985 R.S.C. c. I-2. As is the usual practice in this Court, the order determining the application for leave was issued without reasons. Also, according to section 82.2 of the Act, no appeal lies from a judgment on an application for leave.
[3] The applicant is self-represented.. He has requested that his motion for reconsideration be decided on the basis of written representations.
[4] Rule 397 provides that a notice of motion to request reconsideration must be made within ten days after the making of the order. The applicant"s motion for reconsideration was not filed within this time period. The prothonotary to whom the applicant"s motion record had been referred by the Registry issued the following direction:
| "Would you please advise Mr. Dan that I have some sympathy with his position, that of filing a motion for reconsideration beyond the ten day time limit and particularly when the Court took five days of that time to get the negative order into the mail to Mr. Dan. However, the only remedy is a motion for an extension of the ten day time limit within which reconsideration might be obtained. |
| On a motion for an extension of time to obtain reconsideration, under Rule 397, Mr. Dan will have to establish: |
| 1. that from the time of receipt of the Certificate of Order he has had an intention to apply for reconsideration. This entails an explanation of the delay. |
| 2. that Mr. Dan has an arguable case to put to the judge in order to get the judge to reconsider; and |
| 3. that there has been no prejudice to the other side as a result of the delay. |
| Such a motion may be made at any regular Monday motions day." |
[5] The applicant immediately filed a motion for extension of the time limit to file his motion for reconsideration. The respondent contested the extension of the time limit and the matter was heard, with the personal appearance of the parties, before the prothonotary who issued the direction.
[6] The prothonotary ordered the extension of time for the service and filing of the motion for reconsideration. The determination of the motion for reconsideration on its merits is now before me as the judge who issued the order dismissing the application for leave.
[7] Rule 397(1) allows a party to request that the Court, as constituted at the time the order was made, to
reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
d"en examiner de nouveau les termes, mais seulement pour l"une ou l"autre des raisons suivantes :
a) l"ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
There is no substantial difference between the wording of this Rule and its predecessor, Rule 337(5) of the former Federal Court Rules, C.R.C. 1978, c. 663.
[8] In this proceeding, as no reasons issued with the order dismissing the application for leave, Rule 397(1)(a) has no application.
[9] The issue then is whether I should reconsider the terms of my order on the ground that a matter that should have been dealt with was overlooked or accidentally omitted. This is the test set out in Rule 397(1)(b).
[10] The prothonotary"s reasons for order are straightforward. First, the prothonotary set out why the applicant"s short delay in filing the motion was fully explained. The prothonotary then considered "the oversight", within the meaning of Rule 397(1)(b ), in this proceeding:
| [3] In examining this aspect, that of an overlooked or accidentally omitted matter, I must keep in mind that a reconsideration is not an opportunity to introduce new evidence or to reargue the case, here on humanitarian and compassionate grounds. Rather there must be special circumstances by which to obtain reconsideration: see for example Vinogradov v. M.E.I. (1994), 77 F.T.R. 296 (F.C.T.D.). Otherwise an applicant must learn to live with the consequences of his or her omissions. |
| [4] Here there is a special circumstance. It is based on the principle that counsel "... must bring all relevant authorities to the attention of the court, whether or not they assist the party for whom he appears.": Halsbury, 4th Edition, revised, at page 324. Further, "... in civil cases a barrister must ensure that the court is informed of all relevant decisions of which he is aware, whether the effect is favourable or unfavourable towards the contention for which the barrister argues; ..." (Ibid page 377). Indeed, it is the obligation of the Court to call to the attention of counsel any authority which has been overlooked: see for example Glebe Sugar Refining Co. v. Trustees of Port and Harbours of Greenock [1921] 2 A.C. 66 (H.L.) at 71 and 78. |
...
| [6] In the absence of any consideration of the interests and welfare of the child by the Immigration and Refugee Board and indeed, in the total absence of any consideration, apparently by anyone, of Khanh Tu"s interests, I therefore referred counsel to Baker v. The Queen [1999] 2 S.C.R. 817. ... That the interests of the Canadian child, Khanh Tu Dan, have been minimalized ought to have been presented by the parties for consideration. Mr. Dan is a lay litigant, who seems to have done a thorough job given his limitations, which limitations include a lack of familiarity with immigration practice, procedure and law. His oversight was unfortunate. However counsel for the Respondent ought to have touched upon the Baker case. [Emphasis added.] |
[11] In Boateng v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 9 (F.C.A.), Mahoney J.A. gave his view of the purpose of the rule governing motions to reconsider: "That rule contemplates oversight on the part of the Court, not a party."
[12] In Chin v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 77, Justice Reed considered the purpose of the motion to reconsider and stated (at paragraph 6): "Rule 337(5) provides a mechanism for the Court to reconsider orders made where the Court commits an oversight. Rule 337(5) does not allow the Court to re-examine the conclusions which it has drawn from the evidence ...".
[13] Similarly, in Vinogradov v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 296, Justice MacKay noted at paragraph 2:
| Rule 337(5) of the Federal Court Rules permits a party to apply within ten (10) days of the pronouncement of judgment or such further time as the Court may allow for reconsideration of the terms of the pronouncement, but only where it does not accord with the reason given or that some matter that should have been dealt with has been overlooked or accidentally omitted. |
[14] More recently, in Meikle v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 820 (QL) (T.D.), Heald D.J echoed the statement of Mahoney J.A. in Boateng when he noted (at paragraph 2): "Additionally, I have the view that Rule 397 contemplates oversight on the part of the Court, and not oversight committed by a party."
[15] Finally, in Archibald v. Canada (1998), 144 F.T.R. 260, Justice Muldoon reviewed the case law concerning the former Rules 337(5) and its successor Rule 397(1), and concluded (at paragraph 8): "Rule 337(5) has been commonly described as the "slip rule". This rule is designed to provide the Court with a means of reconsidering the terms of its pronouncement if the Court, not the parties, has erred in some way." Under Rule 337(5), the word "pronouncement" was used where "order" is found under the current Rule 399.
[16] I concur fully with these consistent rulings concerning the purpose of Rule 397. In my view, the oversight or accidental omission must be in the terms of the order and not in the parties" submissions to the Court prior to the issuance of the order.
[17] The prothonotary, in extending the time limits to file this motion to reconsider, referred to the parties" oversight in failing to refer to the interests of the applicant"s Canadian child and the important decision of the Supreme Court of Canada in Baker . In the words of the prothonotary: "The applicant"s oversight was unfortunate. However, counsel for the Respondent ought to have touched upon the Baker case." As I have suggested earlier, the parties" failure to refer to case law is not a relevant consideration in determining whether there exists an oversight or accidental omission within the meaning of Rule 397(1)(b ). Moreover, in the absence of any reasons accompanying the order dismissing the application for leave, it is difficult to understand how the applicant could establish that the decision in Baker, made public some six months previously, was not considered.
[18] Rule 397 protects the finality of a Court"s order, while allowing for its reconsideration where a matter which should have been dealt with in the order was overlooked or accidentally omitted. The applicant has failed to establish that any such matter was overlooked or accidentally omitted in this proceeding. Accordingly, the motion to reconsider will be dismissed.
[19] The order of the prothonotary extended the time limits to file this motion to reconsider. In so doing, the prothonotary apparently adopted, in the reasons for order, a view concerning the meaning of "oversight" in Rule 397(1)(b ) which differs substantially from mine. I regret any confusion that these different views may cause for the applicant, a lay litigant. There is no inconsistency, however, in the terms of the order merely extending the time limits and the terms of my order dismissing the motion to reconsider on its merits.
[20] In Capelos v. Canada (Minister of Employment and Immigration) (1991), 43 F.T.R. 280, Justice Reed noted that it would be practical and usual for the same judicial officer to decide both the application for the extension of time and the request for reconsideration:
| I have considered whether the judge who initially rendered the decision, of which reconsideration is sought, must also be the judge who decides on an extension of time. Rule 337(5) does not expressly so provide. In my view, it is only a reconsideration of the decision which must be determined by the Court as constituted at the time of the pronouncement; there is no requirement, under the rule, that a determination as to whether or not an extension of time should be granted must be decided by the Court "as constituted at the time of the pronouncement". In most instances, it is probably both practical and usual for the same judge to make both decisions. |
Justice Reed"s statement is particularly applicable where, in an application for leave for judicial review of an immigration or refugee decision, the order is issued without reasons.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
May 15, 2000