Date: 20021115
Docket: T-919-02
Neutral citation: 2002 FCT 1185
Ottawa, Ontario, this 15th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
GIDEON MC.GUIRE AUGIER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an appeal from the order of the Prothonotary, dated August 19, 2002, striking out the applicant's notice of application, filed June 17, 2002.
[2] The applicant seeks an order varying the Prothonotary's order to allow the notice of application of the applicant, dated June 17, 2002, to proceed.
[3] The respondent did not appear at the hearing of the motion.
Background
[4] The applicant applied to become a citizen of Canada. By a decision of the Citizenship Judge, dated November 8, 2001, his application was denied.
[5] The respondent initially claimed that the decision was sent to the applicant by registered mail and that he received it by November 16, 2001.
[6] The applicant claims that the decision was sent to him by "XPRESSPOST" mail and that he did not receive it until June 5, 2002.
[7] Initially, the respondent stated that the applicant received the decision of the Citizenship Judge by November 16, 2001, by virtue of Exhibit "C" to the affidavit of Jillian Schneider, sworn to July 11, 2002. Exhibit "C" shows the date Canada Post picked up the item from the sender.
[8] The respondent then obtained from Canada Post Exhibit "D" to the affidavit of Jillian Schneider, sworn to July 23, 2002. Exhibit "D" is the scanned signature of the recipient of the item described in Exhibit "C", referred to in paragraph 7 above. The signature is illegible, but the "Printed Full Name" is "Glen Augier".
[9] The applicant and his mother both swore that the applicant received the decision in June 2002.
[10] The envelope containing the decision of the Citizenship Judge was addressed to "Gideon McGuire Augier".
Issue
[11] Should the appeal of the Prothonotary's decision be allowed?
Analysis and Decision
[12] The law followed by this Court when reviewing or deciding appeals from a discretionary decision of a Prothonotary is clearly set out by McGuigan J.A. in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.) at pages 462 to 463:
I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
And at pages 464 - 465:
In Canada v. "Jala Godavari" (The) (1991), 40 C.P.R. (3d) 127 (F.C.A.), this Court in an obiter dictum stated the rule the other way around, seeking to emphasize the necessity for the exercise of the Judge's discretion de novo, in contradistinction to the view that was at that time gaining acceptance in the Trial Division that the prothonotary's discretion should be followed unless he had committed error of law. Jala Godavari should not, I think, be read as meaning that the prothonotary's discretion should never be respected, but rather that it is subject to an overriding discretion by a judge where the question involved is vital to the final issue of the case. (Error of law is, of course, always a reason for intervention by a judge, and is not in any way in controversy).
Now, in the case at bar, what kind of interlocutory order was in question? The appellant urged this Court to follow Stoicevski, but was unable to explain in argument why the prothonotary's decision here was not on a question vital to the final issue of the case. The formulations both of Lord Wright and Lacourcière J.A. underline the contrast between "routine matters of pleading" (Lord Wright) and "a routine amendment to a pleading" (Lacourciere J.A.) [italics added] and questions vital to the final issue of the case, i.e., to its final resolution.
The question before the prothonotary in the case at bar can be considered interlocutory only because the prothonotary decided it in favour of the appellant. If he had decided it for the respondent, it would itself have been a final decision of the case: A-G of Canada v. S.F. Enterprises Inc. et al. (1990), 90 DTC 6195 (F.C.A.) at pages 6197-6198; Ainsworth v. Bickersteth et al., [1947] O.R. 525 (C.A.). It seems to me that a decision which can thus be either interlocutory or final depending on how it is decided, even if interlocutory because of the result, must nevertheless be considered vital to the final resolution of the case. Another way of putting the matter would be to say that for the test as to relevance to the final issue of the case, the issue to be decided should be looked to before the question is answered by the prothonotary, whereas that as to whether it is interlocutory or final (which is purely a pro forma matter) should be put after the prothonotary's decision. Any other approach, it seems to me, would reduce the more substantial question of "vital to the issue of the case" to the merely procedural issue of interlocutory or final, and preserve all interlocutory rulings from attack (except in relation to errors of law).
[13] The Prothonotary in this motion was asked to grant an order striking out the applicant's notice of application. This was an issue vital to the final issue of the case. I must therefore exercise my discretion de novo.
[14] The Prothonotary correctly identified the crucial issue to be determined as to whether or not the applicant's application for judicial review was brought on a timely basis. If the decision was served on the applicant on November 21, 2001, the application is not timely as a notice of appeal of the Citizenship Judge's decision must be filed within 60 days after the day on which the notice was mailed or otherwise given.
[15] The Prothonotary states in his decision that there was no dispute as to whether the decision was sent to the applicant by registered mail. I have reviewed the material filed by the parties and I cannot agree with the Prothonotary on this point. The evidence establishes that the decision was sent in an envelope with the word "XPRESSPOST" on the envelope. As well, the words "Registered Mail" were written on the envelope. Does this mean that registered mail is sent in an "XPRESSPOST" envelope with "Registered Mail" written on the envelope? There was no evidence submitted on this point. As a result, I am unable to tell whether or not the decision was sent by registered mail to the applicant.
[16] In my view, it is important that when service is allowed by registered mail, the Court must be able to find that the mailing was by registered mail. From the available evidence, I am not able to make this finding. I have perused the affidavits of Jillian Schneider and there is no statement that the letter was sent as registered mail other than in paragraph 3 of her July 11, 2002 affidavit and there is no indication of the source of her information.
[17] I am of the opinion that the Prothonotary erred in finding that the notice and decision was sent by registered mail. As a result, the earliest date for service of the Citizenship Judge's decision according to the remaining evidence would be June 5, 2002. Consequently, the application for judicial review was filed within the time limits and it was an error to strike out the applicant's notice of application.
[18] The appeal of the applicant is allowed.
ORDER
[19] IT IS ORDERED that the applicant's motion (appeal) is allowed and the decision of the Prothonotary to strike out the applicant's notice of application is set aside.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
November 15, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-919-02
STYLE OF CAUSE: GIDEON MC.GUIRE AUGIER
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, September 9, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, November 15, 2002
APPEARANCES:
Self-Represented
FOR APPLICANT
No Appearance
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Gideon Mc.Guire Augier
271 Carson Drive
Hamilton, Ontario
L8T 2X8
FOR APPLICANT (Self-Represented)
Department of Justice
Suite 3400, Box 36, The Exchange Tower
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021115
Docket: T-919-02
BETWEEN:
GIDEON MC.GUIRE AUGIER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER