Date: 19990114
Docket: A-413-97
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
DUMITRU MOLDEVEAU
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, Thursday, January 14, 1999
Judgment delivered from the Bench
at Toronto, Ontario on Thursday, January 14, 1999
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date: 19990114
Docket: A-413-97
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
DUMITRU MOLDEVEANU
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Thursday, January 14, 1999)
DÉCARY J.A.:
[1] The issue in this appeal is whether, in an application for judicial review of a visa officer decision, facts which do not appear on the face of the record and are within the personal knowledge of the applicant can be put in evidence not by the applicant but through the affidavit of a third person who has no personal knowledge of these facts.
[2] A brief review of the proceedings is warranted.
[3] On March 13, 1997, a visa officer refused the appellant's application for permanent residence in Canada.
[4] On April 11, 1997, the appellant filed an application for judicial review of the decision of the visa officer. That application was supported only by an affidavit sworn to by a person employed as a paralegal in the law firm representing the appellant.
[5] On May 9, 1997, the respondent made a motion under Rule 324 to strike out the affidavit on the basis that it did not comply with Rule 332(1) of the Federal Court Rules and Rule 12 of the Federal Court Immigration Rules.
[6] On May 23, 1997, the Motions Judge granted the motion and ordered the striking out of the affidavit on the ground that the affidavit did not meet the requirement that it "be based upon personal knowledge and belief".
[7] On June 2, 1997, the appellant filed a Notice of Appeal.
[8] On July 23, 1997, the respondent moved under Rule 324 to quash the Notice of Appeal on the ground that no question having been certified pursuant to section 83 of the Immigration Act, the Court had no jurisdiction to hear the appeal.
[9] On August 27, 1997, a panel of this Court dismissed the motion to quash. The decision was made on the basis of the written representations of the parties and no jurisprudence was referred to in the reasons for judgment. The relevant passages of these reasons read as follows:
| In the present case, if no valid supporting affidavit was filed as was required by Rule 1603(1), the originating notice of motion was itself lacking an important requirement that had to be satisfied in order for it [to] be properly before the Court. All the Court had before it were the bare application and the affidavit, the latter of which it found not to be in compliance with the procedural requirements laid down. In our view, the order of May 27, 1997 was not of the sort contemplated by subsection 83(1). It merely determined that the supporting affidavit was defective. That had the effect of leaving the originating notice of motion in limbo, incapable of being disposed of by the Court. Accordingly, the requirements that a question be certified and stated pursuant to the subsection as preconditions to launching the appeal are inapplicable. |
[10] In her memorandum of fact and law the respondent reiterates her argument to the effect that the Court is without jurisdiction and invites the Court to revisit the decision rendered on August 27, 1997.
[11] It is too late in the day in the present file for the respondent to express her disagreement with the decision rendered on August 27, 1997. We are not and cannot be sitting here in appeal of that decision. The proper avenue for the respondent to take would have been to seek leave to appeal to the Supreme Court of Canada at the appropriate time. The opportunity for this Court to revisit that decision may present itself in another case, although it is unlikely that such unique circumstances can repeat themselves.
[12] Turning now to the merit of the appeal, the appellant raises two distinct arguments.
[13] He first submits that the motions judge erred in not deeming the motion premature. In counsel's view, there is amply authority in this Court for the proposition that it is generally improper to file motions to strike in judicial review proceedings. Even though the motion filed in this case was not technically speaking a motion to strike the judicial review application, the above-mentioned principle undoubtedly applies. That principle, however, which was set out in Pharmacia Inc.. v. Minister of National Health and Welfare1, allows for a margin of manoeuvre where a proceeding "is so clearly improper as to be bereft of any possibility of success" (at p. 600). The motions judge obviously was of the view that the affidavit at its face could not support the proceeding at issue and, as we shall see, we share that view. As we understand it, no request was made to the motions judge at the time the matter was argued for leave to file a new affidavit. We express no opinion as to the effect of new Rule 221 (which has replaced old Rule 419) on the principle set out above.
[14] Counsel then submits that the motions judge erred in his interpretation of the Federal Court Rules and the Federal Court Immigration Rules in force at the time. Counsel relies on Rules 3(2), 4(2) and 12(1) of the Federal Court Immigration Rules and on Rules 332(1) and 1603 of the Federal Court Rules, the latter being found in Part V.1 of these Rules.
[15] This argument has no merit. With respect to Rule 12(1), suffice it to say that it does not apply in cases related to visa officer decisions and that in any event the hearsay evidence which the deponent would give if testifying as a witness would not pass the "necessity" and "reliability" test set out by the Supreme Court of Canada. With respect to the alleged inconsistency between Rule 332(1) and Rule 1603 of the old Federal Court Rules, it seems to us that an affidavit supporting an application for judicial review can at once verify facts relied on by an applicant (Rule 1603) and be based upon personal knowledge (Rule 332(1)). There is, in our view, much wisdom in the practice suggested by the Court in Wang v. Canada (Minister of Employment and Immigration)2, and adopted by the judges of the Trial Division to require the evidence of the intended immigrant himself in matters related to visa officers' decisions "unless the error said to vitiate the decision appears on the face of the record".
[16] The appeal will be dismissed.
"Robert Décary"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-413-97
| STYLE OF CAUSE: DUMITRU MOLDEVEANU |
| Appellant |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Respondent |
DATE OF HEARING: THURSDAY, JANUARY 14, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: DÉCARY J.A.
Delivered at Toronto, Ontario
on Thursday, January 14, 1999
APPEARANCES: Mr. Rocco Galati
| For the Appellant |
Ms. Chery Mitchell
Mr. Jeremiah Eastman
For the Respondent
| SOLICITORS OF RECORD: Galati, Rodrigues, & Associates |
Barrister & Solicitor
637 College Street, Suite 203
Toronto, Ontario
M6G 1B5
| For the Appellant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
| FEDERAL COURT OF APPEAL |
| Date: 19990114 |
| Docket: A-413-97 |
| BETWEEN: |
| DUMITRU MOLDEVEANU |
| Appellant |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Respondent |
| REASONS FOR JUDGMENT |
| OF THE COURT |