A-413-97
CORAM: MARCEAU J.A.
STONE J.A.
DÉCARY J.A.
B E T W E E N :
| DUMITRU MOLDEVENAU |
Appellant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER OF THE COURT
(Rendered at Ottawa on Wednesday, August 27, 1997)
STONE J.A.
This motion under Rule 324 seeks to quash an appeal from an order of the Trial Division of May 23, 1997 striking out an affidavit filed in support of an application for judicial review of a decision of a visa officer under the Immigration Act rejecting an application for permanent residence, on the ground that at the time the order was made the Trial Division, pursuant to subsection 83(1) of that statute, neither certified that "a serious question of general importance is involved" nor "stated that question" as required by the subsection. In order for the subsection to apply, a judgment of the Trial Division must be made "on the application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder".
It was the view of the Trial Division as disclosed in the order of May 27, 1997 that affidavit in question "does not meet the requirement that such an affidavit be based upon personal knowledge and belief".
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 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.
The motion to quash will be dismissed.
"A.J. STONE"
J.A
"I agree
Louis Marceau"
"I agree
Robert Décary j.a."