Date: 20020715
Docket: IMM-1474-02
Neutral citation: 2002 FCT 791
BETWEEN:
MACH PHUI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] These reasons, pursuant to Rule 399(1)(b), which permit variance or setting aside of the Order which was made "... in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding.", deal with a motion to set aside my order of 10 June 2002. That order struck out a judicial review proceeding.
[2] I struck out the judicial review proceeding by reason of two factors. First, and most important, the Respondent raised a very substantial case that the judicial review proceeding ought to be struck out, notwithstanding the general rule in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (F.C.A.), that judicial review proceedings ought only to be struck out in exceptional circumstances where the application is "so clearly improper as to be bereft of any possibility of success" (page 600). Second, the Applicant did not contest the motion.
[3] The Applicant's counsel now presents evidence that the file had been lost or misplaced by new staff in counsel's office. The reason or excuse for failing to deal with the motion is, in my opinion, substantial and acceptable in the circumstances. We have all misplaced or had files misplaced to our embarrassment. Here I would refer to a relevant principle that a party ought not to be deprived of rights by reason of an error of counsel where the consequences may be rectified without injustice to the other side:
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This principle is that a party must not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such an error without injustice to the opposing party. (Bowen v. City of Montreal, [1979] 1 S.C.R. 511 AT 519)
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The misplacing of a file and resulting order, there being no prejudice to the other side, ought to be rectified so as to cause no permanent harm to either client or counsel. However, there must be some standard to satisfy in seeking to have an order set aside, beyond the reason that the order was through error was not opposed, because the file had been misplaced, for it is in the public interest that there be stability in judgments and orders.
[4] Mr Justice Lutfy, as he was then, dealt with an analogous situation in Taylor Made Golf Co. v. 1110314 Ontario Inc. (1998), 148 F.T.R. 212 (F.C.T.D.) . There default judgment had been taken because the defendant somehow mistook a statement of claim for a demand letter. Mr Justice Lutfy, after finding the error in identity to be a substantial reason for the default judgment, then looked to the defendant to establish a prima facie case why the default order should not have been made, as an element of the test under Rule 399(1). I would note that the third requirement set in Taylor Made was that the application to set aside be made promptly: that is not presently an issue.
[5] In this instance the Respondent takes no position on the present motion, other than to refer to the initial representations as to why the proceeding ought to be struck out. The Respondent's case to strike out is, as I have already said, substantial. However, I also said in my Order of 10 June 2002, that some of the points submitted in written argument by counsel for the Respondent, if opposed, might give rise to controversy.
[6] The prima facie case why the Order ought not to have been made lies in the Applicant's representations as to his basic case and in the test formulated by the Court of Appeal in David Bull, that an application ought not to be struck out, but rather contested in the usual way, unless it is "so clearly improper as to be bereft of any possibility of success". This standard is clearly meant to be a higher standard than that set out, for example, in Hunt v. Carey Canada, [1990] 2 S.C.R. 959, being that it must be plain and obvious that the claim discloses no reasonable cause of action, before it may be struck out.
I believe that Mr. Justice Pinard, in Bonspille v. Mohawk Council of Kanesatake, an as yet unreported 13 June 2002 decision, docket T-824-02, neutral citation 2002 FCT 659, has added a useful gloss to the test from David Bull, that the application, before it is struck out, must be shown to be "doomed due to an incurable defect".
[7] Applying this test and considering the submissions of counsel for the Applicant I am not prepared to let stand the Order to strike out the application without giving counsel for the Applicant the opportunity to fully contest the motion. This is not to say either that the opposition to the motion to strike out will be successful, or that the judicial review itself might be successful. Rather, it is to say that the Applicant ought not, in the circumstances, to be prejudiced by reason of confusion in the office of counsel for the Applicant, but ought now be allowed to put forward a best case to show why the application ought not to be struck out.
[8] The Applicant may have 21 days within which to serve and file a response to the 21 May 2002 motion, with the Respondent then having 14 days within which to serve and file any reply.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
15 July 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020715
Docket: IMM-1474-02
BETWEEN:
MACH PHUI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1474-02
STYLE OF CAUSE: Mach Phui v. MCI
REASONS FOR ORDER BY: Hargrave P.
MOTION DEALT WITH IN WRITING (RULE 369)
WRITTEN REPRESENTATIONS:
Mr. Austin Q. Nguyen FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Austin Q Nguyen FOR APPLICANT
Calgary, Alberta
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General for Canada