Date: 19981210
Docket: T-1207-98
PRESENT: Peter A.K. Giles, Esquire
| Associate Senior Prothonotary |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SAU FUN LAU
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] By the motion before me, the respondent sought to have the application dismissed because the applicant has not filed any affidavit as allegedly required by rule 306.
[2] Rule 306 read as follow:
306. Within 30 days after issuance of a notice of application, an applicant shall serve and file its supporting affidavits and documentary exhibits.
306. Dans les 30 jours suivant la délivrance de l'avis de demande, le demandeur dépose et signifie les affidavits et les pièces documentaires qu'il entend utiliser à l'appui de la demande.
[3] The respondent argues that the English version makes mandatory the filing of an affidavit. He points out that unless an affidavit is filed by the applicant there is no provision for the respondent to file an affidavit which by rule 307 must be filed within the 30 days after the filing of the applicant's affidavit. Thus it would appear that if the applicant fails to file an affidavit, the procedure comes to a halt. Save for a possible dismissal under rule 168.
[4] The applicant notes that from the French version of the rule that it appears that it is only necessary to file the affidavits the applicant intends to use. If, as here, the applicant does not wish to rely on affidavits but merely seeks a rehearing on the material before the Citizenship Judge is it necessary that some form of affidavit be filed? However, the same problem arises when the respondent seeks a way to file affidavits because of rule 307 requiring that to be done in the 30 days after the applicant's affidavits are served.
[5] I note that rule 308 deals with the problem if the respondent files no affidavit:
308. Cross-examination on affidavits must be completed by all parties within 20 days after the filing of the respondent's affidavits or the expiration of the time for going so, whichever is earlier.
[emphasis added]
308. Toute partie qui désire contre-interroger l'auteur d'un affidavit le fait dans les 20 jours suivant le dépôt des affidavits du défendeur ou dans les 20 jours suivant l'expiration du délai prévu à cette fin, selon celui de ces délais qui est antérieur à l'autre.
That rule, like rule 307, makes no reference to a failure of the applicant to file an affidavit.
[6] Possibly the rules contemplate that the applicant is required to file an affidavit even if all the applicant wishes is a reconsideration of the material before the Tribunal who's decision is impugned. This matter however is not a judicial review as such but this is an appeal of a Citizenship Judge's decision. In my view, in the case where the applicant does not seek to rely on affidavit evidence but on the record before the Citizenship Judge and to have the matter reheard without filing additional evidence the Rules are silent on the matter. I therefore analogize to rule 308 to conclude that the respondent had 30 days from the end of the time limited for filing of the applicant's affidavit within which to file his own affidavits. Having so decided I extend to the time for filing the respondent's affidavits to 30 days from the date of my order and adjust at all other times to flow therefrom as if that filing were at the correct time.
ORDER
IT IS HEREBY ORDERED THAT:
| 1) The respondent shall have 30 days from December 7, 1998 to file his affidavits; |
| 2) The time for cross-examination thereon shall expire 20 days after such filing (there is no need to say "or from the expiration of the time for doing so" because there will be no other affidavit to cross-examine upon); and |
| 3) The motion is otherwise dismissed. |
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
December 10, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1207-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
| SAU FUN LAU |
DATE OF HEARING: MONDAY, DECEMBER 7, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND ORDER BY: GILES A.S.P.
DATED: THURSDAY, DECEMBER 10, 1998
APPEARANCES: Ms. Leena Jaakkimainen
For the Applicant
Mr. Stephen Green
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
Green & Spiegel
| Barristers & Solicitors |
| Box 114 |
| Standard Life Centre |
| 2200-121 King Street West |
| Toronto, Ontario |
| M5H 3T9 |
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981210
Docket: T-1207-98
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
| SAU FUN LAU |
Respondent
REASONS FOR ORDER
| AND ORDER |