IMM-2374-96
B E T W E E N:
KLAVDIA PETROVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review of a decision by Immigration Officer K. Clemmens (the Immigration Officer) dated June 24, 1996. By that decision, the Immigration Officer concluded that the applicant did not meet the three-year qualifying period for eligibility under the Deferred Removal Orders Class (D.R.O.C.). The applicant asks that this decision be quashed and the matter be remitted for reconsideration and redetermination by a different Immigration Officer.
The Decision of the Immigration Officer
The Immigration Officer did not provide any reasons for her decision. The decision itself reads: "This is to advise you that you do not meet the three-year qualifying period. We have calculated that your eligibility period will begin on 22 Sept. 1998. You should re-submit your application after that date." There was also an entry in a document described as a "Client History" document. That entry reads: "**DROC EARLY BIRD - NOT ELIGIBLE TIL AFTER 22SEP98. COMPLETE FILE RETURNED TO CLIENT. KAC - CIC MISS - 25JUN96." The initials "K.A.C." appear to be the initials of the Immigration Officer. The date of September 22nd, 1998, is relevant since it is exactly three years following the date on which this Court dismissed the applicant's application for leave to commence an action for judicial review of the decision by the C.R.D.D. (Sept. 22nd, 1995). Pursuant to the Immigration Regulations, SOR/78-172, s. 2, a person is not eligible to be a member of the Deferred Removal Orders Class within three years of the conclusion of such an application before the Court. It seems clear that the Immigration Officer's decision was based on the circumstance that the aforesaid three year period had not elapsed since this Court's dismissal of the application for leave was dated September 22nd, 1995.
The Facts
The applicant, along with her two daughters and two grandchildren, entered Canada on December 19, 1991, after having fled from Estonia. On February 5, 1993, the C.R.D.D. held that the applicant, the applicant's daughter Jelena Anikina and the applicant's grandson Artur Anikin, were not Convention refugees. This Court refused leave to commence an application for judicial review of that decision on September 22, 1993. A panel of the Immigration and Refugee Board subsequently found that the applicant's other daughter Rufina Sirotinina and the applicant's granddaughter were Convention refugees. The applicant moved to have the C.R.D.D. reopen her refugee claim. This motion was denied on June 28, 1995. An application for leave in respect of that decision was filed with this Court on July 14, 1995. However, the application was never perfected. The applicant's record was not filed with the Court. As a consequence, this Court dismissed the leave application on September 22, 1995.
The issues in this case must be decided on the facts surrounding the application which was denied on June 28, 1995. The applicant says that she did not authorize her lawyer to file the application on her behalf. This statement is supported by the affidavit of Mendel Green, Q.C. her former solicitor. In that affidavit, Mr. Green deposed that he filed the application for leave of his own volition, and without the applicant's knowledge or consent. The applicant's daughter, Jelena Anikina also confirmed by affidavit that she had not instructed Mr. Green to file the application. Exhibited to her affidavit is a letter sent to her by Mr. Green explaining that he acted without her authorization so as to preserve her rights and the rights of her grandson. The evidence establishes that the applicant did not herself authorize the application and that Mr. Green acted on his own initiative, with the best of motives, since he honestly believed that he was preserving the interests of his clients.
Issues
| 1. Did the Immigration Officer commit reviewable error by adjudging the applicant's eligibility from the date of dismissal of the unauthorized application for leave to commence a judicial review application? |
| 2. Did the Immigration Officer err in failing to have due regard to the submissions of the applicant relative to the undisputed facts surrounding the unauthorized application for leave? |
Analysis
The central issue raised by this application may be simply put: Should individuals suffer the legal consequences of actions taken by their lawyer without their authorization?
This question was answered in the negative in unmistakeable language by the Earl of Halsbury in the House of Lords1: "... and to suggest to me that a Court of justice is so far bound by the unauthorized act of learned counsel that it is deprived of its general authority over justice between the parties is, to my mind, the most extraordinary proposition that I ever heard ... to say that any learned counsel can so far contradict what his client has said, and act without the authority of his client as to bind the court itself, is a proposition which I certainly will never assent to."
This principle has been followed in Canadian Courts2. However, where a solicitor acts without authorization under urgent circumstances, the client may still be bound provided the client acquiesces in and adopts the proceedings3
Likewise, where a client retains a solicitor and holds him out as his agent, he may be bound by the unauthorized acts of that solicitor under the laws of agency.
In my view, this record does not establish either acquiescence or a holding out. Indeed, the proceeding was dismissed because it was not perfected. This record clearly establishes that the within proceeding was not authorized by the applicant.
On this basis, I conclude that the application for judicial review filed on July 14, 1995 was filed without authority and should have been disregarded for the purposes of considering the applicant's membership in the Deferred Removal Orders Class (D.R.O.C.). Accordingly, it follows in my view that the Immigration Officer erred in calculating the correct date for commencing the three year waiting period.
Conclusion
As a consequence, and for the above reasons, the application for judicial review is allowed, the decision herein of Immigration Officer K. Clemmens dated June 24th, 1996 is set aside and the matter is remitted for reconsideration and redetermination by a different Immigration Officer on the basis that the application for leave to commence an application for judicial review filed by the applicant's counsel as of July 14th, 1995, should not be considered in the determination of the applicant's eligibility under the Deferred Removal Orders Class.
Certification
Neither counsel suggested certification of a serious issue of general importance pursuant to Section 83 of the Immigration Act. I agree with that view of the matter. Accordingly no question will be certified.
"Darrel V. Heald"
D.J.
Toronto, Ontario
May 21, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2374-96
STYLE OF CAUSE: KLAVDIA PETROVA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: MAY 20, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: MAY 21, 1997
APPEARANCES:
Mr. Lorne Waldman
For the Applicant
Ms. Lori Hendriks
For the Respondent
SOLICITORS OF RECORD:
Lorne Waldman
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2374-96
Between:
KLAVDIA PETROVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Neale v. Lennox [1992] A.C. 465, at 470.
2 See, for example Davis v. Campbell (1986), 9 C.P.C. (2d) 48. See also, Smith v. Robinson (1992), 7 O.R. (3d) 550 (Gen. Div.).
3 See HRP Management v. Morse (1991), 49 C.P.C. (2d) 208.