Date: 20010123
Docket: IMM-148-97
BETWEEN:
ANDREI ROGOV
Applicant
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent)
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The applicant in the above case is seeking, through a motion, to have the April 7, 1997 order of Madam Justice McGillis dismissing the application for leave and judicial review of the decision of the Immigration and Refugee Board, ruling that the applicant is not a Convention refugee, set aside.
FACTS
[2] In January 1997, the applicant hired Ms. Brigitte Poirier, an attorney, to represent him in his application for leave and judicial review of the decision of the Immigration and Refugee Board (the "IRB").
[3] On January 10, 1997, Ms. Poirier filed the application for leave and judicial review. On February 18, 1997, Ms. Poirier filed a motion for an extension of time in which to prepare the case. This motion was supported by her affidavit.
[4] In June 1997, the applicant learned, when he went to the offices of the IRB, that the application for leave had been dismissed on April 7, 1997.
APPLICANT'S SUBMISSIONS
[5] The applicant is convinced that Ms. Poirier made the motion for an extension of time because she had forgotten to file his record with the Court. The applicant never knew that Ms. Poirier had made this motion for an extension of time.
[6] The applicant alleges that paragraphs 4 and 5 of Ms. Poirier's affidavit in support of the motion of February 18 do not reflect the reality. Paragraphs 4 and 5 state:
[Translation]
After they were heard by the undersigned counsel and the applicant, a Russian interpreter was consulted for the purpose of translating the said cassettes;
This translation was not completed until February 11, 1997, which explains the present motion;
[7] The applicant argues that he never knew that Ms. Poirier made the hearing cassettes request to the IRB. The applicant never saw the cassettes of the hearing or heard them with or without the presence of Ms. Poirier.
[8] The applicant alleges that he never "knew" the Russian translator who was consulted to translate the cassettes and that he never saw the transcripts made by the Russian translator.
[9] The applicant argues that under Rule 82 of the Federal Court Rules, 1998 a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.
[10] Consequently, the applicant argues that the order of McGillis J., dated April 7, 1997, was obtained on the basis of a procedural defect. The applicant also argues that the refugee claimant is in the best position to inform the Court, through his affidavit, of the nature of his application for judicial review.
[11] The applicant argues that the motion was unlawfully admitted by the Registry of the Court. He also argues that the motion of February 18, 1997 conflicts with the principle of impartiality since a person cannot be counsel and party in the same proceeding.
[12] According to the applicant, the fact that the Court accepted Ms. Poirier's affidavit meant that it was accepting Ms. Poirier as a party to the trial, while her role should have been limited to being the applicant's counsel.
RESPONDENT'S SUBMISSIONS
[13] Since the applicant has not specified under which rule he is seeking to have McGillis J.'s order set aside, the respondent presumes that the applicant is relying on Rule 399(2)(a).
[14] The respondent submits that when an applicant alleges a matter that was discovered subsequent to the making of an order, the applicant must demonstrate that this matter could not, with due diligence, have been discovered before the date alleged.
[15] The respondent submits that the error or negligence of an attorney cannot trigger the application of Rule 399. The fact that the applicant's counsel signed an affidavit in support of a proceeding she was arguing herself cannot constitute a new matter.
[16] The respondent argues that the attorney for a party to a proceeding is that party's mandatary or alter ego and that, as such, the attorney assumes, on behalf of his mandator, a number of obligations including those governing the conduct of the proceedings.
[17] The respondent considers that it would be unfair if a person who decides to be represented by counsel whom he chooses freely were to be excused for the errors that this mandatary might commit, while a person who decides to represent himself must undergo the consequence of any errors he might commit, in this case the dismissal of his application for leave.
[18] Furthermore, the respondent argues that the applicant has failed to prove that he acted with due diligence. The applicant must explain at what time the matter he is citing in support of his motion was discovered, he must explain any period that has elapsed before he files with the Court his motion to set aside the judgment, and he must provide some reasonable grounds that might justify any delay in taking action. He must also establish that the matter could not have been discovered earlier if he had displayed due diligence.
[19] Consequently, the respondent submits that the applicant has not discharged his onus of establishing that the facts cited in his motion warrant setting aside the judgment of this Court.
ANALYSIS
[20] As the Federal Court of Appeal held in Canada (M.E.I.) v. Chung, [1993] 2 F.C. 42:
In order to have a judgment set aside under Rule 1733 an applicant must demonstrate that the matter was discovered subsequently and that he has acted with reasonable diligence (See Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189 (C.A.); Rostamian v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 49 (F.C.A.)). Normally, in a Rule 1733 application, the Court will consider those two questions before deliberating on the merits of the application. It follows that there is no assurance that the Court will ever consider the merits of an application under Rule 1733 as the application may be dismissed before reaching that point.
[21] Although Rule 82, which provides that a solicitor may not depose to an affidavit and present argument to the Court based on that affidavit, was not in force at the time of Madam Justice McGillis's decision in this case, it is true that the principle of Rule 82 was well known and already being applied by the courts.
[22] However, I do not think the applicant's discovery that his former counsel had presented a motion for extension of time can be considered a new matter.
[23] Indeed, as the respondent states, an attorney's negligence cannot constitute a new matter. In Skorokhodov v. Canada (M.C.I.), [1997] F.C.J. no. 1008, Nadon J. states, at paragraph 13:
It is clear from that decision that in order to meet the requirements of Rule 1733 an applicant must show that he or she came to the knowledge of the new matter cited only subsequent to the decisions sought to be set aside, that this matter could not with reasonable diligence have been discovered earlier and that this matter is such that if it had been brought to the attention of the Court it might probably have altered the judgment. ...
In my opinion, the remarks of Létourneau J. are sufficient to dispose of the applicants' argument, in the instant case, that the discovery of Mr. Karpishka's alleged negligence means that they may rely on Rule 1733. In my opinion, that argument is not sound. I cannot see how the facts in Moutisheva can be distinguished from the facts before me. In the instant case, as in Moutisheva, the applicants are alleging the discovery of errors and omissions by their former counsel as grounds for relying on Rule 1733.
It is true that, unlike the applicants in Moutisheva, the applicants in the instant case are not alleging any "fraud" on the part of their lawyer. The remarks of Létourneau J. are nonetheless relevant. In my opinion, the discovery of Mr. Karpishka's negligence does not constitute "matter arising subsequent to the making thereof or subsequently discovered, ...", such as would lead to setting aside the impugned judgments. Mr. Karpishka, the applicants' lawyer, was their "agent". In my opinion, the applicants cannot rely on his negligence to have the orders made by McGillis J. set aside.
[24] I am also in agreement with the respondent that the applicant has not shown by his affidavit that he had demonstrated due diligence in order to "discover" the new matters and present them to the court.
[25] The motion was filed in February 1997 and was dismissed in April 1997. It was not until June 1997 that the applicant took some steps to find out what had happened to his case and that he was informed of the dismissal of his application. The applicant did not retain the services of a lawyer for the present motion until September 30, 2000. The applicant's delay in retaining the services of a lawyer is not explained and, in my opinion, shows that the applicant has not demonstrated due diligence.
[26] Consequently, the motion is dismissed.
Pierre Blais
J.
OTTAWA, ONTARIO
January 23, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-148-97
STYLE: ANDREI ROGOV
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
MOTION EXAMINED ON FILE WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: JANUARY 23, 2001
APPEARANCES:
MANUEL CENTURION THE APPLICANT
MICHEL PÉPIN THE RESPONDENT
SOLICITORS OF RECORD:
MANUEL CENTURION THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA