Date: 19990604
Docket: IMM-760-99
BETWEEN:
GANESH KRISHNAMURTHY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1] On June 3, 1999, the Administrator referred the above-noted file to me for directions. I reviewed all the documents in the Court file, including a letter from counsel for the Respondent dated June 2, 1999, the affidavit of Paolo Casale sworn June 2, 1999, and the response of counsel for the Applicant dated June 3, 1999. The facts are not substantially in dispute.
[2] The Respondent raises concerns regarding the deficiency of an affidavit of Gian Paul sworn the 9th day of March, 1999 and served by fax on March 15, 1999. The irregularity identified by the Respondent is that exhibits referred to in the said affidavit were not attached, and consequently should not have been received by the Court. Counsel for the Respondent asserts that this deficiency was immediately brought to the Court's attention.
[3] A review of the Court file reveals that the affidavit of Gian Paul was in fact filed on March 19, 1999. I observe that although reference is made in the said affidavit to exhibits at paragraphs 2, 3 and 5, none are attached.
[4] On May 28, 1999, the Applicant filed his Record. At pages 8 to 11 of the Record, the affidavit of Gian Paul sworn March 9th, 1999 is reproduced. However, I further observe that the affidavit appears to have been altered at paragraphs 2, 3 and 5, in that the references to exhibits have been struck out and the affiant has endorsed the alterations by initialling the changes.
[5] The Respondent alleges that the filing of the irregular document and reproduction of an altered affidavit in the Applicant"s Record has prejudiced her position and seeks the direction of the Court. Counsel for the Applicant replies that the Respondent was served with the affidavit of Gian Paul, without exhibits, and then took no action to challenge the document until served with the Applicant"s Record. As such, the Respondent should be precluded from raising this issue at this late stage.
[6] After carefully considering the argument of both counsel, I am of the view that an order should issue in this case. Counsel for the Respondent identified the deficiency in the affidavit to the Court immediately upon service. Although counsel for the Respondent could have taken steps to ascertain whether the affidavit of Gian Paul was actually filed with the Court, I am satisfied that it wasn"t until the Applicant"s Record was served that the Respondent could confirm that the Applicant would be relying on an allegedly irregular document.
[7] Rule 74 of the Federal Court Rules provides that an irregular document can be ordered removed "at any time". The Respondent is merely requesting that the Court take the action it should have taken back on March 19, 1999 (date of filing of the affidavit) and reject the affidavit as irregular.
[8] There is, in my view, an additional ground for the Court"s intervention at this stage. Counsel for the Applicant asserts in his reply that "the affidavit he (Respondent"s counsel) was served with and subsequently relied upon by the applicant"s record is identical, except for the lack of exhibits". That assertion is obviously incorrect. The affidavit reproduced in the Applicant"s Record is not "identical", as noted above, to the document served on the Respondent and filed with the Court. No satisfactory explanation for the modifications has been provided by the Applicant, although one was obviously required.
[9] The affidavit of Gian Paul sworn the 9th day of March, 1999 and filed on the 19th day of March, 1999 is irregular as it contravenes Rule 80(3).
[10] On the Court"s own initiative, all interested parties having been given an opportunity to be heard, it is ordered that the said affidavit be removed from the Court file pursuant to Rule 74 of the Federal Court Rules.
[11] The Applicant's Record, which includes an altered affidavit, is not only irregular, but improper. It is further ordered that the Applicant's Record also be removed from the Court file.
[12] The Applicant is hereby granted leave to file a motion, on proper notice to the Respondent, to regularize the proceeding within five days of this Order, failing which the application will be dismissed without further notice to the Applicant.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
June 4, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-760-99 |
| STYLE OF CAUSE: GANESH KRISHNAMURTHY |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
CONSIDERED PURSUANT TO RULE 74
| OF THE FEDERAL COURT RULES AT: TORONTO, ONTARIO |
| CONSIDERED ON: FRIDAY, JUNE 4, 1999 |
REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P.
| DATED: FRIDAY, JUNE4, 1999 |
| WRITTEN REPRESENTATIONS: Mr. M. Max Chaudhary |
For the Applicant
Mr. Toby Hoffman
| For the Respondent |
| SOLICITORS OF RECORD: Chaudhary Law Office |
Barristers & Solicitors
255 Duncan Mill Rd. #405
| Toronto (North York), Ontario |
| M3B 3H9 |
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990604
Docket: IMM-760-99
Between:
GANESH KRISHNAMURTHY
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
AND ORDER