Date: 20010123
Docket: IMM-2255-00
BETWEEN:
ANDREI ROGOV
Applicant
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent)
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion under Rule 369 to vacate the order that I rendered on September 1, 2000, which it is alleged was based on a fraudulent affidavit. The motion also seeks the reopening of the matter.
FACTS
[2] On April 17, 2000, Ms. V. Spyridoulias dismissed the applicant's claim as a member of the post-determination refugee claimants in Canada class.
[3] After receiving this decision, the applicant made some searches to find himself a lawyer or organization that might assist him.
[4] Between April 20 and 23, 2000, the applicant contacted the company D.E.F.I. (Défense et entraide aux familles immigrantes) to obtain some information on immigration programs. The applicant obtained some information by telephone from a person originally from Russia, who told him her name was Olga.
[5] Ms. Olga told the applicant that she was going to discuss his case with her boss and that she would get back to the applicant. On April 26, 2000, Ms. Olga telephoned the applicant and told him that her boss, Mr. Eddy Reynelg, could help the applicant solve his problem.
[6] On April 27, 2000, the applicant met with Ms. Olga and Mr. Reynelg at the D.E.F.I. office. During the interview by Mr. Reynelg, the applicant spoke in Russian and Ms. Olga acted as the interpreter. Mr. Reynelg, for his part, spoke in English.
[7] Mr. Reynelg informed the applicant that he could file an application for judicial review and that he could make an independent immigration claim for Canada.
[8] On April 28, 2000, the applicant signed a contract accepting Mr. Reynelg's services as an immigration advisor so the latter could file the applicant's application for judicial review. The applicant also signed a number of other documents at the request of Mr. Reynelg and Ms. Olga.
[9] In June 2000, the applicant went to take the diskette on which he had written his "story" to Mr. Reynelg.
[10] In July 2000, the applicant telephoned Mr. Reynelg and was told that the work had already been done on the application for judicial review. The applicant's final communication with Mr. Reynelg occurred in August 2000, when the applicant received the respondent's memorandum.
[11] On September 29, 2000, the applicant's application for leave was dismissed.
[12] On September 30, the applicant went to consult his lawyer, Mr. Manuel Centurion. In October 2000, Mr. Centurion briefed the applicant on his case and showed him the affidavit of July 4, 2000.
[13] The applicant was very surprised at the existence of the document, since he had never seen this document previously. Doubting the authenticity of the signature, the applicant asked his lawyer to consult an expert in graphology.
[14] The services of Ms. Henriette Fournier were retained to analyze the document.
[15] On October 17, 2000, Ms. Fournier and Mr. Centurion went to the Registry office of the Federal Court in Montréal to examine the originals of the relevant documents.
[16] Ms. Fournier sent her conclusion in regard to the affidavit in a letter dated October 20, 2000. Her conclusion reads as follows:
[Translation]
The signatures Andrei Rogov on pages 22 and 25 of the disputed document (Affidavit) and the signatures Andrei Rogov on the comparison documents were written by the same person.
The major difference found on the disputed document is the language of the text. At page 21 the text is in English, the type face is 11 point Time [sic] New Roman. The figures before each paragraph are manuscript. At page 22, the text is in French, the type face is 10 point Time [sic] New Roman. The figure 54 in the margin is handwritten.
The signature Andrei Rogov on the affidavit at page 22 crosses a base line and the signature was made above the line.
APPLICANT'S SUBMISSIONS
[17] The applicant argues that he did not make the affidavit of July 4, 2000 and that he is convinced that this affidavit was made by Mr. Eddy Reynelg from the diskette that the applicant had given to him.
[18] According to the applicant, he signed the final page of the affidavit dated July 4, 2000 on April 28, 2000 during his second meeting with Mr. Eddy Reynelg. He is therefore convinced that his signature was made before the affidavit of July 4, 2000 was made.
[19] The Commissioner of Oaths in the affidavit was Ms. Robillard. According to the applicant, she was not present at the time when the applicant signed the final page of the affidavit and he did not swear the statutory declaration before her. Nor did the applicant know that Ms. Robillard was Mr. Eddy Reynelg's secretary.
[20] Furthermore, the applicant speaks French and English only with great difficulty.
[21] Accordingly, the applicant argues that the order was not fair and equitable and that to accept the affidavit as being true would cause him serious prejudice. According to the applicant, a fraudulent affidavit amounts to no affidavit at all. The lack of an affidavit in an application for leave was considered a substantive defect in Metodieva v. M.E.I. (1991), 132 N.J.R. 38. The applicant therefore asks that the order be set aside and his application for leave and judicial review be reopened.
RESPONDENT'S SUBMISSIONS
[22] The respondent submits that the new Rule 399(2) of the Federal Court Rules, 1998 is comparable to the old Rule 1733, as can be observed from reading the wording of these rules. Thus, the respondent argues, the principles laid down by this Court and the Federal Court of Appeal in relation to Rule 1733 are appropriate in disposing of this application under Rule 399.
[23] Accordingly, the respondent says, the applicant must prove on a balance of probabilities that there was fraud. He must also prove that the fraud is material. And the respondent must prove that he was unaware of the fraud at the hearing and that he demonstrated due diligence.
[24] According to the respondent, the applicant has failed to demonstrate how the fact that he did not sign the affidavit of July 4, 2000 is material.
[25] The respondent submits that the applicant has not proved that he suffered prejudice. The applicant does not allege in any way that the affidavit contains erroneous or inaccurate facts that adversely affected him.
[26] Consequently, the motion should be dismissed.
ANALYSIS
[27] In my opinion, the applicant has established that the affidavit did not comply with the procedures for administration of oaths. However, the applicant does not indicate how this event is material to his case or the effect that this non-compliance with the procedures has on his case. The applicant does not indicate whether the affidavit establishes some erroneous facts and whether the decision of September 29, 2000 is based on some erroneous facts.
[28] I do not think it is sufficient to demonstrate that the affidavit failed to comply with the procedures for administration of oaths in order to find that it is a material fact that has had an impact on the decision. Thus, even if the motion was allowed, the applicant's affidavit on his application for leave would probably relate the same facts. It is not enough to recommence the process with an affidavit presenting some similar facts. The process is not there in order to give an applicant a second chance to recover after an initial application that was dismissed. Rather, Rule 399 was written into the Court's rules so that a person would not be frustrated in his rights as a result of fraud. In the case at bar, I am not convinced that the "fraud" is material to the case.
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-2255-00
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