Federal Court Decisions

     IMM-3342-95

Ottawa,Ontario, Wednesday, the 23rd day of October, 1996

Present:      The Honourable Mr. Justice Gibson

B E T W E E N:

     ABDI NUR AHMED

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     ORDER

     Upon motion dated the 19th day of September, 1996, on behalf of the Midaynta, The Association of Somali Service Agencies (Metro Toronto) (herein "Midaynta"), for an Order granting Midaynta standing as an Intervenor, and setting out how the proposed Intervenor is permitted to participate in the hearing.

     IT IS HEREBY ORDERED:

     The application is dismissed.

             _______________________

             Judge

     IMM-3342-95

B E T W E E N:

     ABDI NUR AHMED

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     By notice of motion filed the 19th day of September, 1996, Midaynta, the Association of Somali Service Agencies (Metro Toronto) ("Midaynta"), seeks to be granted standing as an Intervenor in this application for judicial review. The grounds for seeking intervenor status are stated in the notice of motion to be:

a) That it would be in the interest of the administration of justice to grant the proposed intervenor standing.

b) That the proposed intervenor has a clear private interest in the application.

c) That it would be in the public interest to grant the proposed intervenor standing.

d) That it would not be contrary to the Respondent's interests to permit the proposed intervenor's participation in the hearing.

e) That the Respondent has a historic relation[ship] with the proposed intervenor, and the proposed intervenor has knowledge of the Respondent's historic policy and policy concerns with respect to the issues at stake in the hearing. Based on this special relationship and knowledge, the proposed intervenor may assist both the Court and the Respondent in ensuring that the implications for the Respondent's administration of the Immigration Act and the impact of any potential remedy is fully explained to this Honourable Court.

Abdi Nur Ahmed ("Ahmed") is from Somalia. He arrived in Canada on the 2nd day of September, 1993 and claimed convention refugee status. He has been found to be a Convention refugee. He was determined by an immigration counsellor not to have satisfied the identity documents requirement of subsection 46.04(8) of the Immigration Act.1 It is that decision that is under review in this judicial review application. He seeks the following relief as set out in the Memorandum of Argument filed on his behalf:

- ... the Immigration officer's decision ... be set aside.

- ... an order declaring that s. 46.04(8) of the Immigration Act is of no force and effect, as being contrary to sections, 7, 15 and 27 of the Charter, and Canada's international law obligations.

- ... an order in the nature of mandamus directing the Respondent's officials to process his application for permanent residence in accordance with law, without reference to s. 46.04(8) of the Immigration Act. ...

- ... an order directing that the words "satisfactory identify document" be interpreted as permitting the submission of affidavit evidence of identity for applicants for permanent residence so as to bring the Respondent's practice into compliance with sections 7, 15 and 27 of the Charter, Canada's international law obligations, s. 3 of the Immigration Act, and the historic practices and purposes of the Respondent.

- ... Insofar as the Respondent has abandonned [sic] the discretion afforded by s. 46.04 (8), ... an order declaring [Ahmed] to be a permanent resident of Canada in accordance with the above interpretation of s. 46.04(8) of the Immigration Act.

- ... In the alternative, ... an order in the nature of mandamus directing the Respondent's officials to process his application for permanent residence in accordance with law and this interpretation of s. 46.04(8) of the Immigration Act.

- ...In the further alternative, ... an order prohibiting the Respondent from applying s. 46.04(8) until such time as the Respondent develops proper guidelines for the exercise of the discretion contained therein so that every person who applies for landing, including a person who does not have and cannot obtain identification documents, is given a reasonable opportunity to satisfy s. 46.04(8).

-... Such other remedy or remedies as this Honourable Court deems just.

Counsel for the respondent conceded Midaynta's interest in the issues in this application for judicial review, its knowledge and expertise in the subject matter area and its capacity to contribute with respect to the Charter arguments anticipated by the reliefs requested by Ahmed. Nonetheless, counsel for the respondent argued against granting Midaynta's application for intervenor status on the ground that judicial reviews are intended to be disposed of expeditiously, that adding of Midaynta as an intervenor at this late stage2 would work against the expeditious disposition of Ahmed's application and that Midaynta's expertise and information, to the extent that it is relevant, could otherwise have been put before the Court.

Counsel for Midaynta urged, in particular, the public interest in granting intervenor status and the advantage to this Court that would flow from a grant of intervenor status.

The Federal Court Immigration Rules, 19933 which provide for the procedure on judicial review applications such as this make no provision for intervenors. This is to be contrasted with the provisions of the Federal Court Rules4 which govern the procedure in other judicial review applications, that is to say, what are normally referred to as to the "1600 Rules". Those rules, contained in Part V.I of the Federal Court Rules, include rule 1611 which is specifically directed to the issue of interventions.

Rule 4(1) of the Federal Court Immigration Rules makes certain provisions of the Federal Court Rules applicable in judicial reviews in immigration matters other than judicial reviews of decisions of visa officers. The provisions made applicable do not include Rule 1611 of the Federal Court Rules. This is to be contrasted with Rule 4(2) of the Federal Court Immigration Rules, which makes all of the "1600 Rules", including Rule 1611, applicable to judicial reviews of decisions of visa officers.

In light of the very specific provisions of Rule 4 of the Federal Court Immigration Rules, can it be said that there exists a "gap" in the Federal Court Immigration Rules to be filled by the application of Rule 5 of the Federal Court Rules, which is incorporated by reference into the Federal Court Immigration Rules? Rule 5 of the Federal Court Rules reads as follows:

5.      In any proceeding in the Court where any matter arises not otherwise provided for by any provision in any Act of the Parliament of Canada or by any general rule or order of the Court (except this Rule), the practice and procedure shall be determined by the Court (either on a preliminary motion for directions, or after the event if no such motion has been made) for the particular matter by analogy

(a) to the other provisions of these Rules, or

(b) to the practice and procedures in force for similar proceedings in the courts of that province to which the subject matter of the proceedings most particularly relates,

whichever is, in the opinion of the Court, most appropriate in the circumstances.

I conclude the answer to the question I have posed is in the negative.

In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc.5, not cited before me, Mr. Justice Strayer, speaking for the Court, wrote:

For Rule 5 to apply there must be a "gap" in the Federal Court Rules. Simply because those Rules do not contain every provisions found in provincial court rules does not necessarily mean that there is a gap. If the absence of such a provision can be readily explained by the general scheme of the Federal Court Rules then that absence must be considered intentional and any application by analogy of provincial court rules or other provisions of the Federal Court Rules which are on their face inapplicable would amount to an amendment to the Federal Court Rules.

I am satisfied that the words of Mr. Justice Strayer apply here with respect to the Federal Court Immigration Rules. The Federal Court Immigration Rules, like the "1600 Rules", provide a strict timetable for preparation for hearings and a role for the Court in ensuring there is no undue delay. Time limits fixed by the Rules can only be extended by a judge, not by consent. To quote further from Mr. Justice Strayer in David Bull Laboratories,:

This all reinforces the view that the focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objection to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.

Once again, the same thing can be said with respect to the Federal Court Immigration Rules. Further, given the specificity of Rule 4 of the Federal Court Immigration Rules, it would have been a simple matter for the Governor in Council, in enacting those rules, to have incorporated Rule 1611 by reference into the Federal Court Immigration Rules applicable to matters such as this, as it did with respect to so many other of the Federal Court Rules. Having failed to do so, I am not prepared to conclude that the failure was merely by oversight. I conclude it was intentional.

To summarize then, there is no provision in the Federal Court Immigration Rules to add intervenors in judicial review applications of the nature here at issue. I conclude that the lack of such a provision does not represent a "gap" in the Federal Court Immigration Rules. Rather, it represents an intentional omission for reasons that can only be speculated upon. Given what I find to be the intentional nature of the omission, I conclude it is not open to me to rely on Rule 5 of the Federal Court Rules, the "Gap Rule", to import Rule 1611 of the Federal Court Rules as a process in a matter such as this to allow for an intervenor or intervenors.

In written submissions allowed for on this application because the impact of David Bull Laboratories on this matter was raised by the Court rather than by counsel, counsel for the Applicant urged against my reliance on David Bull Laboratories and argued that I should exercise my discretion and utilize the "Gap Rule" on the facts before me. By reference to David Bull Laboratories, counsel noted that the applicant in the application there under consideration was the respondent on the main application and Mr. Justice Strayer acknowledged that the submissions brought forward on the interlocutory application would remain open to the applicant to make on the hearing of the main issue in its capacity of respondent on that main issue. By contrast, counsel pointed out that, if the Applicant Midaynta is unsuccessful on its application before me, it would clearly not be before the Court on the main motion and will not have the opportunity then to speak to the range of issues raised on this application for judicial review. There is, I am satisfied, a short answer to this concern. Federal Court Immigration Rule 10(2) provides that an applicant for judicial review shall serve and file a record containing "...one or more supporting affidavits verifying the facts relied on by the applicant in support of the application." The wide range of relief sought on this application for judicial review was contemplated in Ahmed's application for leave and for judicial review. Grounds reflecting concerns regarding subsection 46.04(8) in light of the Charter were cited. When complying with Federal Court Immigration Rule 10(1), affidavits from officers of Midaynta attesting to their knowledge on this issue could have been obtained and filed. Argument could have been adduced based on that affidavit evidence. For whatever reasons, this was not done. If it had been, I am aware of no allegations that counsel for Ahmed could not have fully and effectively argued from that affidavit material. Clearly, by coming forward at this time, Midaynta is, in effect, attempting to supplement material filed in the Applicant's application record in a way not contemplated by the Federal Court Immigration Rules and in a way that would inevitably delay the expeditious hearing and disposition of this application for judicial review. I am satisfied that it is now too late for Ahmed and Midaynta indirectly to attempt to remedy what may now appear to be a deficiency in the original application record filed.

Counsel further argues that Mr. Justice Strayer in David Bull Laboratories left room for an exercise of discretion which I should seize upon in the circumstances before me. He refers to the following quotation from Mr. Justice Strayer's reasons in David Bull Laboratories:

This Court should not of course interfere with a trial judge's exercise of discretion, such in a refusal to strike, unless he or she has proceeded on some wrong principle of law or has seriously misapprehended the facts, or unless an obvious injustice would otherwise result.

Counsel argues that an exercise of my discretion on the facts before to grant intervenor status in the interest of ensuring the Midaynta will be available to assist the Court, would be well within the ambit of my discretion and not the type of a decision that the Court of Appeal would interfere with. With great respect, on the basis of the reasoning set forth in these reasons, I am satisfied that I would be proceeding on a wrong principle of law if I were to grant Midaynta's application.

Finally, counsel urges that there is precedent for a grant of intervenors status "...under the Federal Court Immigration Rules." For this proposition he cites an order of Mr. Justice Rouleau in Minister of Citizenship and Immigration v. Nemsila.6 I have reviewed the Court's file in Nemsila. Mr. Justice Rouleau gave no reasons for his order adding intervenors. Federal Court Rule 1611 was cited to him as authority for doing so. There is no indication that David Bull Laboratories was brought to his attention or that the concerns that I have expressed in these reasons were argued before him. I decline to follow the Nemsila precedent.

For the foregoing reasons, this application by Midaynta for intervenor status is dismissed.

Counsel for Midaynta requested in written submissions that I declare myself to be seized of the Ahmed application for judicial review in light of my involvement in this motion and in at least one earlier stage of immigration proceedings regarding Mr. Ahmed. I decline to do so, particularly in light of the fact that this matter is set down for hearing in less than a week's time and I am not then scheduled to be the presiding judge. I am also concerned that, to some extent at least, during the hearing of the Midaynta application, I might conceivably have been seen by some to have disclosed a bias as to the eventual outcome of the Ahmed application.

________________________________

Judge

Ottawa, Ontario

October 23, 1996

__________________

¹      R.S.C. 1985, c. I-2.

² The judicial review hearing is scheduled for Toronto on October 29, 1996. This motion was heard October 7. At the close of the hearing, counsel were provided time to file written argument. Final written submissions were received by the Court on October 22.

³      SOR/93-22.

⁴      C.R.C. 1978, c 663.

⁵      [1995] 1 F.C. 588 (C.A.)

⁶      Court File IMM-2008-95, 22 November, 1995 (F.C.T.D.)(no reasons given)