Date: 20001221
Docket: IMM-5092-00
MONTREAL, QUEBEC, THIS 21st DAY OF DECEMBER 2000
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
Between:
ISMAIL IBRAHIM
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Respondent's Motion to strike out from the Applicant's Record the affidavit of Carlos Hoyos Tello as well as the exhibits and arguments based upon them.
[Rule 369 of the Federal Court Rules, 1998]
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] Even though the Respondent's motion was not made under the inherent jurisdiction of this Court, it seems to me that it must be addressed under that jurisdiction, as applied by Strayer J.A. in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54-5 ("Pharmacia"). I believe that the principles stated therein apply to this case, even though here the Respondent is seeking to have the Applicant's record struck out only in part, and not to have the entire application for review struck out. I would even say that Pharmacia applies here particularly, and therefore a fortiori, since the motion seeks to strike out only a few documents.
[2] In Pharmacia, Strayer J.A. allowed a motion to strike out to be made in a judicial review proceeding only in exceptional cases. At pages 54-5, the Court said:
| This is not to say that there is no jurisdiction in this court inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegation in the notice of motion. |
| [Emphasis added] |
[3] The same reasoning was followed by Nadon J. of this Court in a decision dated August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., Court File No. T-1238-96, at page 5).
[4] In the instant case, the aspects that the Respondent is seeking to have corrected by making this motion are not, in the circumstances, aspects that, even in the event that the Respondent might be correct, may be seen as so incorrect or unacceptable that we should intervene in the process of an application for judicial review (see the comments of Strayer J.A. in Pharmacia, supra, at pages 54-5). Any motion to strike out that is made in the course of an application for judicial review must be an exception, so that one of the primary objectives of such an application, which is to hear the application on the merits as quickly as possible, may be met.
[5] As Strayer J.A. stated in Pharmacia:
| ... [T]he focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case. |
| (See also the decisions in Merck Frosst Canada Inc. et al. v. Minister of National Health and Welfare et al. (1994), 58 C.P.R. (3d) 245, at page 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Welfare et al., unreported decision of this Court, September 6, 1996, Court File No. T-793-96.) |
[6] For the above reasons, this motion is dismissed.
[7] Costs in the cause.
Richard Morneau
Prothonotary
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
IMM-5092-00
ISMAIL IBRAHIM
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
WRITTEN MOTION EXAMINED IN MONTREAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:December 21, 2000
WRITTEN OBSERVATIONS BY:
Mr. Stewart Istvanffy for the Applicant
Ms. Pascale-Catherine Guay for the Respondent
SOLICITORS OF RECORD:
Mr. Stewart Istvanffy for the Applicant
Montreal, Quebec
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada