Date: 19990811
Docket: IMM-1087-99
BETWEEN:
DR. PRAKASH PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
| [1] On July 23, 1999, the Applicant made a motion in writing to the Court for directions pursuant to Rule 54 of the Federal Court Rules on "how the case summary sworn by the Respondent"s officer should be included in the tribunal record". In support of his motion, the Applicant filed the affidavit of Marko Vitorovich which details various exchanges between counsel for the parties between May 3 and May 27, 1999. The Respondent filed an affidavit in reply setting out the evidence of Marcel Larouche, counsel with the Department of Justice, regarding his dealings with the Applicant"s lawyer, Mr. Chaudhary, during the same period. The Applicant, in turn, asked that the affidavit of the Respondent"s solicitor be struck as being in violation of Rule 82 of the Federal Court Rules , 1998, or alternatively, be disregarded because it deals with highly contentious issues. |
| [2] After carefully reviewing the affidavit of Mr. Larouche, I have concluded that the Applicant"s objection should be dismissed. The Applicant himself made the exchanges between counsel for the parties the central issue on this motion. Most of the facts do not appear to be at issue, except for what was said between counsel on May 27, 1999. Of note is the fact that the Applicant has chosen not to cross-examine Mr. Larouche on his affidavit. As well, the issues raised are essentially procedural rather than substantive. Mr. Larouche"s evidence is relevant and will assist the Court in determining what directions to issue in the circumstances. |
| [3] By way of background, on March 5, 1999, the Applicant filed an application for judicial review of a decision by a designated officer stationed in the Respondent"s Cairo visa office. The officer, Mona Z. Fahmy, had refused the Applicant"s application for permanent residence in Canada. The Applicant was seeking judicial review to have the officer"s decision quashed by this Court and have his permanent residence application reconsidered. |
| [4] On April 1, 1999, the Applicant served and filed his personal affidavit in support of the application for judicial review. On May 3, 1999, Mr. Larouche sought and obtained the consent of Mr. Chaudhary to serve and file a document, identified as the visa officer"s case summary, presumably to serve as the Respondent"s reply affidavit. The case summary, attached as an exhibit to the affidavit of Marko Vitorovich, is a sworn document by the visa officer, Mona Z. Fahmy dated March 18, 1999. According to Mr. Larouche, case summaries are generally considered privileged, however in this case, the Crown"s privilege was being waived. |
| [5] Mr. Larouche arranged to have the case summary served on the Applicant by fax on May 3, 1999 and then immediately attempted to file same with the Registry. On May 4, 1999, the document was rejected by the Registry as irregular and was returned to the Respondent. |
| [6] There is no indication that Mr. Larouche informed Mr. Chaudhary of the rejection of the case summary by the Registry until May 27, 1999, when a telephone conversation took place between the two representatives, triggered no doubt by a letter from Mr. Chaudhary dated May 25, 1999 inquiring whether the case summary was to be treated as an affidavit. There is some dispute on the evidence before me as to what was actually discussed between counsel that day. I have decided to prefer the Respondent"s version since it is not hearsay and is consistent with the steps subsequently taken by the parties. |
| [7] Mr. Larouche advised Mr. Chaudhary on May 27, 1999 that the Federal Court Registry had not accepted the case summary and that it had been returned to his office. He further stated that the case summary was not part of the court record, nor was it part of the tribunal record. In response to the affirmation found at paragraph 6 of the affidavit of Marko Vitorovich, Mr. Larouche denies having indicated or intimated to Mr. Chaudhary that he would be relying on the case summary notwithstanding the rejection of the document. Mr. Larouche"s version is credible in that the Respondent had been prevented from filing the document. Therefore, at the time of the telephone conversation, the case summary was not part of the court record and could not be relied upon by either party without leave being obtained from the Court to file additional material either under Rules 312 or 313. |
| [8] On June 8, 1999, the Applicant filed his Application Record. At paragraphs 3 and 4 of his Memorandum of Fact and Law, the Applicant challenges the admissibility of the case summary as an affidavit in the proceeding. The Applicant also makes extensive reference to the case summary in his written argument to buttress his case. |
| [9] In reply the Applicant"s Memorandum, the Respondent contends that the case summary could not be considered part of the tribunal record, nor was it before the Court on this application. As such, the Respondent argues that the Applicant cannot not rely on the case summary in its argument on judicial review. |
| [10] The Applicant seeks directions from the Court on how to include the case summary in the tribunal record. Based on the evidence before me, it would be inappropriate to include the case summary as part of the tribunal record. It is clear from the materials placed before me that the case summary was prepared by the visa officer after the impugned decision was made and in response to the application for judicial review. It therefore cannot and should not be considered to be part of the tribunal record. |
| [11] The Applicant"s lawyer appears to have filed the Applicant"s Application Record under a misapprehension that the case summary somehow formed part of the court record. He was obviously mistaken and should have taken steps prior to filing the Record to determine the status of the document. However, counsel"s error does not obviate the fact that the case summary is relevant to the present proceeding and would assist the Court. The Respondent evidently recognized this when tendering same to the Registry for filing on May 3, 1999. |
| [12] A hearing date for the application has now been fixed for March 8, 2000. Consequently, allowing the filing of additional material at this stage will not delay the matter, nor will it prejudice the Respondent. |
| [13] Being satisfied that the case summary will assist the reviewing judge, it is ordered that the Respondent shall serve and file the original or a copy of the case summary, including all exhibits identified, within 10 days of the date of these directions. The document shall hereinafter be referred to as the affidavit of Mona Z. Fahmy sworn March 18, 1999 and shall be received for filing as the Respondent"s affidavit in this proceeding. The Applicant did not request an extension of time to cross-examine the deponent, nor do I consider appropriate to so order in the circumstances. |
| [14] The Applicant shall file an Amended Application Record within ten days of service of the Respondent"s affidavit. |
| [15] The Respondent shall file an Amended Respondent"s Record within 15 days of service of the Applicant"s Amended Application Record. |
"Roger R. Lafrenière"
Prothonotary
TORONTO, ONTARIO
August 11, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1087-99 |
| STYLE OF CAUSE: DR. PRAKASH PATEL |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: WEDNESDAY, AUGUST 11, 1999
| WRITTEN REPRESENTATIONS BY: Mr. M. Max Chaudhary |
For the Applicant
Mr. Marcel Larouche
For the Respondent
| SOLICITORS OF RECORD: M. Max Chaudhary |
Barrister & Solicitor
255 Duncan Mills Road
Suite 405
North York, Ontario
M3B 3H9
| For the Applicant |
| Morris Rosenberg |
Deputy Attorney General of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
Date: 19990811
Docket: T-1087-99
Between:
| DR. PRAKASH PATEL |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
| AND ORDER |
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