Date: 20010606
Docket: IMM-1250-01
Neutral Citation: 2001 FCT 606
BETWEEN:
JARNAIL SINGH JAWANDA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
Mr. John A. Hargrave
Prothonotary
REASONS FOR ORDER
[1] This application to strike out a Judicial Review Application founders for at least two reasons. First, Judicial Review proceedings are struck out only in very exceptional cases and that is not the situation here. Second, striking out, on the basis of a time bar, is not usually successful. I will examine this in a little more detail.
STRIKING OUT JUDICIAL REVIEW PROCEEDINGS GENERALLY
[2] A Judicial Review proceeding ought to be struck out only in the very exceptional case: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. [1995] 1 F.C. 588 at 600, a decision of the Court of Appeal. The "...direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." (Ibid. at page 597). In the situation of a clearly improper application for Judicial Review, one bereft of any possibility of success, the Court has struck out Judicial Review proceedings. However, here there seems to be some diversity of view between counsel as to the merit of the Judicial Review proceeding and the date of communication of the final decision.
TIME BAR
[3] Striking out on the basis of a time bar is not usually allowed. Counsel for Mr. Jawanda does refer me to Professional Institute of the Public Service of Canada v. Canada (Customs and Review Agency), an unreported 29 January 2001 decision of Madam Prothonotary Aronovitch in Federal Court file T-598-00, which does refer to situations in which proceedings were successfully struck out on the basis of a time bar:
47 Generally, a plea of limitation is not a basis for striking an application. It is appropriately raised in defence and argued at the hearing of the application. That said, this court has struck out applications commenced in excess of the limitation period where there were no arguable issues concerning the timing of the decision or its communication to the applicant: Drolet v. Superintendent des faillites et al. (1996), 118 F.T.R. (T.D.); Dutt v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1518 (T.D. Prothonotary).
Here Counsel for Mr. Jawanda relies upon the general proposition that a plea of limitation is not a basis for striking out an application. Counsel for the Minister of Citizenship and Immigration counters that the Court has indeed struck out Judicial Review Applications commenced after the limitation has expired, where there are no arguable issues as to timing of the decision or its communication, relying on the above quotation. However, in the present instance, there does seem to be a diversity of view as to both arguable issues, timing of the decision and its communication.
[4] I would also go on to observe that "...a time bar is a procedural tool for a party to use or not to use at a later date.": BMG Music Canada Inc. v. Vogiatzakis (1996) 67 C.P.R. (3d) 27. In Vogiztzakis, I refer to the concept that the proper procedure is not to apply to strike out a plea that may be time barred, but to plead the limitation and then set the matter down as a question of law. In a Judicial Review setting the time bar, unless it is a blatant and obvious time bar with no redeeming arguable issues, ought to be dealt with at the hearing of the review itself: see for example Professional Institute of Public Service (Supra) and Alcorn v. Commissioner of Corrections (Canada) (1999) 156 F.T.R. 239 at 242.
[5] Here, as I have already noted, there are different views as to the date of the decision and its communication. Thus a motion to strike out is not an appropriate vehicle within which to decide the time bar issue.
CONCLUSION
[6] The motion is denied. The Respondent shall have a 30 day extension of time within which to serve and file Affidavits.
(Sgd.) "John A. Hargrave"
Vancouver, British Columbia
6 June 2001