RONKE SADIAT ADEGBITE Applicant v. THE MINISTER OF CITIZENSHIP, 2022 FC 145

Date: 20220204 Docket: IMM-1389-21 Citation: 2022 FC 145 Ottawa, Ontario, February 4, 2022 PRESENT: The Honourable Mr.

Justice Zinn BETWEEN: RONKE SADIAT ADEGBITE Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The Applicant moves for: " [A]n Order (1) reopening the Applicant’s Application for Leave and Judicial Review, which was discontinued by the Applicant; (2) extending the time permitted by Rule 10 of the Federal Courts Immigration and Refugee Protection Rules for the filing of the Applicant’s Record and permitting these to be filed nunc pro tunc ; and (3) extending the time for taking subsequent steps in this proceeding (notably the filing of a reply) to run from the date of the Court’s Order on this motion " . [ 2 ] The facts are not in dispute.

The Applicant, a citizen of Nigeria, sought refugee protection in Canada. The Refugee Protection Division [RPD] refused her claim. She appealed to the Refugee Appeal Division [RAD] and on February 2, 2021; it refused her appeal. [ 3 ] On March 2, 2021, the applicant filed a Notice of Application for Leave and Judicial Review of the RAD decision. However, the Applicant filed a Notice of Discontinuance of her judicial review application dated April 1, 2021.

As is noted by the Respondent, the Applicant was represented by counsel throughout this Court process. [ 4 ] The Applicant attests that she discontinued her application because: I did not have the financial resources to pay for the application in full. Additionally, I believe that would be successful in my Health-Care Workers Pathway application which I had completed alone, but which was unfortunately denied on May 27, 2021. [ 5 ] With the assistance of counsel, she resubmitted the Health-Care Workers Pathway application [Pathway Application], but it was rejected again on November 16, 2021.

On December 31, 2021, this motion to reopen the discontinued proceeding was filed. [ 6 ] In Philipos v Canada (Attorney General) , 2016 FCA 79 [ Philipos ] the Federal Court of Appeal confirmed that the Federal Courts have jurisdiction to regulate the opening and closing of their own files. [ 7 ] The principles enunciated in Philipos were recently summarized by Justice Mosley in Naboulsi v Canada (Citizenship and Immigration) , 2018 FC 916 at paras 17 – 20 : First, a file can only be resurrected in the case of “some fundamental event that strikes at the root of the decision to discontinue.” As an example, Justice Stratas referenced “repudiation of a settlement agreement that required a proceeding to be discontinued”: Philipos , above, para 20 .

Second, the discontinued proceedings must have some reasonable prospect of success: Philipos , above, para 21 . Third, the Court must consider the prejudice that may result if the proceeding is resurrected. Justice Stratas provides as examples a party taking significant steps relying on the discontinuance, the destruction of files, the cessation of evidence collection, and the disappearance of witnesses. Other forms of prejudice may warrant refusing to resurrect a proceeding: Philipos , above, para 22 . Finally, Justice Stratas noted that other considerations may warrant refusing to resurrect a proceeding.

This would include the Courts’ power to manage practices and procedures, police the conduct of proceedings, and prevent abuses of process: Philipos , above, para 23 . [ 8 ] The Federal Court of Appeal in Philipos at para 24 dismissed the motion to reopen finding that it was essentially based on a " “change of heart” " : The appellant’s motion must be dismissed. He discontinued his appeal of his own volition. Thus, he must point to something that strikes at the root of his earlier decision to discontinue. He has not done so.

Instead, he seems to have had merely a change of heart. [ 9 ] The Respondent submits, and I agree, that the present circumstances parallel those in Philipos . The Applicant has pointed to nothing

that strikes at the root of the earlier voluntary decision to discontinue the proceeding. She decided to discontinue this proceeding becauseshe believed that she would obtain permanent residency through her Pathway Application. [10] Even if she had established some fact that strikes at the root of her earlier decision, the Court is unable to assess whether she has anyreasonable chance of success in the judicial review application.

The RAD decision was not included with the motion and nothing isstated in the materials as to the basis on which she proposes to challenge the RAD decision. [11] Justice Stratas at para 21 of Philipos, explains this requirement as follows: Even where a fundamental event of that sort has happened, we must be satisfied that the discontinued proceedings sought tobe resurrected have some reasonable prospect of success. There is neither sense nor judicial economy in resurrecting adiscontinued proceeding destined to fail.

Twice we have refused to allow a discontinued proceeding to be resurrectedbecause it did not have a reasonable prospect of success: Teodorescu v. Canada, [1993] F.C.J. No. 1124, 47 A.C.W.S. (3d)389 at para. 14 (C.A.); Ahmed v. Canada (Minister of Employment & Immigration), 1990 CarswellNat 1242, 19 A.C.W.S.(3d) 910 at para. 2 (F.C.A.). This requirement is akin to our insistence that a party seeking an extension of time to bring anappeal demonstrate that it has some reasonable prospect of success: Canada (A.G.) v.

Hennelly (1999), (FCA), 244 N.R. 399, 167 F.T.R. 158 (C.A.). [12] For these reasons, the motion is dismissed. The Respondent did not seek costs and none will be ordered. ORDER IN IMM-1389-21 THIS COURT ORDERS that the motion for an order reopening the Application for Leave and Judicial Review, and other relatedremedies, is dismissed, without costs. "Russel W. Zinn" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1389-21 STYLE OF CAUSE: RONKE SADIAT ADEGBITE v THE MINISTER OF CITIZENSHIP ANDIMMIGRATION motion dealt with in writing without appearance of the partiesorder AND reasons: zinn J.

DATED: february 4, 2022 WRITTEN REPRESENTATIONS BY: Karim Escalona FOR THE ApplicantNicole Rahaman FOR THE RESPONDENT SOLICITORS OF RECORD: Lewis & Associates Barristers and Solicitors Toronto, Ontario for the Applicant Attorney General of Canada Department of Justice Toronto, Ontario FOR THE RESPONDENT