2023 FC, 2023 FC 1203

Date: 20230907 Docket: IMM-476-23 Citation: 2023 FC 1203 St. John’s, Newfoundland and Labrador, September 7, 2023 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: MANIJEH MOHAMMADIHA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS AND ORDER [ 1 ] By a Notice of Motion filed on April 17, 2023, for consideration without personal appearance pursuant to Rule 369 of the Federal Courts Rules , S.O.R./98-106 ( the “ Rules ”),Ms. Manijeh Mohammadiha ( the “Applicant”) seeks an Order granting her son Mr.

Fereydoun Memarzanjany “permission” to represent her upon the prosecution of the within Application for Leave and Judicial Review. [ 2 ] The Applicant incorrectly names “The Minister of Immigration, Refugees and Citizenship” as the Respondent. There is no such Minister; the Minister of Citizenship and Immigration is the correct Respondent and the style of cause is amended accordingly, with immediate effect. [ 3 ] In support of the Motion, the Applicant filed her affidavit signed electronically in Istanbul, Turkey on April 17, 2023.

Apparently, the affidavit was written in the Persian language. [ 4 ] The Applicant also filed the affidavit of Mr. Memarzanjany, dated April 10, 2023. In his affidavit, Mr. Memarzanjany deposed that he " “will faithfully translate orally the affidavit … for the deponent to the best of my skill and understanding” " . [ 5 ] The Applicant resides in Istanbul, Turkey.

By an Application for Leave and Judicial Review filed on January 12, 2023, she seeks judicial review of a decision refusing her application for a study permit, made pursuant to the Immigration and Refugee Protection Act , S.C. 2001, c. 27 and the Immigration and Refugee Protection Regulations , S.O.R./2002-227 . [ 6 ] Mr.

Memarzanjany, the Applicant’s son, deposed that he is not a lawyer, that he has assisted the Applicant with the within proceeding by preparing the Application for Leave, translating documents from the Persian language to the English language and from the English language to the Persian language, and with " “handling her English communications” " with Counsel for the Minister of Citizenship and Immigration (the “Respondent”), the Registry of the Court, and with the Court. [ 7 ] Mr.

Memarzanjany also deposed that he is familiar with the judicial review process of this Court since he " “successfully” " settled his own Application for Leave and Judicial Review in cause number IMM-536-23. [ 8 ] The Motion is supported by Written Representations dated April 17, 2023, in the name of the Applicant but signed in Montreal, Quebec.

In these representations, the Applicant submits that there is a " “long-established principle” " in Canadian law that recognizes the right of non-lawyers to appear in a Court and to make representations on behalf of a party, relying among others, upon the decision of the Supreme Court of Canada in Green v. Law Society of Manitoba , 2017 SCC 20 . [ 9 ] The Applicant also argues that Mr.

Memarzanjany is " “committed” " to represent her according to a high standard of " “professionalism and ethics” " . [ 10 ] The Respondent opposes the Motion.First, he challenges the affidavit of the Applicant on the grounds that it does not comply with Rule 80(2.1).He submits that the translation by a family member does not meet the requirements of a " “competent and independent interpreter” " .

He asks that the Application for Leave and Judicial Review be dismissed on this basis. [ 11 ] Next, the Respondent argues that the residual discretion of the Court to allow a non-lawyer to represent the Applicant is not engaged, in the absence of evidence of " “unusual or exceptional circumstances” " . He relies, in this regard, upon the decision in Xanthopoulos v. Canada (Attorney General) , 2019 FC 1609 . [ 12 ] I acknowledge the Respondent’s objections to the affidavit filed by the Applicant. It clearly does not comply with Rule 80 (2.1) which provides as follows:

" Affidavit by deponent who does not understand an official language " "

(2.1) Where an affidavit is written in an official language for a deponent who does not understand that official language, the affidavit shall " " (

a) be translated orally for the deponent in the language of the deponent by a competent and independent interpreter who has taken an oath, in Form 80B, as to the performance of his or her duties; and " " (

b) contain a jurat in Form 80C. " " " " Affidavit d’une personne ne comprenant pas une langue officielle " " (2.1) " " Lorsqu’un affidavit est rédigé dans une des langues officielles pour un déclarant qui ne comprend pas cette langue, l’affidavit doit : " " a) " " être traduit oralement pour le déclarant dans sa langue par un interprète indépendant et compétent qui a prêté le serment, selon la formule 80B, de bien exercer ses fonctions; " " b) " " comporter la formule d’assermentation prévue à la formule 80C.

" [ 13 ] I agree with the Respondent’ s objections about this affidavit, but I do not agree that failure to comply with Rule 80 (2.1) merits dismissal of the Application for Leave and Judicial Review. The Respondent overreaches with that submission, considering that the present motion relates to the issue of the representation of the Applicant by her son, Mr. Memarzanjany, and not to the disposition of leave. [ 14 ] The Rules address representation of a party in the Federal Court. Rule 119 and 122 are relevant and provide as follows: " Individuals " " 119

(1) Subject to rule 121, an individual may act in person or be represented by a solicitor in a proceeding. " " Limited-scope representation " "

(2) Except in respect of a party referred to in rule 121, representation by a solicitor may be limited in scope to only those aspects of the proceeding that are within a solicitor’s mandate that is agreed to by the individual and the solicitor. " " […] " " Rights and obligations " " 122 Subject to paragraphs 146(1)(

b) and 152(2)(

a) and unless the Court orders otherwise, " " (

a) a party who is not represented by a solicitor, or a person who is authorized under rule 120 to represent a party, shall do everything required, and may do anything permitted, to be done by a solicitor under these Rules ; and " " (

b) a party who is represented by a solicitor who is providing limited-scope representation shall do everything required, and may do anything permitted, to be done by a solicitor under these Rules in respect of those aspects of the proceeding that are not within the solicitor’s mandate. " " Personne physique " " 119 (1) " "

Sous réserve de la règle 121, une personne physique peut agir seule ou se faire représenter par un avocat dans toute instance. " " Mandat limité " " (2) " " Sauf en ce qui concerne la

partie visée à la règle 121, la représentation par avocat peut être limitée aux aspects de l’instance sur laquelle l’avocat et la personne physique se sont entendus par mandat. " " […] " " Droits et obligations " " 122 " "

Sous réserve des alinéas 146(1)

b) et 152(2)

a) et sauf ordonnance contraire de la Cour : " " a) " " la

partie qui n’est pas représentée par un avocat ou la personne autorisée à représenter une

partie conformément à la règle 120 accomplit elle-même tout ce que les présentes règles exigent d’un avocat ou permettent à un avocat de faire; " " b) " " la

partie représentée par un avocat pour un mandat limité accomplit elle-même tout ce que les présentes règles exigent d’un avocat ou permettent à un avocat de faire pour les aspects de l’instance qui ne font pas

partie du mandat. " [ 15 ] The Rules do not provide for representation of a party by a non-lawyer, whether a family member or otherwise.However, the Court, which controls its own processes, may in the exercise of its discretion, allow such representation, depending on the circumstances prevailing. [ 16 ] I am not persuaded by the submissions of the Applicant that the Court should exercise its discretion to allow Mr. Memarzanjany to represent her upon this proceeding. The fact that he filed his own application for Leave and Judicial Review does not qualify him to act for the Applicant.

The Applicant is outside Canada. In these circumstances, she cannot represent herself in this Court. [ 17 ] In the usual course, the Applicant would engage a lawyer to act on her behalf. There is no evidence that she is unable to do so.

[ 18 ] Accordingly, the Motion will be dismissed. In the exercise of my discretion under Rule 400, there will be no Order as to costs. ORDER in IMM-476-23 THIS COURT ORDERS that the motion is dismissed, without costs. The style of cause is amended to show " “the Minister of Citizenship and Immigration” " as the Respondent. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-476-23 STYLE OF CAUSE: MANIJEH MOHAMMADIHA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT ST.

JOHN’S, NEWFOUNDLAND AND LABRADOR PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES REASONS AND ORDER: HENEGHAN J. DATED: SEPTEMBER 7, 2023 WRITTEN REPRESENTATIONS BY : Manijeh Mohammadiha FOR THE APPLICANT Alicia Dueck-Read FOR THE RESPONDENT SOLICITORS OF RECORD : Attorney General of Canada Winnipeg, Manitoba FOR THE RESPONDENT