VINOD KUMAR RAINA Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 318

Federal Court Cour fédérale Date: 20110316 Docket: IMM-5979-09 Citation: 2011 FC 318 Ottawa , Ontario, March 16, 2011 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: VINOD KUMAR RAINA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] By Notice of Motion dated January 21, 2011, the Minister of Citizenship and Immigration (the “Respondent”) seeks reconsideration of the Order made by this Court on January 11, 2011. By that Order, the Court allowed the application for judicial review brought by Mr.

Vinod Kumar Raina (the “Applicant”) from the decision dated November 4, 2009, made by the Immigration and Refugee Board, Refugee Protection Division. The Respondent seeks reconsideration of that Order pursuant to Rules 35(2) (a), 397 and 399 of the Federal Courts Rules , SOR/98-106 (the “Rules”). [ 2 ] By submissions filed on January 26, 2011, the Applicant opposes the Respondent’s motion and arguments. The Respondent filed his reply submissions on January 31, 2011. [ 3 ] Rule 397(1) allows a party to seek reconsideration of an Order where a Court, not a party, has overlooked a matter. Rule 397(1)(

a) provides as follows:

(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that (

a) the order does not accord with any reasons given for it; or 397.

(1) Dans les 10 jours après qu’une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une

partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l’ordonnance, telle qu’elle était constituée à ce moment, d’en examiner de nouveau les termes, mais seulement pour l’une ou l’autre des raisons suivantes :

a) l’ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier; [ 4 ] The Respondent also relies on Rule 399 , in asking for reconsideration of the Order that was issued on January 11, 2011. Rule 399 provides as follows:

(1) On motion, the Court may set aside or vary an order that was made (

a) ex parte; or (

b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding, if the party against whom the order is made discloses a prima facie case why the order should not have been made. Setting aside or variance

(2) On motion, the Court may set aside or vary an order (

a) by reason of a matter that arose or was discovered subsequent to the making of the order; or (

b) where the order was obtained by fraud. Effect of order

(3) Unless the Court orders otherwise, the setting aside or variance of an order under subsection (1) or (2) does not affect the validity or character of anything done or not done before the order was set aside or varied. 399.

(1) La Cour peut, sur requête, annuler ou modifier l’une des ordonnances suivantes, si la

partie contre laquelle elle a été rendue présente une preuve prima facie démontrant pourquoi elle n’aurait pas dû être rendue :

a) toute ordonnance rendue sur requête ex parte;

b) toute ordonnance rendue en l’absence d’une

partie qui n’a pas comparu par suite d’un événement fortuit ou d’une erreur ou à cause d’un avis insuffisant de l’instance. Annulation

(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l’un ou l’autre des cas suivants :

a) des faits nouveaux sont survenus ou ont été découverts après que l’ordonnance a été rendue;

b) l’ordonnance a été obtenue par fraude. Effet de l’ordonnance

(3) Sauf ordonnance contraire de la Cour, l’annulation ou la modification d’une ordonnance en vertu des paragraphes (1) ou (2) ne porte pas atteinte à la validité ou à la nature des actes ou omissions antérieurs à cette annulation ou modification. [ 5 ] The thrust of the Respondent’s submissions is that in allowing the application for judicial review the Court failed to deal with the issue of certification of a question, relative to matters arising under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “Act”), as governed by subsection 74(

d) of that Act, as follows:

74. Judicial review is subject to the followingprovisions: … (

d) an appeal to the Federal Court of Appeal maybe made only if, in rendering judgment, the judgecertifies that a serious question of generalimportance is involved and states the question. 74. Les règles suivantes s’appliquent à lademande de contrôle judiciaire :

d) le jugement consécutif au contrôle judiciairen’est susceptible d’appel en Cour d’appelfédérale que si le juge certifie que l’affairesoulève une question grave de portée générale eténonce celle-ci. [6] The power to reconsider pursuant to Rule 397, is a narrow one. It is not an opportunity for the Court to entertain an appealfrom its own order. In that regard, I refer to the decision in Man v. Canada (Minister of Citizenship and Immigration), 2005 FC 332. [7] In Tran v.

Canada (Minister of Citizenship and Immigration), 2007 FC 1249 the Court determined that Rule 397 does notoperate to allow the Minister to bring a motion for the purpose of adding a question for certification. At para. 8 of that decision, JusticeSimpson held as follows: In my view, Rule 397(1) does not permit the Minister to move to add a question for certification to a judgment. [8] I agree with the Court’s conclusion in Tran. In Varela v.

Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, the Federal Court of Appeal said as follows, at para. 29: Additionally, a serious question of general importance arises from the issues in the case and not from the judge’s reasons. The judge,who has heard the case and has had the benefit of the best arguments of counsel on behalf of both parties, should be in a position toidentify whether such a question arises on the facts of the case, without circulating draft reasons to counsel.

Such a practice lends itself,as it did in this case, to a “laundry list” of questions, which may or may not meet the statutory test. In this case, none of them did. [9] In my opinion, the decision in Varela reinforces the rule that questions for certification should be proposed before thejudge’s reasons are rendered, meaning that Rule 397 does not allow a party to bring a motion for reconsideration for the purpose ofproposing a certified question. [10] Rule 399, likewise, has a narrow scope of application.

I refer to the Federal Court of Appeal’s decision in TMR Energy Ltd. v.State Property Fund of Ukraine, 2005 FCA 28 , [2005] 3 F.C.R. 111 and Roxford Enterprises v. Cuba, 2003 FCT 763 ,[2003] 4 F.C. 1182. In TMR Energy, the Federal Court of Appeal, at para. 31, held as follows: Rule 399 allows the Court to set aside or vary an order that was made ex parte if the party against whom the order is made discloses aprima facie case why the order should not have been made. [11] The Order that is the subject of the Minister’s motion was not made ex parte.

There is no allegation or issue of fraud relativeto the Order of January 11, 2011. [12] The only basis upon which the Respondent could succeed in his motion pursuant to Rule 399 is to show that, pursuant to Rule399(2)(a), a “matter” arose or was discovered subsequent to the making of the decision. [13] The meaning of a new “matter” for the purpose of Rule 399 was discussed by the Court in AB Hassle v. Apotex Inc. (2008), 2008 FC 184 , 65 C.P.R. (4th) 332, affirmed (2008), 2008 FCA 416 , 73 C.P.R. (4th) 428, at para. 36 as follows: Where a matter of the type referred to in paragraph 399(2)(

a) already was in existence but was only discovered after the judgment wasissued, the Court has established a stringent three-fold test which a party must meet before consideration is to be given to setting aside ajudgment. The Federal Court of Appeal set out such a test in Ayangma v. R., 2003 FCA 382 (F.C.A.) at paragraph 3:

3 The jurisprudence establishes three conditions which must be satisfied before the Court will intervene: 1 - the newly discovered information must be a "matter" with the meaning of the Rule; 2 - the "matter" must not be one which was discoverable prior to the making of the order by the exercise of due diligence; and 3 - the "matter" must be something which would have a determining influence on the decision in question. [ 14 ] In AB Hassle , the Federal Court held that case law made after the Court’s decision cannot be considered a new “matter” for the purpose of Rule 399(2)(a).

Given the Court’s conclusion in AB Hassle , and the Federal Court of Appeal’s holding in Varela , it is my opinion that the Court’s reasons in a particular case cannot be a new “matter” for the purpose of varying an order to allow the proposal of a certified question, pursuant to paragraph 399(2) (

a) of the Rules . [ 15 ] The Respondent’s attempt to characterize the opportunity to prepare a question for certification as a new “matter” cannot succeed. [ 16 ] At the end of the hearing of the within application for judicial review, counsel for both parties were given an opportunity to propose a question for certification. This fact is recorded both in the Minutes of the hearing and in the Index of Recorded Entries. [ 17 ] This is a complete answer to the motion under both Rules 397 and 399.

The Minister was given the opportunity to propose a question for certification, he chose not to do so. [ 18 ] The motion is dismissed with costs to the Applicant. If the parties cannot agree on the costs, brief submissions can be made in accordance with a Direction to be issued. ORDER THIS COURT ORDERS that the motion is dismissed with costs to the Applicant. If the parties cannot agree on costs, brief submissions can be made in accordance with a Direction to be issued. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5979-09

STYLE OF CAUSE: VINOD KUMAR RAINA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Motion Dealt with in Writing Without Appearance of Parties DATE OF HEARING: Motion in Writing REASONS FOR ORDER AND ORDER: HENEGHAN J. DATED: March 16, 2011 APPEARANCES : Krassina Kostadinov FOR THE APPLICANT Manuel Mendelzon FOR THE RESPONDENT SOLICITORS OF RECORD : Waldman & Associates Barristers and Solicitors Toronto , ON FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto, ON FOR THE RESPONDENT