2023 FC, 2023 FC 1348

Date: 20231010 Docket: IMM-7320-22 Citation: 2023 FC 1348 Ottawa, Ontario, October 10, 2023 PRESENT: The Honourable Mr. Justice Roy BETWEEN: DANIEL COBANI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] Counsel for the Minister sought from the Court a Judgment on Consent on October 4, 2023. Counsel contended that the Refugee Appeal Division [RAD] made an unreasonable determination concerning the refugee status of the Applicant, Mr. Daniel Cobani. The informal request spoke of a failure by the RAD to address some of the relevant evidence before it.

The Judgment on Consent, in draft form, granted the application for judicial review and it sent the matter back for redetermination to a different RAD panel. [ 2 ] However, three weeks earlier (September 13, 2023), Counsel for the Applicant had already discontinued his application for leave and judicial review, in the full knowledge of the counsel for the Minister. [ 3 ] When advised by the Registry of the existence, on the record, of a notice of discontinuance, Counsel for the Minister proposed first that the said notice be ignored.

Counsel for the Applicant then proposed that it be withdrawn. [ 4 ] A case management conference took place on October 10, 2023. The parties were advised by the Court that it was very much unclear whether it had jurisdiction to ignore a notice of discontinuance or to endorse that it be withdrawn.

The Court referred to the Federal Courts Practice (Thomson Reuters, 2023) where the authors Saunders, Rennie and Garton state in their annotation regarding Rule 165 that " “(n)either leave of the Court nor consent of the other parties is required to file a discontinuance” " . [ 5 ] There is evidently a legal effect to a discontinuance. The authors Letarte, Veilleux, LeBlanc and Rouillard-Labbé in their Recours et procédure devant les Cours fédérales (LexisNexis, 2013) note that the discontinuance of an application puts an immediate end to the proceedings.

Furthermore, the discontinuance brings to an end the proceedings definitely, that is for good ( " “Le demandeur qui se désiste d’une instance y met fin définitivement” " , para 3-106). [ 6 ] Counsel for the parties did not offer any alternative but for the Court to decline to grant the Judgment on Consent in view of the discontinuance of the proceedings in file IMM-7320-22. [ 7 ] I understand that the Applicant may re-apply for leave and judicial review, with an attendant motion for an extension of time, in order for the Court to have jurisdiction over the matter.

The Court did not express a view with regards to the suggestion made by Counsel for the Applicant, which was not opposed by Counsel for the Minister. [ 8 ] As a result, the informal motion for Judgment on Consent must be dismissed. There will be no costs awarded (Rule 402). ORDER in IMM-7320-22 THIS COURT ORDERS: 1 . The informal motion for Judgment on Consent is dismissed. 2 . No costs are awarded. "Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-7320-22 STYLE OF CAUSE: DANIEL COBANI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: October 10, 2023 ORDER AND REASONS: ROY J. DATED: october 10, 2023 APPEARANCES : David Yerzy For The Applicant Pavel Filatov For The Respondent SOLICITORS OF RECORD : David Yerzy Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent