2023 FC, 2023 FC 1304

Date: 20230927 Docket: IMM-8307-23 Citation: 2023 FC 1304 Ottawa, Ontario, September 27, 2023 PRESENT: The Honourable Mr.

Justice Gleeson BETWEEN: SOGAND ABBASPOOR ZANJANI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The Respondent’s motion, brought in writing pursuant to Rule 369 of the Federal Courts Rules, SOR 98-106 [ Federal Courts Rules ], seeks an order striking the Application for Leave and for Judicial Review as an abuse of process on the grounds that it is identical to that in Court Docket IMM-5853-23 [Original Application] and is an attempt to skirt the rules applicable to the Original Application. [ 2 ] The facts are not in dispute: A .

On May 8, 2023, the Applicant filed an Application for Leave and for Judicial Review in the Original Application, in which they sought an order of mandamus in relation to a March 2022 application for a study permit. The Applicant indicated that a copy of the Tribunal record had not been received. B . The Registry requested the Tribunal’s reasons and the Tribunal provided a response in accordance with Rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 .

The Tribunal’s response was received by the Registry on May 23, 2023, stating that no decision having been taken on the temporary resident visa application, no reasons for decision exist. C . The thirty-day period following receipt of the Rule 9 notice to perfect the Original Application expired on June 23, 2023. The Application was not perfected nor did the Applicant seek an extension of time to do so. D . On June 29, 2023, the Applicant filed this Application [Current Application], Docket Number IMM-8307-23.

It appears identical to the Original Application, except that the Applicant indicates reasons have been received from the Tribunal. E . The Original Application was then wholly discontinued by way of Notice of Discontinuance dated June 30, 2023, and served and filed on July 5, 2023. [ 3 ] In written submissions, the Applicant refers to “the affidavit deposed by the applicant’s counsel in support of their response to the respondent’s motion to strike.” An Affidavit has not been filed with the Applicant’s responding motion record.

The Applicant has not filed any evidence on this motion. [ 4 ] Although the Federal Courts Rules do not expressly address the striking of an Application, it is not in doubt that the Court possesses the jurisdiction to strike proceedings at a preliminary stage. Rule 221 of the Federal Courts Rules provides for the striking of pleadings in an action.

In turn, the jurisprudence recognizes that in exceptional circumstances, and where an Application is bereft of any possibility of success or is an abuse of process, the Court may strike an Application ( Krah v Canada (Citizenship & Immigration) , 2019 FC 361 at para 14 ; and Turp v Canada (Foreign Affairs) , 2018 FC 12 at para 5 ). The discretion to strike a proceeding as an abuse of process recognizes the Court’s inherent jurisdiction to control its own processes and prevent the misuse of its own procedure in a way that would bring the administration of justice into disrepute.

It is a flexible discretion that is not limited by specific requirements ( Toronto (City) v CUPE, Local 79 , 2003 SCC 63 at para 37 ). [ 5 ] The Respondent argues that the filing of the Current Application followed by the discontinuance of the Original Application circumvents the Court’s rules of procedure and is an abuse of process.

The Applicant, having failed to perfect the Original Application within the time prescribed by the Federal Courts Rules , was required to satisfy the Court that an extension of time to do so was in the interests of justice. [ 6 ] The Applicant argues that the matters raised in this motion are moot because the original Application has been discontinued.

I disagree. [ 7 ] In Philipos v Canada (Attorney General), 2016 FCA 79 [ Philipos ], the Federal Court of Appeal noted that discontinuing is an “economical procedure for terminating proceedings that are no longer in dispute or worthy of prosecution” [emphasis added], that “finality matters” and that strictly enforcing the finality of proceedings is of importance to the administration of justice ( Philipos at para 17 ). Only circumstances striking at the root of a decision to discontinue can allow a discontinued proceeding to continue ( Philipos at paras 18 and 20 ).

The issues raised on this motion arise because the Current Application, which is substantively identical to the Original Application, undermines the expectation of finality that arose when the Applicant served and filed the Notice of Discontinuance. The

motion is not moot. [ 8 ] I recognize, particularly where an Applicant seeks mandamus, that circumstances might well evolve after the filing of a discontinuance warranting an Applicant to seek either to re-open a discontinued proceeding or to commence a fresh application. However, no such circumstances have been disclosed.

Instead, the circumstances indicate that the sole basis for the Applicant commencing an identical Application and then discontinuing the Original Application was to avoid the requirement to seek an extension of time to perfect the Original Application. [ 9 ] The Applicant has filed no evidence to explain the reasons for the discontinuance. In written submissions, the Applicant’s counsel does not appear to take issue with the Respondent’s assertion that the commencement of the Current Application and filing of the discontinuance was intended to avoid bringing a motion for an extension of time.

Instead, the Applicant’s counsel submits that the filing of the Application Record was delayed to allow the Respondent time to decide on the visa application and that no improper purpose motivated the Applicant. [ 10 ] A delay in perfecting the Application as a means of potentially resolving the Application is a tactic that was clearly open to the Applicant, but it does not excuse the Applicant from complying with the rules or justify actions intended to circumvent the rules.

The Applicant’s actions, if unchecked, would essentially allow a party to usurp the Court’s ability to control its processes and determine whether applications should proceed in instances of non-compliance. Absent some justification for the Applicant’s conduct, I am satisfied that the filing of the Current Application amounts to an abuse of process and it is to be struck for that reason. [ 11 ] The striking of the Current Application is without prejudice to the Applicant’s right to bring a motion seeking to re-open the Original Application.

As was recently noted by Justice Russel Zinn in Adegbite v Canada (Citizenship and Immigration) , 2022 FC 145 [ Adegbite ], Philipos confirms that the Federal Courts have jurisdiction to regulate the opening and closing of their own files and details the principles to be applied by the Court when considering a motion to re-open a discontinued proceeding ( Adegbite at paras 6-8 , also see Virk v Canada (Citizenship and Immigration) , 2023 FC 143 at paras 26-32 ). [ 12 ] For the above reasons, the motion is granted. The Respondent has not sought costs and none will be ordered.

ORDER IN IMM-8307-23 THIS COURT ORDERS that : 1 . The motion is granted. 2 . The Application for Leave and for Judicial Review is struck as an abuse of process without prejudice to the Applicant’s right to bring a motion seeking to re-open the discontinued Application in Court Docket IMM-5853-23. 3 .

All without costs. blank “Patrick Gleeson” blank Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-8307-23 STYLE OF CAUSE: SOGAND ABBASPOOR ZANJANI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES order AND REASONS: GLEESON J. DATED: september 27, 2023 WRITTEN REPRESENTATIONS BY: Oluwadamilola Asuni For The Applicant

Willemien Kruger For The Respondent SOLICITORS OF RECORD : Oluwadamilola Asuni Saskatoon, Saskatchewan For The APPLICANT Attorney General of Canada Saskatoon, Saskatchewan FOR THE respondent