2022 FC, 2022 FC 1221

Date: 20220823 Docket: T-795-16 Citation: 2022 FC 1221 Ottawa, Ontario, August 23, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: ROMEO V. LIM TIMOTHY E. LEAHY Applicants and THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP Respondent REASONS AND ORDER [ 1 ] By a notice of motion filed on December 10, 2021, Mr. Romeo V. Lim and Mr. Timothy E. Leahy (the “Applicants”) appeal, pursuant to the Federal Courts Rules , S.O.R. / 98-106 (the “ Rules ”) from the Order of Prothonotary Horne, dated December 6, 2021.

In that Order, the Prothonotary dismissed the within proceeding for delay and imposed a costs award of $1,500.00. [ 2 ] The Order was made relative to an application for judicial review filed by the Applicants on May 18, 2016 seeking declaratory and other relief against the Minister of Immigration, Refugees, and Citizenship (the “Respondent”) in respect of an alleged breach of the Privacy Act , R.S.C. 1985, c.

P-21 .The alleged breach arose from the release of personal information relating to an application for Humanitarian and Compassionate (“H and C”) relief, pursuant to the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , made by the Applicant Mr. Lim. [ 3 ] An application for leave and judicial review was filed in respect of the negative H and C decision in cause number IMM-2144-16. [ 4 ] Upon their appeal, the Applicants seek, among other things, an order quashing the Order of the Prothonotary and an order of costs against the Prothonotary " “in the amount comparable to the costs he ordered against Mr.

Leahy; viz 128% of his monthly salary” " . [ 5 ] The Applicants filed a motion record, including the affidavit of the Applicant Mr. Leahy and Written Representations. [ 6 ] The Respondent also filed a motion record. It included the affidavit of Ms. Alexandra Villani, a legal assistant with the Department of Justice in Toronto, the office of counsel for the Respondent. In her affidavit, Ms. Villani referred to a number of documents that were attached as exhibits.

These documents relate to the history of the within proceeding and include a copy of the Index of recorded Entries for this proceeding. [ 7 ] The motion record of the Respondent also includes written representations. [ 8 ] The Applicants filed a reply memorandum. [ 9 ] On May 18, 2016, the Applicants filed their application for judicial review, the originating document in this proceeding, relative to a complaint to the Privacy Commissioner. [ 10 ] According to the facts set out in the Order of December 6, 2021 and in the exhibits attached to the affidavit of Ms.

Villani, a Notice of Status Review pursuant to the Rules , was issued on October 20, 2021 by Prothonotary Aalto. [ 11 ] The Applicants filed their response to the Notice on October 29, 2021. [ 12 ] The Respondent filed his response to the Notice on November 5, 2021. [ 13 ] The subject of the Notice of Status Review was the prosecution of the within application for judicial review which, according to the Index of Recorded Entries, was stayed by Direction of Prothonotary Aalto on November 29, 2016.

The Direction also provided that the Respondent was to communicate with the Canada Border Services Agency about the existence of certain documents requested by the Applicants. [ 14 ] By letter dated January 12, 2017, the Respondent responded to the Direction of Prothonotary Aalto. [ 15 ] That was the last entry on the Index of Recorded Entries until the issuance of the Notice of Status Review on October 20, 2021. [ 16 ] Exhibit “D” to the affidavit of Ms. Villani is the letter, dated July 23, 2018, forwarding the “Report of Findings” from the Privacy Commissioner to the Applicants.

The letter says that the Privacy Commissioner " “determined that both complaints are well-founded ” " (emphasis in original). [ 17 ] In his Order, Prothonotary Horne found that in responding to the Notice of Status Review, the Applicants had not explained the reason for the delay in proceeding with their application for judicial review and did not provide a

schedule for next steps. In awarding costs in favour of the Respondent, the Prothonotary commented on the allegations of impropriety against Prothonotary Aalto and other

members of the Court, referring as well to a decision of the Federal Court of Appeal involving the Applicants where the Federal Court ofAppeal expressly disapproved of such allegations. [18] Upon this appeal, the Applicants argue that the Order of Prothonotary Horne is "“perverse, malicious and defamatory”" because itignored the stay of proceedings that had been directed by Prothonotary Aalto and also ignored outstanding motions that were also stayedby Prothonotary Aalto. [19] On November 29, 2016, two motions were before Prothonotary Aalto.

The first was a motion filed by the Applicants on October 26,2016, seeking an order to compel the Respondent to produce certain documents, and other relief. The second was a motion filed by theRespondent on October 26, 2016, seeking to strike out the Applicants’ application for judicial review. [20] The Applicants also challenge the costs award made by the Prothonotary. [21] The Respondent, in his submissions in response to the Applicants’ arguments, says that the Applicants "“have not demonstrated thatthe Order dismissing this matter should be reconsidered, set aside or varied”".

He pleads that the Applicants’ motion be dismissed, againwith costs in his favour. [22] The first issue for consideration is the nature of the Applicants’ motion. [23] In my opinion, the Motion is an appeal, pursuant to Rule 51, from the Order of Prothonotary Horne.

However, the submissions ofthe Respondent seem to address reconsideration of an order, within the scope of Rule 397, or setting aside or variance of an order, withinthe scope of Rule 399. [24] There is a difference between an “appeal”, pursuant to Rule 51, and motions taken under Rules 397 and 399. [25] Upon an appeal, the order of a prothonotary is reviewable upon the standard set out in the decision in Hospira Healthcare Corp. v. Kennedy Institute of Rheumatology (2016), 2016 FCA 215 , 402 D.L.R. (4th) 497 (FCA).

In that decision, the Federal Court ofAppeal said that reviewing courts should intervene in the discretionary decision of a prothonotary when the prothonotary has made anerror of law or has exercised his or her discretion upon a wrong principle or where he or she has misapprehended the evidence such thatthere is a palpable and overriding error. In the later case, the reviewing court is to apply the standard of review applicable to decisions oftrial judges, as set out by the Supreme Court of Canada in Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. [26] The power to reconsider is limited to the circumstances identified in rule 397. The Rule provides as follows: Motion to reconsider 397

(1) Within 10 days after themaking of an order, or withinsuch other time as the Court mayallow, a party may serve and filea notice of motion to request thatthe Court, as constituted at thetime the order was made, re-consider its terms on the groundthat Réexamen 397

(1) Dans les 10 jours aprèsqu’une ordonnance a été rendueou dans tout autre délai accordépar la Cour, une

partie peutsignifier et déposer un avis derequête demandant à la Cour quia rendu l’ordonnance, tellequ’elle était constituée à cemoment, d’en examiner denouveau les termes, maisseulement pour l’une ou l’autredes raisons suivantes : (

a) the order does not accordwith any reasons given for it; or

a) l’ordonnance ne concorde pasavec les motifs qui, le caséchéant, ont été donnés pour lajustifier; (

b) a matter that should havebeen dealt with has beenoverlooked or accidentallyomitted.

b) une question qui aurait dû êtretraitée a été oubliée ou omiseinvolontairement Mistakes

(2) Clerical mistakes, errors oromissions in an order may at anytime be corrected by the Court."" Erreurs

(2) Les fautes de transcription,les erreurs et les omissionscontenues dans les ordonnancespeuvent être corrigées à toutmoment par la Cour." " [27] According to the decision in Sharma v. Canada (Revenue Agency), 2020 FCA 203, a motion for reconsideration does not operate asan appeal in disguise. [28] Rule 399 describes the circumstances where the court can set aside or vary an order. Rule 399 provides as follows:

Setting aside of stay Annulation sur preuve prima facie 399

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

a) toute ordonnance rendue sur requête ex parte ; (

b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding,

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

partie qui n’a pas comparu par suite d’un événement fortuit if the party against whom the order is made discloses a prima facie case why the order should not have been made. ou d’une erreur ou à cause d’un avis insuffisant de l’instance. Setting aside or variance

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

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

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

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

b) where the order was obtained by fraud.

b) l’ordonnance a été obtenue par fraude. 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. " " 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. " " [ 29 ] In my opinion, these circumstances do not arise in the present case. The Applicants’ motion seeks to appeal the Order of Prothonotary Horne and the Respondent’s arguments largely fail to respond to the principal argument raised by the Applicants.

That argument focuses on the failure of the Prothonotary to acknowledge the stay of proceedings ordered by Prothonotary Aalto on November 29, 2016, and the effect of that Order upon the subsequent prosecution of the underlying application for judicial review. [ 30 ] I acknowledge that in disposing of responses to a Notice of Status Review, a prothonotary is making a discretionary decision. I refer to Rule 382. 1(2) which provides as follows: Review by the Court

(2) A judge or prothonotary shall conduct a status review and may Examen de la Cour

(2) Un juge ou un protonotaire procède à l’examen de l’état de l’instance et peut : (

a) if he or she is not satisfied that the proceeding should continue, dismiss the proceeding; or

a) s’il n’est pas convaincu que l’instance doit se poursuivre, la rejeter;

(

b) if he or she is satisfied that the proceeding should continue, order that it continue as a specially managed proceeding and may make an order under rule 385. " "

b) s’il est convaincu que l’instance doit se poursuivre, ordonner qu’elle se poursuive à

titre d’instance à gestion spéciale et rendre toute ordonnance prévue à la règle 385. " " [ 31 ] Prothonotary Horne commented upon the lack of substance in the Applicants’ response to the Notice of Status Review.

He also commented, unfavourably, upon the language of that response and to rulings from the Federal Court of Appeal in matters involving the Applicants. [ 32 ] However, in my opinion, Prothonotary Horne did not deal with the Direction of Prothonotary Aalto, staying the underlying application for judicial review and staying certain motions. [ 33 ] From my review of the Index of Recorded Entries and of the Direction made by Prothonotary Aalto, the stay was entered by the Court.

In my opinion, the stay should have been acknowledged by the Court, in ruling upon the Notice of Status review. [ 34 ] In my opinion, the failure to do so means that the Order of Prothonotary Horne was made without regard to the evidence and does not meet the applicable standard of review. [ 35 ] I refer to paragraphs 27 and 66 of Hospira , supra , which discuss the applicable standard of review, as follows: [27] …A discretionary decision made by a prothonotary is clearly wrong, and thus reviewable on appeal by a judge, where it is based: (1) upon a wrong principle – which implies that correctness is required for legal principles – and (2) upon a misapprehension of facts – which seems to be the equivalent of the “overriding and palpable error” criterion of the Housen standard if it caused the prothonotary’s decision to be “clearly wrong”. … [66] In Housen , the Supreme Court enunciated the standard of review applicable to decisions of trial judges.

More particularly, it concluded that with respect to factual conclusions reached by a trial judge, the applicable standard was that of palpable and overriding error.

It also stated that with respect to questions of law and questions of mixed fact and law, where there was an extricable legal principle at issue, the applicable standard was that of correctness (paragraphs 19 to 37 of Housen ). [ 36 ] It follows that the Applicants’ appeal will be allowed and the Order of Prothonotary Horne will be set aside, in its entirety, and the matter remitted to another prothonotary for disposition. [ 37 ] I note that the Applicants seek costs upon this motion, specifically against Prothonotary Horne. [ 38 ] There is no basis in law for such an order.

Costs in the Court lie wholly in the discretion of the Court, pursuant to Rule 400(1). Costs may be awarded for or against parties, not against judicial officers. [ 39 ] The submissions of the Applicants in respect of costs are inappropriate. [ 40 ] In the exercise of my discretion, pursuant to the Rules , there will be no Order as to costs in respect of this motion. ORDER in T-795-16 THIS COURT’S ORDER is that: 1. The motion is granted, the Order of December 6, 2021 is set aside in its entirety, and the matter is remitted to another prothonotary for disposition. 2.

In the exercise of my discretion, there will be no Order as to costs in respect of this motion. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-795-16

STYLE OF CAUSE: ROMEO V. LIM AND TIMOTHY E. LEAHY v THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES REASONS and order: heneghan j. DATED: AUGUST 23, 2022 WRITTEN REPRESENTATIONS BY : ROMEO V. LIM and TIMOTHY E. LEAHY For The ApplicantS VERONICA CHAM For The Respondent SOLICITORS OF RECORD : ROMEO V. LIM and TIMOTHY E. LEAHY TORONTO, ONTARIO For The ApplicantS ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO For The Respondent