Digests

Bcherrawy v. Canada (Minister of Citizenship and Immigration)

IMM-2190-02

2003 FC 1045, Noël J.

8/9/03

20 pp.

Principal proceeding application for judicial review of decision by Lise Gignac, Director, Investigations and Removals Division, Citizenship and Immigration Canada, of Montréal Centre, dated April 26, 2002, denying application for non-execution of performance bond in amount of $60,000 signed by applicant in case of Alphonse Chemali, her husband, who had violated condition of liberation-- Following change by respondent, claiming not $60,000 but $120,000, in letter dated April 29, 2003, this application became motion to amend, asking that letter of April 26, 2002 be cancelled and replaced by that of April 29, 2003-- Preliminary question to be answered whether René D'Aoust, new Director, Investigations and Removals Division, signed letter of August 29, 2003 when functus officio as to exercise of discretion conferred by Immigration Act (Act), s. 104, since Lise Gignac had signed decision on same matter in her letter of April 26, 2002--Kind of decision under review one of decisions taken daily by public servants acting for and on behalf of Minister--In any given case, circumstances may change and consequently decisions have to be amended or changed completely--Although no provision for power of review, Parliament has not made this kind of decision subject to any system of appeal--Use by Parliament of verb "may" in Act, s. 104 implying discretion and possibility of reviewing if circumstances warrant--Administrator may change mind, and that is what appears to have had happened in case at bar--Thus, when René D'Aoust replaced Lise Gignac on April 29, 2003, not functus officio--There cannot be two administrative decisions differing in content on same matter from same official decision-maker--Court asked to conclude decision of April 26, 2002 void--Decision of April 29, 2003 cancelled decision of April 26, 2002--Writer took trouble to refer to it, contradict certain parts of it and provide exhaustive reasons--Brief decision of April 26, 2002 did not provide sufficient information about reasons justifying request for payment of $60,000 bond or about exercise of discretion mentioned in Act, s. 104--As decision of April 26, 2002, subject to this judicial review, void, what becomes of proceeding?--Respondent asked Court to maintain this proceeding and replace decision of April 26, 2002 by that of April 29, 2003 and to allow proceeding to take normal course of applications for leave and judicial review, thus enabling parties to refer to pleadings and documents already filed--For sake of fairness to applicant, Court authorizing use of this pleading in same case, replacing decision subject to judicial review by that of April 29, 2003, by amendment, if applicant should so request within 15 days of receipt of this judgment-- For these reasons, decision of Lise Gignac on April 26, 2002, decision subject to this judicial review, cancelled by decision of René D'Aoust on April 29, 2003, and in Court file No. IMM-2190-02 Court authorized applicant to substitute decision of April 29, 2003 for that of April 26, 2002, within 15 days of receipt of this judgment, informing Court of agreement in writing, otherwise proceeding would cease-- Immigration Act, R.S.C., 1985, c. I-2, s. 104.