PRACTICE |
Judgments and Orders |
Summary Judgment |
Chesters v. Canada (Minister of Citizenship and Immigration)
IMM-1316-97
2001 FCT 1374, Lutfy A.C.J.
6/12/01
6 pp.
On November 30, 2001 defendant requested special sitting on December 20 or 21, 2001 for hearing of motion for summary judgment--Action seeking declaration medical inadmissibility provision based on excessive demands on health or social services in Immigration Act, s. 19(1)(a)(ii) inconsistent with Charter, ss. 7, 15 and general damages--On December 18, 2000 trial date set for January 7, 2002--Motion for summary judgment triggered by Immigration and Refugee Protection Act, given royal assent on November 1, 2001, but not yet in force--According to defendant, plaintiff's claim moot because no longer medically inadmissible under s. 38(2) of new legislation--Also argued damages not recoverable for action taken pursuant to unconstitutional statute because retroactive remedy should not be available following determination of invalidity--Motion dismissed--To schedule hearing of motion for summary judgment two weeks prior to trial would unduly disrupt trial preparation--Federal Court Rules, 1998, r. 213(2) requiring defendant to move for summary judgment before time of trial fixed--Compliance with r. 213(2) should not be waived herein where original trial date set almost two years ago--After making offer to land plaintiff as part of proposed settlement, defendant moved for order action should not be heard as moot--Prothonotary dismissing that motion--Settlement proposal not unrelated to department's policy document entitled Exemptions from Excessive Demands Bars--This motion for summary judgment based on legislative enactment of that policy proposal--Factual basis for motion to dismiss action may have changed, but grounds same--Passage of new legislation not impacting on Prothonotary's finding, confirmed on appeal that question as to whether plaintiff entitled to damages because Charter rights violated remaining live controversy between parties--Action grounded on current legislation, not on new Immigration and Refugee Protection Act--With one month prior to trial, inconvenience, unfairness to plaintiff to interrupt preparation for trial by being required to defend second attempt to have action dismissed for mootness outweigh defendant's request to have special sitting assigned --Federal Court Rules, 1998, SOR/98-106, r. 213(2)-- Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a)(ii) (as am. by S.C. 1992, c. 49, s. 11)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 38.