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Mallappa Reddy Thimma Reddy (Appellant) v.
Minister of Manpower and Immigration, Solicitor General of Canada (Respondents)
and
Immigration Appeal Board (Mis -en-cause)
Court of Appeal, Jackett C.J.—March 19, 1973.
Practice—Application for judicial review—Motion for directions to settle contents of case—Views of parties should be indicated—Rule 1403.
An application for an order for directions under Rule 1403 with respect to the contents of a case on an application under section 28 of the Federal Court Act should not leave it to the Court to work out the contents of the case and the other requirements of the order without a concrete indica tion of the views of the respective parties as to what should be in the order.
MOTION. COUNSEL:
Federal Court Rule 324 for appellant and respondents.
SOLICITORS:
S. J. Smiley, Montreal, for appellant.
Deputy Attorney General of Canada for respondents.
JACKETT C.J.—This is an application in writ ing under Rule 324 for an order of directions determining the material to be used on a section 28 application and the place and time for pre sentation of the application.
Upon review of the material, it appears that there is no section 28 application properly before the Court and for that reason the applica tion is dismissed.
In explanation of that basis for dismissing the application for an order of directions, I must draw attention to the fact that the section 28 application, which was dated February 26, 1973 and filed in the Registry on February 27, 1973, refers, in paragraph 1, to a deportation order
made by a Special Inquiry Officer on November 12, 1972, refers, in paragraph 6 to an appeal from the deportation order that was dismissed by the Immigration Appeal Board on November 28, 1972, refers, in paragraph 7, to an applica tion to re-open the hearing of the appeal by the Immigration Appeal Board that was dismissed on February 21, 1973, and then seeks, by the concluding unnumbered paragraph, an order under section 28(1) of the Federal Court Act setting aside the "aforesaid order of deportation issued by the Respondents under Sect. 21 of the Immigration Appeal Board Act". Read literally, this section 28 application is meaningless because there is no prior reference in the application to any order made by the respond ents who, as appear from the style of cause, are the Minister of Manpower and Immigration and the Solicitor General, and, in any event, section 21 of the Immigration Appeal Board Act does not provide for a deportation order. If, on the other hand, the application is read as referring to the deportation order said to have been made by the Special Inquiry Officer on November 12, 1972, even if such a proceeding were open after the deportee had exercised his rights of appeal under section 11 of the Immigration Appeal Board Act, a section 28 application must be made within ten days of the making of the order desired to be set aside unless such time has been extended and there is no indication on this file that there has been any such extension although the deportation order is alleged to have been made over three months before the section 28 application was filed in the Court.
I wish to add a further note with regard to what has transpired on this file concerning a matter that would have been of importance if the section 28 application had been filed in time.
When the applicant filed his section 28 application, on February 27, 1973, he filed an affidavit of his solicitor indicating that he desired to make his application for directions under Rule 1403 in the month of April. Having regard to section 28(5) of the Federal Court Act, it is imperative that such application be made
"without delay;" and I, therefore, caused the Registry to write to the applicant's solicitor as follows:
This will confirm our telephone conversation of this day whereby I informed you that your Section 28 application in the above matter had been placed before the Chief Justice.
Having regard to Section 28(5) of the Federal Court Act, the Chief Justice indicated that if you do not make your application for directions within a very short time, you are liable to have the Section 28 application quashed for dilatoriness.
It is suggested that you confer with Mr. R. Leger and work out an application for directions before leaving on your holiday. Your application may then be submitted pur suant to Rule 324 of the Federal Court Rules.
For your convenience, I attach herewith copies of the relevant rules.
This application was, thereupon, brought as an application for directions in the following terms:
WHEREAS Appellant has made due application to review and set aside an order of the Immigration Appeal Board pursuant to Sect. 28(1) of the Federal Court Act and has duly filed the same in the office of the court at the City and District of Montreal on the 27th of February 1973;
WHEREAS Appellant desires direction to establish, among other, irregularities at the special inquiry conducted by the special inquiry officer G. H. Cavanaugh at Halifax in the Province of Nova Scotia, in particular in not having taken steps to verify the list of persons holding funds for Appel lant in Canada under arrangements made in India because of restrictions relating to the taking out of monies from India, and the failure to provide legal counsel or to insist on legal counsel, and generally in conducting such inquiry in an inquisitorial manner without regard to the fact that Appel lant is a graduate electrical engineer from the University of Mysore and a well-known sportsman, and to establish fur ther that Appellant was a bona fide non-immigrant in November of 1971 and that, after being in Canada for some four (4) months, changed his intent from being a visitor to a would-be immigrant, making numerous fruitless attempts to apply under Sect. 7 of the Immigration Act, and the improp er refusal to accept application for the permanent admission to Canada.
WHEREFORE APPELLANT moves that direction be given as to the mode, place and time for the presentation of his case, at Montreal, early in April, 1973.
No material (other than a simple consent) was filed in support of such application or to indi cate what the respective parties desire to have in the order for directions.
Rule 1403(1) contemplates an order of directions
(a) as to the material that will constitute the case for decision of the application, and for the preparation, filing and service on interest ed persons of copies of part or all thereof,
(b) as to the preparation, and filing and serv ice thereof, by interested persons, of memo randa of points of argument, and
(c) as to the place and time for argument of the application.
In most simple section 28 applications, the par ties can readily work out a description of the material that should be included in the "case for decision of the application" and they can, on application to the Registry, obtain copies of orders previously made to use as precedents. The parties should not leave it to the Court to work out the contents of the case and the other requirements of the order of directions without a concrete indication of the views of the respec tive parties as to what should be in the order. If they do, they will be in a very poor position to complain if the -resultant order works hardship on them.
I suggest that, in this case, the respondents should consider applying under Rule 1100 to quash the section 28 application unless, for some reason not apparent to me, there is some validity in it, in which event a new application for directions may be made. If neither of such steps is taken, the Court will have to consider initiating action under Rule 1100.
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