Digests

Rahman v. Canada (Minister of Citizenship and Immigration)

IMM-6095-00

2002 FCT 137, Hargrave P.

5/2/02

19 pp.

Mootness--Original application for mandamus to force Minister to make decision on applicant's application for permanent residence--Application for permanent residence pending since 1994--Minister bringing motion to dismiss judicial review proceeding as moot on ground permanent resident status granted to applicant last fall, about one year after proceeding commenced and immediately before application to have been heard on merits--Motion to strike out by reason of mootness allowed; application for judicial review dismissed--Judicial review applications ordinarily considered on merits in expeditious process, but may be struck in very exceptional cases, where case "so clearly improper as to be bereft of any possibility of success: David Bull Laboratories (Canada) v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.)--General analysis first, whether relief sought has become moot, as opposed to there being live controversy; second, if matter moot, whether Court ought to exercise discretion to hear application in any event--Application of leading case on mootness: Borowski v. Canada, [1989] 1 S.C.R. 342--Three fundamental justifications or rationales: must be adversarial context with parties having stake in outcome, or order to justify hearing moot issue; whether Court ought to apply scarce, expensive judicial resources to resolve point; whether Court ought to hear matter where no dispute involving rights of parties, especially when to do so might intrude into domain of legislative branch of government--Observation in Fogal v. Canada (2000), 167 F.T.R. 266 (F.C.T.D.) that mootness cannot be avoided by way of Federal Court Rules, 1998, r. 64 not meaning declaratory relief automatically gone, once principal relief falls as moot, but rather that judge or prothonotary hearing motion to strike for mootness still has discretion to decide whether whole matter, not only principal moot point, but also plea for declaratory relief, ought still to proceed to trial on basis of Borowski--Herein, despite allegations passport mutilated by CSIS officials, confiscated by Immigration authorities, argument interest of public in rooting out corrupt officials, live issue as to costs, Court having already spent considerable time on matter, there is no tangible, concrete dispute, giving rise to live controversy--Not enough court time to hear every matter to conclusion, merely because party, believing strongly in case, wishes to have day in court--Here, would be improper to intrude upon legislative function of Parliament with preemptive decision--Applicant could still take separate proceeding such as judicial review as to passport or proceeding to claim damages for loss of income--As in Canada (Attorney General) v. Khan (1998), 160 F.T.R. 83 (F.C.T.D.), applicant entitled not only to out-of-pocket disbursements, but also to reasonable sum, as lump sum, to reimburse him for lost time in pursuing legitimate interests --Applicant awarded lump sum of $1,350 to go toward reimbursing him for lost time in pursuing interests-- Federal Court Rules, 1998, SOR/98-106, r. 64.