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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.