Date: 20240115
Docket: IMM-12760-23
Citation: 2024 FC 59
Toronto, Ontario, January 15, 2024
PRESENT: Associate Judge John C. Cotter
BETWEEN:
TAYE ADEBAYO TIAMIYU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER AND REASONS
[1] This is a motion by the applicant for an order expediting the application for leave and for judicial review. In addition to the motion records of the applicant and the respondent, the applicant was permitted to file a reply dated October 23, 2023 and a letter dated October 24, 2023 containing additional materials. For the reasons set out below, the motion is dismissed.
[2] The application for leave and judicial review issued on October 10, 2023 (“ALJR”) and indicates that:
“The applicant seeks leave of the Court to commence an application for judicial review of: An unnamed immigration officer (JK23839) refused the applicant’s spousal permanent residence application. The refusal of the applicant’s application for a Temporary Resident Visa was made inside Canada on September 29, 2023.The Applicant was notified on September 29, 2023.”
[3] The ALJR also indicated that the applicant had not received written reasons from the tribunal. A review of the recorded entries on this file identified the following in that regard: a first request to IRCC was sent on December 13, 2023; and a certified copy of the decision and reasons were received by the Registry on December 19, 2023.
[4] Although not stated as such by the applicant, there are two components of the relief sought: (i) expediting the application for leave; and (ii) in the event leave is granted, expediting the application for judicial review.
[5] I will deal with the first component, but it is not appropriate that I deal with whether to expedite the judicial review application should leave be granted. Pursuant to Rules 14 and 15 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 (“FCCIRPR”), a Judge determines the application for leave, and if leave is granted, the order granting leave shall, “specify … the day and place fixed for the hearing of the application for judicial review” (Rule 15(1)(a)) and shall specify the time limits within which various steps are to be completed (Rule 15(1)(b) to (d)). Accordingly, as the leave application has not been disposed of, it is premature in the context of this case motion to deal with the timing of any aspect of the application for judicial review. Further, if leave is granted, it is a Judge that is to determine those time limits pursuant to Rules 14 and 15. As a result, an Associate Judge should not pre-emptively determine them.
[6] Justice Diner considered whether an application for leave and judicial review could be expedited under Rule 8(1) of the Federal Courts Rules, SOR/98-106 (“Rules”) in Ezimokhai v Canada (Citizenship and Immigration), 2022 FC 1452 (“Ezimokhai”). In that case, all of the filings for the leave stage had been completed, but the leave application had not yet been disposed of. The applicant was seeking to expedite both the leave application and the judicial review application. Justice Diner concluded that:
[8] As explained to the parties at the hearing, the Motion cannot succeed because this Court cannot grant the relief sought under a Rule 8(1) request, given that the Application is still pending a leave decision. Even if leave had been granted, the Motion still suffers several fundamental problems, and fails to demonstrate the exceptionality required for the Court to grant an abridgment under Rule 8(1) (see: Canadian Wheat Board v Canada (Attorney General), 2007 FC 39 at para 13 [Canadian Wheat Board]).
[9] Rule 8(1) reads: “On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.” Rule 8(1) cannot compel the Court to render a leave decision within a specific timeframe, because no period has been provided by either the FC Rules or by the IMM Rules for the rendering of a leave decision.
[10] The IMM Rules provide a strict timeframe once leave has been granted, to ensure the Court and the parties meet the 90 day requirement set out in s. 72 of IRPA. Indeed, standard leave Orders of this Court state that “parties may consent to an alternate time line for completing the steps …, in which case a joint amended schedule shall be filed with the Registry” (see also discussion of subs. 74(b) of the Act below).
[11] However, since a leave decision by this Court is still to be issued, and because the timeline for that leave decision is not provided by the FC Rules or fixed by a Court order – as stipulated by Rule 8(1) – the timeline required to render a decision on leave remains the prerogative of the Court, and within its exclusive jurisdiction to determine.
[12] Consequently, the relief sought to expedite timelines in this case, as contemplated by Rule 8(1), is simply unavailable in these circumstances, because this Rule cannot be used to compel an order of the Court to grant or deny leave. Despite being given several opportunities to address this fundamental obstacle to the remedy sought, Applicant’s counsel was neither able to articulate any rationale in his written submissions, nor subsequently in oral arguments at the hearing, that would allow the Court to overcome this fundamental impediment.
[Emphasis in original.]
[7] With one possible exception, Justice Diner’s decision in Ezimokhai is determinative of the applicant’s motion to expedite the leave application. Although there is no basis upon which to expedite most aspects of the leave application, there is a possible application of Rule 8(1) of the Rules in this case that was not available in Ezimokhai, namely abridging the time periods set out in Rules 10(1), 11 and 13 of the FCCIRPR. In Ezimokhai both the applicant and respondent had filed records, the applicant did not file a reply and as a result, all filings for the leave stage had been completed (see paragraphs 5 and 6 of that decision). In the present case, none of those filing have yet occurred. The applicable time periods for those steps are provided for in the FCCIRPR and as such could be abridged under Rule 8(1) of the Rules. However, Rules 10(1) and 13 of the FCCIRPR establish the time period or deadline for the applicant to file the applicant’s record, and if the applicant choses, a reply. The applicant may chose to file those materials before the deadline and accordingly, there is no need to consider abridging those time periods as the applicant can effectively do that if it serves and files those materials early. I pause here to note that at least as of the date of this decision, the applicant has not perfected the leave application early. The only time period that warrants consideration is the 30 day time period provided for in Rule 11 of the FCCIRPR for the respondent to serve and file any affidavits and a memorandum of argument. I am not satisfied that this period should be abridged. At this point, as the applicant’s record has not been served and filed, the extent of the factual and legal issues to be addressed by the respondent, and the time required to so, are somewhat unknown. Further, since the respondent will need some time to serve and file any affidavits and a memorandum of argument, it is not apparent that abridging the 30 day period in Rule 11 of the FCCIRPR somewhat, would have a significant impact on the overall timeline for the disposition of the leave application. In addition, the reasons set out below dealing with whether a case has been made out to expedite also apply to this one step.
[8] Even if it was possible to order the entire leave application expedited under Rule 8(1), I would not do so in this case. The factors to be considered by the Court in deciding whether to extend or abridge a time period under Rule 8(1) were reviewed in St-Cyr v Canada (Attorney General), 2021 FC 107 (“St-Cyr”
):
[16] Section 8 of the Rules authorizes the Court to “extend or abridge a period provided by these Rules or fixed by an order”. In exercising its discretion to do so, the Court will consider a number of factors which have been summarized as follows:
a) Whether the proceeding is really urgent or does the moving party simply prefer the matter be expedited;
b) Whether prejudice will ensue to the responding party if the matter is expedited;
c) Whether the matter will be moot if it is not expedited; and
d) Whether expediting the matter will prejudice other litigants by jumping the queue
[Citations omitted.]
[17] After reviewing the cases in which reasons were provided on motions to expedite proceedings, the Honourable Mr. Justice Sébastien Grammond found in McCulloch v Canada, 2020 CF 565 [McCulloch] that the discretion to expedite the hearing of a case was exercised according to two (2) main sets of considerations: (1) whether an expedited hearing is necessary to ensure the effectiveness of the remedy sought; and (2) whether it can be accomplished through a fair process (McCullochat para 12).
[18] Notwithstanding how the relevant factors are framed, the burden lies with the party seeking to vary the timelines provided in the Rules (Alani at para 15; CWB at para 14; Conacher at para 18).
[9] Having regard to the factors set out in St-Cyr, even if it was possible to order the leave application expedited under Rule 8(1), I would not do so in this for the following reasons which I consider to be the most significant in this case:
- a)Even if the applicant is facing removal from Canada (which the respondent disputes), there are more appropriate avenues open to him than seeking to expedite this proceeding, namely seeking a stay of a removal order should there be one; and
- b)Expediting this proceeding prejudices other litigants by permitting the applicant to jump the queue, particularly when, as noted above, even if the applicant is facing removal from Canada, there are more appropriate avenues open to him.
[10] The following statement by Justice Diner at paragraph 21 of Ezimokhai is equally applicable in the present case:
[21] Fourth, and last under the St-Cyr criteria, there are thousands of other parties who come to this Court every year who would like their matters to be expedited. The Court has received a record number of ALJR this year, and the numbers are continuing to trend upwards. Expediting this matter – just as would be the case for moving up any other judicial review for a different immigration matter, no matter the category (student or otherwise) – will inevitably prejudice other litigants waiting patiently for their turn before the Court.
[11] In conclusion, there is no basis upon which to expedite the application for leave, and the applicant’s motion is dismissed.
ORDER in IMM-12760-23
THIS COURT ORDERS that the applicant’s motion for an order expediting the applicant’s application for leave and judicial review is dismissed.
"John C. Cotter"
Associate Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-12760-23
STYLE OF CAUSE:
TAYE ADEBAYO TIAMIYU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
held by videoconference
DATE OF HEARING:
October 24, 2023
ORDER AND REASONS:
COTTER A.J.
DATED:
January 15, 2024
APPEARANCES:
Abayomi Ogayemi
For The Applicant
Jake Boughs
For The Respondent
SOLICITORS OF RECORD:
Ogayemi Law Firm
Barrister and Solicitor
Toronto, Ontario
For The Applicant
Attorney General of Canada
Toronto, Ontario
For The Respondent