DATE: 20011004 DOCKET: C36320

COURT OF APPEAL FOR ONTARIO

RE:

CHRISTINE MAHARAJ (Plaintiff/Appellant) – and – RABINDRA MAHARAJ (Respondent/Respondent in Appeal) – and – ATTORNEY GENERAL OF CANADA (Intervenor) – and – ATTORNEY GENERAL OF ONTARIO (Intervenor)

BEFORE:

MORDEN, LASKIN and ROSENBERG JJ.A.

COUNSEL:

Terence Macli and Rocco Galati for the appellant

Darlene Madott and Lorne Waldman for the respondent

Cheryl D. Mitchell and Mielka Visnic for the intervernor, Attorney General of Canada

Hart Schwartz and Sean Hanley for the intervenor, Attorney General of Ontario

HEARD:

October 1, 2001

On appeal from an order of Justice Nancy Mossip dated May 8, 2001.

E N D O R S E M E N T

[1] With respect, having regard to the issues at stake, we think that the motions judge erred in abridging the time for service of the motion materials and in refusing the appellant’s request for a brief adjournment of the hearing. The voluminous materials on which the motion was based were served on appellant’s counsel less than 24 hours before the hearing and, on the day of the hearing, appellant’s counsel was committed to appear before another tribunal.

[2] In her reasons, the motions judge said that none of the evidence which she assumed the appellant would file, if it were before her, would change her view “as to what is the right order to make today.” We have had the benefit of reading fresh evidence tendered on this appeal by the appellant and, without expressing any conclusion on the ultimate effect which should be given to it, in the context of all the evidence, we think that it could have had a bearing on the judge’s decision.

[3] In all the circumstances, including the evidence before the motions judge that the refugee claim hearing would not take place on May 14, 2001, we do not think there was a situation of urgency which might have required that the matter be finally determined on May 8, 2001.

[4] In light of the foregoing, the order of Mossip J. should be set aside and the matter should be remitted to the Superior Court of Justice for a rehearing.

[5] We heard argument from the parties and counsel for the Attorney General of Canada and Attorney General of Ontario on constitutional issues respecting the jurisdiction of the Superior Court of Justice to deal with this matter in light of the refugee claim filed on behalf of the appellant and the two children of the marriage under the Immigration Act. With respect to it, we think that there is substance in the submission made on behalf of the Attorney General of Ontario that, because these constitutional issues were not raised and dealt with in the court of first instance, it would not be appropriate for us to deal with them now. It may be that, as submitted on behalf of the Attorney General of Ontario, in deciding the constitutional issues, extrinsic evidence, including evidence of legislative history, could usefully be considered. If the appellant wishes to pursue the constitutional issues, they may be dealt with on the rehearing.

[6] With respect to the motions for the admission of fresh evidence, the parties agreed that we should consider all of the fresh evidence in dealing with the appeal. We acceded to this joint position. This does not mean that the fresh evidence is part of the record in this proceeding for the purpose of the rehearing.

[7] Counsel on behalf of the Attorney General of Canada filed a two-volume appeal book containing material relating to the constitutional issues. It, similarly, should not be considered part of the record in this proceeding.

[8] For the foregoing reasons, the appeal is allowed, with costs, the order of Mossip J. dated May 8, 2001 is set aside, and an order is made dismissing the defendant’s motion, with costs.

“J.W. Morden J.A.”

“J.I. Laskin J.A.”

“M. Rosenberg J.A.”