International Chartering Services Ltd. v. Canada ( Minister of Citizenship and Immigration )
IMM-4189-97
Hargrave P.
18/6/98
11 pp.
Application for leave and for judicial review of decision assessing International Chartering for expense of dealing with stowaways-International Chartering, agents for charterers of Brazilian cargo vessel, Espirito Santo, arriving in Vancouver with stowaways-In 1992 immigration authorities demanding deposits of $5,000 for each of stowaways under then Immigration Act, s. 92(2) from International Chartering as transportation company-International Chartering forwarding demands to owners, who have not paid-In 1997, Crown issuing certificates pursuant to s. 92.1 of current Act, which had not been in effect when stowaway incident arose-On filing, certificate having same effect as if judgment of Court-Crown obtained writs of execution against International Chartering-International Chartering applying for declarations certificates invalid, whole procedure not applicable to it-Respondent moving to strike application for judicial review on ground Minister not rendering decision or order subject to review under Federal Court Act, s. 18.1-International Chartering submitting it was neither transportation company nor agent of transportation company at relevant time, and Minister in issuing certificates, relying on legislation neither in force in 1992 nor of any retroactive effect-Application dismissed-Federal Court Rules not containing provision for striking out notices of motion, but dicta of Strayer J.A. in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) indicating on occasion, and in exceptional case, need for procedure by which to strike out originating motion-Although R. 221(1) broad enough to include originating notice of motion, included in Part 4 of Rules-R. 169 providing Part 4 not applicable to applications-Thus left with exceptional instance test of improper originating notice of motion bereft of any possibility of success-Arguable International Chartering, which owned no vessels, did not engage in transportation of passengers, and which was agent for charterer, not for transportation company, not transportation company as defined in Act in 1992-At that time Minister having no remedy for ignored demand for security other than to seize ship-Minister allowed to issue certificate of sort issued herein only in February 1993, when Immigration Act, s. 92.1 coming into effect-But transitional provision clearly preventing retroactive application of remedy of certificate-Thus procedure here used not existing so far as claim against International Chartering-Certificates herein ad hoc collection remedy invented and applied by decision of someone in immigration department, presumably Minister-On this possible analysis, Minister made improper decision, wrongly issued certificates-Such certificates would be nullities-Respondent not meeting test of proceeding being so clearly improper as to be bereft of any possibility of success-Federal Court Rules, 1998, SOR/98-106, RR. 169, 221-Immigration Act, R.S.C., 1985, c. I-2, ss. 92.1 (as enacted by S.C. 1992, c. 49, s. 82), 92(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 23)-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).