Canada ( Minister of Citizenship and Immigration ) v. Wei
T-1710-98
Pelletier J.
31/3/99
9 pp.
Citizenship and Immigration-Application for order dismissing applicant's notice of application-Applicant filed affidavit establishing attempts to serve notice of application-Respondent filed affidavit never received copy of notice of application-Federal Court Rules, 1998, r. 127 requiring originating document be served personally in manner set out in r. 128-Notice of application not served upon respondent as required by r. 128-R. 147 not available to validate service as no evidence originating document came to notice of respondent-Question whether service necessary in light of r. 127(2) (party who has already participated in proceeding need not be personally served under r. 127(1))-Catch-22 situation: whether participating in proceeding for purpose of contesting service has result of making service unnecessary as result of contesting party's participation in proceeding-R. 208 (party in action who objects to service of statement of claim not thereby attorning to jurisdiction of Court) illustrating policy Court entitled to take into account in construing r. 127(2): just as one can challenge jurisdiction without, by fact of challenge, submitting to jurisdiction, one ought to be able to challenge service without thereby making service unnecessary-R. 127(2) not applying to participation in proceeding for purpose of challenging regularity of service-While normally, failure to comply with Rules considered as irregularity to be corrected by appropriate order, instant case not normal course of events-Applicant could have brought ex parte application for order of substitutional service pursuant to r. 136 or brought motion under r. 8 for order extending time for service-Instead, applicant's advisors chose to file documents tending to show service had been effected when, in fact, had not been-This was repeated with respect to service of applicant's record-In light of this, Court not prepared to treat failure to comply with Rules as irregularity-Applicant's notice of application set aside under r. 59(c)-Federal Court Rules, 1998, SOR/98-106, rr. 8, 59(c), 127, 128, 136, 147, 208.