Canada Judgment

Federal Court

Dwyer v. Canada (Citizenship and Immigration)

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Source document

01

Holding and result

The motion was dismissed because Rule 399 applies to ex parte decisions or failures to appear and the applicant had been present; the material filed was duplicative of earlier motions and did not present new evidence or procedural defect warranting setting aside the September 22, 2020 decision.

Court disposition

Applicant's motion to set aside pursuant to Rule 399 of the Federal Courts Rules is dismissed; no costs awarded.

Orders

  • The Applicant's motion to set aside an order pursuant to Rule 399 of the Federal Courts Rules, SOR/98-106 is dismissed.
  • No costs will be awarded.

02

Material facts

Parties

DEMAR LYNFORD DWYER

Applicant Counsel: Self-represented

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent Counsel: Nicole Rahaman

Amounts and remedies

  • Costs Awarded: CAD 0

03

Procedural history

  1. Posture

    Judicial Review / Motion Under Rule 399 to Set Aside September 22, 2020 Decision Dismissed

04

Questions and positions

Legal issues

Party arguments

Applicant
Applicant argued the Court's September 22, 2020 decision should be set aside under Rule 399, presenting substantially the same arguments previously advanced under Rule 397 and additional documents relating to his criminal proceedings, effectively asserting procedural grounds to reopen the matter.
Respondent
Respondent submitted the motion should be dismissed because Rule 399 applies to ex parte decisions or failure to appear, neither of which occurred; the material was duplicative of earlier filings and the applicant was present at the hearing, so there was no basis to set aside the decision.

05

Court’s reasoning

  1. 01

    Federal Courts Rules, SOR/98-106, Rule 399

    Rule 399 of the Federal Courts Rules permits setting aside decisions in circumstances such as ex parte orders or failure to appear, not where the party attended and no procedural defect is shown.

  2. 02

    Federal Courts Rules, SOR/98-106; settled federal court practice

    Motions to reconsider or to set aside require new material or a demonstrable procedural error; merely repeating prior arguments is insufficient.

  3. 03

    Federal Courts Rules, SOR/98-106, Rules 369 and 397

    Rules 369 and 397 govern reconsideration and relief from judgments but do not displace the proper scope of Rule 399.

06

Ratio, limits and disposition

Ratio decidendi

The motion was dismissed because Rule 399 applies to ex parte decisions or failures to appear and the applicant had been present; the material filed was duplicative of earlier motions and did not present new evidence or procedural defect warranting setting aside the September 22, 2020 decision.

Obiter and limits

  • The Court will accommodate self-represented litigants but will apply the Rules consistently and cannot grant relief where the Rule's prerequisites are absent.
  • Filing the same material under a different Rule number does not create a new basis for relief.

Court disposition

Applicant's motion to set aside pursuant to Rule 399 of the Federal Courts Rules is dismissed; no costs awarded.

  • The Applicant's motion to set aside an order pursuant to Rule 399 of the Federal Courts Rules, SOR/98-106 is dismissed.
  • No costs will be awarded.

Source and reliance status

Federal Court · 10 November 2020

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Judgment text

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Source document

Federal Court

Judgment· 10 November 2020

2020 FC 1045

Dwyer v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2020-11-10 Neutral citation 2020 FC 1045 File numbers IMM-4518-19 Decision Content Date: 20201110 Docket: IMM-4518-19 Citation: 2020 FC 1045 Ottawa, Ontario, November 10, 2020 PRESENT: The Honourable Mr. Justice Pamel AND BETWEEN:

DEMAR LYNFORD DWYER Applicant and

MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

JUDGMENT AND REASONS [1] On September 22, 2020, I dismissed the Applicant’s, Mr. Demar Lynford Dwyer’s, application for judicial review of a decision dated May 30, 2019 of the Immigration Appeal Board [IAD] denying his second attempt to reopen the appeal of his removal order on the grounds of res judicata. Mr. Dwyer’s initial appeal of his removal order was determined on November 2, 2015 to be abandoned, and his first attempt at reopening his appeal was dismissed by the IAD on December 6, 2016. [2] This matter was heard in conjunction with the matter in IMM-2028-19 wherein Mr. Dwyer was seeking judicial review of a decision dated April 4, 2019 of the Canada Border Services Agency [CBSA] denying his request for a deferral of his removal from Canada. That application was also dismissed on September 22, 2020. [3] On September 29, 2020, Mr. Dwyer filed a motion in writing for reconsideration of my September 22, 2020 decision in this matter pursuant to Rules 369 and 397 of the Federal Courts Rules, SOR/98-106 [FCR]. I dismissed that motion on November 4, 2020. [4] However, Mr. Dwyer also filed with this Court on October 29, 2020 a further motion under Rule 399 of the FCR for setting aside my decision of September 22, 2020 in this matter. The material filed and arguments raised by Mr. Dwyer are just about identical to those in his earlier motion under Rule 397 of the FCR. It is as if

Mr. Dwyer simply amended some of the references to Rule 397 of the FCR in his material, replaced them with a reference to Rule 399 of the FCR, and added documents relating to his criminal proceedings in Canada which were, in any event, already part of the Certified Tribunal Record for the judicial review proceedings. [5] As a self-represented litigant, I appreciate that Mr. Dwyer is not as familiar with the Rules of this Court. Rule 399 of the FCR is meant to capture situations where a decision is rendered ex parte, or where a party failed to appear at the hearing. Mr. Dwyer was very much present at the hearing regarding his application in this matter. [6] Under the circumstances, I must dismiss Mr. Dwyer’s present motion, without costs. JUDGMENT in IMM-4518-19 THIS COURT’S JUDGMENT is that: The Applicant’s motion to set aside an order pursuant to Rule 399 of the Federal Courts Rules, SOR/98-106 is dismissed. No costs will be awarded. “Peter G. Pamel” Judge

FEDERAL COURT

SOLICITORS OF RECORD AND DOCKET: IMM-4518-19 STYLE OF CAUSE: DEMAR LYNFORD DWYER v MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES JUDGMENT AND reasons: PAMEL J. DATED: november 10, 2020 APPEARANCES: Demar Lynford Dwyer

FOR THE APPLICANT (ON HIS OWN BEHALF) Nicole Rahaman For The Respondent SOLICITORS OF RECORD: Attorney General of Canada Toronto, Ontario For The Respondent

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Federal Courts Rules, SOR/98-106 (Rules 369, 397, 399)

Legislation

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