Pelishko v. Canada (Minister of Citizenship and Immigration), (2003) 227 F.T.R. 21 (TD)

• Judge: Beaudry, J.
• Court: Federal Court (Canada)
• Case Date: January 15, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 227 F.T.R. 21 (TD)

Pelishko v. Can. (M.C.I.) (2003), 227 F.T.R. 21 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. FE.020

Oleg Volodymyrovych Pelishko (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4493-00; 2003 FCT 88)

Indexed As: Pelishko v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Beaudry, J.

January 28, 2003.

Summary:

A visa officer denied Pelishko's application for permanent residence. O'Keefe, J., set aside the visa officer's decision and ordered that Pelishko's application be remitted to a different visa officer for reconsideration. A visa officer (Watson) reviewed the matter and issued a refusal letter. Pelishko argued that Watson failed to consider his experience in violation of O'Keefe, J.'s order. Pelishko brought an application naming the Minister as respondent and moved for an order joining Watson as a necessary party to the proceeding and an order to compel Watson to appear before the court to show cause why he should not be held in contempt of court.

The Federal Court of Canada, Trial Division, dismissed the motion.

Contempt - Topic 3042

Persons liable - Particular persons - Nonparties to judgment or order - O'Keefe, J., set aside a visa officer's decision denying Pelishko's application for permanent residence and ordered that the application be remitted to a different visa officer for reconsideration - A visa officer (Watson) reviewed the matter and issued a refusal letter - Pelishko argued that Watson failed to consider his work experience in violation of O'Keefe, J.'s order - Pelishko brought an application naming the Minister as respondent and moved for an order joining Watson as a necessary party to the proceeding and an order to compel Watson to appear before the court to show cause why he should not be held in contempt - The Federal Court of Canada, Trial Division, dismissed the motion - Watson could participate as an affiant on behalf of the Minister and it was not necessary that he be added as a party in order to effectually and completely settle the issues - While O'Keefe, J.'s reasons referred to the error in failing to assess Pelishko's experience, his order only required the Minister to refer the matter to a different visa officer for reconsideration and did not explicitly require the Minister to consider Pelishko's work experience - Further, since Watson was not personally named in the order, he could not be liable by virtue of that order - See paragraphs 24 to 27.

Contempt - Topic 5044

Practice - Parties - Persons who may be named as a party - [See Contempt - Topic 3042 ].

Contempt - Topic 5115

Practice - Hearing - Costs - [See Courts - Topic 4069 ].

Courts - Topic 4069

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Costs - The Federal Court of Canada, Trial Division, dismissed the applicant's motion for, inter alia, an order to compel a particular person to appear before the court to show cause why he should not be held in contempt of court - With respect to costs, the court stated that it considered a motion to obtain contempt orders as very serious and that such orders were quasi criminal in nature and should only be granted in the clearest of circumstances - Accordingly, the court ordered the applicant to pay the respondent costs of $750 under Federal Court Rule 400(3)(k)(i) (where a step in a proceeding was improper or unnecessary) - See paragraph 36.

Courts - Topic 4141

Federal Court of Canada - Jurisdiction - Parties - General - [See Contempt - Topic 3042 ].

Practice - Topic 351

Parties - Joinder of parties - Person whose participation is necessary for full and effectual adjudication - [See Contempt - Topic 3042 ].

Practice - Topic 5442

Judgments and orders - Operation and effect of judgments and orders - Persons affected - [See Contempt - Topic 3042 ].

Cases Noticed:

Stevens v. Parker, J., et al., [1998] 4 F.C. 125; 228 N.R. 133 (F.C.A.), refd to. [para. 9].

Stevens v. Canada (Commissioner, Commission of Inquiry) - see Stevens v. Parker, J.

Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357, refd to. [para. 9].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2002), 224 F.T.R. 53 (T.D.), refd to. [para. 19].

Apotex Inc. v. Merck & Co. et al. (2002), 291 N.R. 96 (F.C.A.), refd to. [para. 19].

Bhatnager v. Minister of Employment and Immigration et al., [1986] 2 F.C. 3; 2 F.T.R. 18 (T.D.), refd to. [para. 28].

Telus Mobility v. Telecommunications Workers Union (2002), 220 F.T.R. 291 (T.D.), refd to. [para. 36].

Counsel:

Peter W. Wong, Q.C., for the applicant;

W. Brad Hardstaff, for the respondent.

Solicitors of Record:

Peter W. Wong, Q.C., Caron & Partners, Calgary, Alberta, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This motion was heard on January 15, 2003, at Calgary, Alberta, before Beaudry, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on January 28, 2003.