A-545-04
2005 FCA 27
Solicitor General of Canada and The Minister of Citizenship and Immigration (Appellants)
v.
Sampanthan Subhaschandran, Jayanthi Subhaschandran and Geetanjali Subhaschandran (Respondents)
Indexed as: Subhaschandran v. Canada (Solicitor General) (F.C.A.)
Federal Court of Appeal, Décary, Nadon and Sexton JJ.A.--Toronto, January 13; Ottawa, January 21, 2005.
Federal Court Jurisdiction -- Motions Judge adjourning respondents' motion for stay of deportation until after application for leave and judicial review of negative pre-removal risk assessment finally determined -- Appellants requesting motions Judge deal with stay motion itself -- Appeal from refusal to deal with stay motion -- While interlocutory orders, including adjournments, generally not appealable (Immigration and Refugee Protection Act, ss. 72(2)(e), 74(d)), must be exception where judge refuses to exercise jurisdiction and deal with case -- Here, Judge adjourned motion to a time when stay matter will be moot, and in effect, granted stay without considering appropriate matters -- Amounting to refusal to exercise jurisdiction -- Remedy in such situations of a mandatory nature requiring judge to exercise jurisdiction -- Appeal allowed.
statutes and regulations judicially
considered
Citizenship Act, R.S.C., 1985, c. C-29, s. 18.
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72(1), (2)(e), 74(d). |
cases judicially considered
considered:
Zündel (Re), 2004 FCA 394; [2004] F.C.J. No. 1982 (QL); Narvey v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 305 (F.C.A.).
referred to:
R. v. D.B.T., [1996] N.S.J. No. 11 (C.A.) (QL); R. v. Thompson (1983), 3 D.L.R. (4th) 642 at 651; 48 B.C.L.R. 169; 8 C.C.C. (3d) 127 at 136; 7 C.R.R. 222 (B.C.C.A.).
APPEAL from a Federal Court order dated August 23, 2004 (Shore J.) adjourning a motion for a stay of a deportation order until after respondents' application for leave and judicial review of a negative pre-removal risk assessment is finally determined, thereby refusing to deal with the stay motion itself. Appeal allowed.
appearances:
Amina Riaz for appellants.
Barbara L. Jackman for respondents.
solicitors of record:
Deputy Attorney General of Canada for appellants.
Barbara L. Jackman, Toronto, for respondents.
The following are the reasons for judgment rendered in English by
[1]Sexton J.A.: The respondents brought a motion for a stay of the order for their deportation which was scheduled for August 10, 2004 until such time as their application for leave and for judicial review of their negative pre-removal risk assessment (PRRA) dated July 14, 2004 was determined.
[2]The respondents' motion for a stay was adjourned by Gibson J. to August 23, 2004, and a stay granted in the interim period from August 9 to August 24, 2004 so that the parties could complete filing of their materials for the stay motion.
[3]On August 23, 2004, the respondents' stay motion was heard in its entirety by Shore J. with the Minister arguing that the motion for a stay of the removal order be dismissed. At that hearing, neither party requested an adjournment for any reason.
[4]At the conclusion of the argument, the motions Judge immediately rendered his decision which was to adjourn the stay motion until June 1, 2005.
[5]Counsel for the Minister requested reasons for the adjournment but the motions Judge responded that he was unable to give reasons because he felt that both parties were right.
[6]Counsel for the Minister requested that the motions Judge deal with the stay motion itself but the motions Judge declined to do so.
[7]The Minister, on September 1, 2004 launched a motion for reconsideration of the August 23, 2004 order and requested that the application for a stay be dismissed.
[8]On September 28, 2004, the motions Judge issued what he referred to as a clarification (and not a re-examination) of his order of August 23, 2004. He still refused to deal with the stay motion in the following terms.
1. The Applicants are not to be removed from Canada pending a determination of their motion for a stay subsequent to their Application for leave and judicial review having been considered and finally determined;
2. Hearing of the motion is set for the very day of Monday, June 6, 2005 at 9:30 a.m., or so soon thereafter as may be heard at the premises of the Court in Toronto subsequent to the Application for leave and judicial review having been considered and finally determined. [Emphasis added.]
[9]The Minister has appealed the order of the motions Judge arguing that the decision should be set aside as the motions Judge "clearly failed to exercise his jurisdiction and otherwise exceeded his jurisdiction".
[10]The respondents argue that the Minister is precluded from appealing the interlocutory order of the motions Judge by reason of the provisions of paragraphs 72(2)(e) and 74(d) of the Immigration and Refugee Protection Act [S.C. 2001, c. 27] (IRPA).
72. (1) Judicial review by the Federal Court with respect to any matter--a decision, determin ation or order made, a measure taken or a question raised--under this Act is commenced by making an application for leave to the Court.
(2) The following provisions govern an application under subsection (1);
. . .
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
. . .
74. Judicial review is subject to the following provisions:
. . .
(d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
[11]The respondents argue that the above-noted provisions and the jurisprudence interpreting them demonstrate that any order made in the context of the underlying application for leave or linked to it in any way, is not subject to appeal. Specifically the sections quoted make it clear that no appeal lies from interlocutory judgments and as to final judgments, only when a serious question of general importance has been certified.
[12]The respondents further argue that the courts clearly have the jurisdiction to adjourn proceedings before them.
[13]In my view, while it is true that generally interlocutory orders including adjournments cannot be appealed in the context of cases such as this, there must be an exception where a judge refuses to exercise his jurisdiction and deal with the case.
[14]In the present case, the motions Judge has adjourned the stay motion to a time (after a decision has been made on the PRRA motion) when the stay matter will be moot. He has therefore deprived the parties of ever having a decision on the stay motion, although by adjourning the motion as he has, in effect, granted a stay without considering the appropriate matters in so doing.
[15]In my view this amounts to a refusal to exercise his jurisdiction and a remedy must be available to any party where a judge simply refuses to deal with a matter before him either permanently or as here, by adjourning the matter to a time when the matter will be moot.
[16]In situations where a judge refuses to exercise his jurisdiction, the law is clear that the remedy is of a mandatory nature requiring the judge or court to exercise its jurisdiction.
(See R. v. D.B.T., [1996] N.S.J. No. 11 (C.A.) (QL) and R. v. Thompson (1983), 3 D.L.R. (4th) 642, at 651 (B.C.C.A.).)
[17]Other decisions which reinforce my view are those in which this Court has held that certain questions, including ones relating to jurisdiction, are appealable, even in the presence of the express removal of a right of appeal or right of judicial review on the main decision. In Zündel (Re), 2004 FCA 394, Létourneau J.A. found an appeal based on reasonable apprehension of bias to be an exception to the privative clause precluding an appeal or judicial review from a determination of the reasonableness of a security certificate. Similarly, in Narvey v. Canada (Minister of Citizenship and Immigration ) (1999), 235 N.R. 305 (F.C.A.), Noël J.A. allowed an appeal, notwithstanding subsection 18(3) of the Citizenship Act [R.S.C., 1985, c. C-29]. He found that a judge's bias, if demonstrated, would result in a lack of jurisdiction to render a decision, and such decision would accordingly not be one "under" section 18 of the Citizenship Act.
[18]I would therefore allow the appeal, set aside the order and send the matter back to the motions Judge with a direction that he proceed to expeditiously make a decision on the application for a stay. In the circumstances there will be no order as to costs.
Décary J.A.: I agree.
Nadon J.A.: I agree.