Date: 20020913
Docket: IMM-3464-02
Neutral citation: 2002 FCT 971
Ottawa, Ontario, this 13th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
BERNARD ANTHONY BRISSETT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion on behalf of the applicant for an order in the nature of mandamus directing the Appeal Division of the Immigration and Refugee Board ("Appeal Division") to furnish written reasons for its decision to dismiss the applicant's motion to reinstate his appeal of a deportation order.
[2] On July 22, 2002, the applicant commenced judicial review proceedings in connection with the Appeal Division's dismissal of a motion to reopen his appeal.
[3] On July 12, 2002, the applicant requested that the Appeal Division provide written reasons for its dismissal of the applicant's motion to reinstate his appeal.
[4] On August 6, 2002, the Appeal Division informed all the parties that written reasons would not be issued because they are not required under the Immigration and Refugee Protection Act.
[5] The applicant contends that section 169(b) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, requires that the Appeal Division issue written reasons when requested by an interested party and where the decision for which reasons are sought is not an interlocutory decision.
[6] On August 21, 2002, the applicant filed the within motion.
[7] As a preliminary matter, it should be noted that the only party named in the application for judicial review is the Minister of Citizenship and Immigration. Yet the relief being sought by the applicant directly impacts a stranger to the proceeding. In my view it would therefore have been incumbent on the applicant to first seek leave of the Court to add the Appeal Division as a party respondent before requesting the extraordinary relief of mandamus. Although this issue was not raised by the parties, I conclude that the Court should not entertain such extraordinary relief against a party not properly a respondent to the proceeding.
[8] Notwithstanding the above determination, I will deal with the issues raised by the parties on this motion.
[9] The applicant, subsequent to the hearing of this motion, made supplementary submissions arguing that the Court had jurisdiction to issue an order in the nature of mandamus on an interlocutory motion. The applicant submits as authority for his position the Supreme Court of Canada decision in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 ("Canadian Liberty Net"). I have reviewed the submissions of both parties on the Canadian Liberty Net case, supra, and I am in substantial agreement with the respondent's reply submissions, particularly paragraphs 4 through 10 thereof. In my view, the case of Canadian Liberty Net, supra, relied upon by the applicant is no authority for the interim grant of mandamus which the applicant seeks.
[10] Mandamus is an extraordinary remedy for which the Trial Division of the Federal Court has exclusive original jurisdiction pursuant to s.18(1) of the Federal Court Act, R.S.C. 1985, c. F-7, (the "Act"). Subsection 18(3) of the Act provides that this remedy, amongst others, "may be obtained only on application for judicial review made under section 18.1".
[11] I am of the view that mandamus, by definition, cannot be characterized as interim relief. [See Attorney General of Canada and Solicitor General of Canada v. Robert Gould [1984] 1 F.C. 1133 (F.C.A.)]. The consequence of ordering mandamus would be to finally determine the issue of whether there is in this case a statutory duty on the Appeal Division pursuant to s. 169 of the Immigration and Refugee Protection Act (IRPA) to issue written reasons for its decision dismissing the motion to reopen the appeal. The purpose of an interlocutory injunction is to preserve or restore the status quo, not to give the applicant his remedy.
[12] There is not before me a judicial review proceeding seeking an order requiring the Appeal Division to issue reasons for its decision. In my view such a proceeding is required under subsection 18(3) of the Act, to enable this Court to consider granting the extraordinary relief sought.
[13] For the above reasons, this motion will be dismissed as it pertains to the order in the nature of mandamus, without prejudice to the applicant to bring an application for judicial review as contemplated under s.18(1) of the Act against the appropriate party respondent.
[14] The applicant also seeks an extension of time to file his application record in support of his main application to 30 days after he receives the Appeal Division's written reasons for decision.
[15] I will grant the applicant's motion for an extension of time and will order that the application record be filed within 30 days after final disposition of an application for judicial review seeking an order directing the Appeal Division to issue written reasons. If no such application for judicial review is commenced within 20 days of the date of this order, then the application record shall be filed within 20 days of the date of this order.
ORDER
THIS COURT ORDERS THAT:
1. The motion for an order in the nature of mandamus directing the Appeal Division of the Immigration and Refugee Board ("Appeal Division") to furnish written reasons for its decision to dismiss the applicant's motion to reinstate his appeal of a deportation order is dismissed without prejudice to the applicant to bring an application for judicial review seeking an order directing the Appeal Division to provide written reasons for its decision.
2. The motion for an extension of time is granted and the applicant shall file his application record in support of his main application within 30 days after final disposition of an application for judicial review seeking an order directing the Appeal Division to issue written reasons.
3. In the event no such application for judicial review is commenced, then the application record shall be filed within 30 days of the date of this order.
4. There will be no costs on this motion.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3464-02
STYLE OF CAUSE: Bernard Anthony Brissett v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 27, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 13, 2002
APPEARANCES:
Mr. Michael Korman FOR APPLICANT
Mr. Robert Bafaro FOR RESPONDENT
SOLICITORS OF RECORD:
OTIS & KORMAN FOR APPLICANT
290 Gerrard Street East
Toronto, Ontario, M5A 2G4
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6
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