Date: 20100514
Docket: IMM-435-10
Citation: 2010 FC 532
Vancouver, British
Columbia, this 14th day of May 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
PETER ROGAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
[1]
The
applicant is seeking an “interim order pursuant to s. 18.2 of the Federal
Courts Act, or, alternatively, the Court’s inherent jurisdiction,
prohibiting the resumption of the Applicant’s Admissibility Hearing, which is
currently scheduled to take place over four days from June 8, 2010 to June 11,
2010 before the Immigration Division, until such time as the within Application
for Leave and Judicial Review has been dealt with”.
[2]
In
the underlying Application for Leave and for Judicial Review, the applicant challenges the interlocutory
decision of the Immigration Division of the Immigration and Refugee Board (the
“Immigration Division”) wherein it dismissed the applicant’s application for
disclosure of documents. In its reasons, the Immigration Division held that the
documents were related to the alleged abusive conduct of the immigration
officer in making the Report, under subsection 44(1) of Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”) and/or the
decision of the Minister’s delegate to refer the matter to the Immigration
Division pursuant to subsection 44(2) of the IRPA. Because the Immigration
Division did not have the jurisdiction to review the validity of the section 44
decisions (Report and Referral), the applicant’s allegations of the Canada
Border Services Agency’s abusive conduct in writing the Report and/or making
the Referral were irrelevant. The documents sought where consequently
irrelevant and the disclosure application denied.
* * * * * * * *
[3]
The
law governing the Court’s exercise of discretion to grant interim relief is set
out in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.). The
following elements of the test must be satisfied conjunctively:
a)
the underlying
Application for Leave and for Judicial Review of the Immigration Division’s interlocutory
ruling raises a serious issue to be tried;
b)
the applicant will
suffer irreparable harm if the stay is not granted; and
c)
the balance of
convenience favours the applicant.
[4]
Upon
reading the material filed and upon hearing counsel for the parties, I am of
the opinion that the applicant fails to meet all three prongs of the Toth
test.
Serious issue
[5]
The
practice of this Court is to not review interlocutory decisions because such
review is, in the vast majority of cases, premature. The jurisprudence makes
clear that only if there are special circumstances, such as no appropriate
remedy at the end of proceedings available to the applicant, should the Court
exercise its jurisdiction to review the matter (Zündel
v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (C.A.), at paragraph
10; Szczecka v. Canada (M.E.I.) (1993), 116 D.L.R. (4th)
333 (F.C.A.), at paragraph 4).
[6]
The
rationale for such restrictive access to judicial review is to avoid the
unnecessary delays and expenses associated with
breaking up a case on each and every opportunity for appeal, which would
interfere with the sound administration of justice and ultimately bring it into
disrepute (Zündel, and Szczecka, supra). The Federal Court of Appeal held in Anti-dumping Act (In
re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C. 22, at page 34:
. . . a right, vested in a party who is reluctant to have the
tribunal finish its job, to have the Court review separately each position
taken, or ruling made, by a tribunal in the course of a long hearing would, in
effect, be a right vested in such a party to frustrate the work of the tribunal.
[…]
[7]
In
the case at bar, the applicant has failed to show that there is a serious issue
to be tried as a result of the existence of special circumstances to justify an
immediate review of this matter. Where the matter at issue is the Immigration
Division’s jurisdiction to determine constitutional questions or to make
declaratory judgments, it goes to the very jurisdiction of the tribunal and
constitutes special circumstances (Zündel, supra, at paragraph
15). The applicant submits that the evidentiary ruling made by the Immigration
Division in this case engages similar jurisdictional concerns and further
relies on Minister of Citizenship and Immigration v. Fox, 2009 FC 987,
and Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584
(T.D.).
[8]
What
first distinguishes the facts of this case from the case-law cited by the
applicant is that there is no question that it is within the Immigration
Division’s jurisdiction to make an interlocutory order regarding evidence (IRPA,
subsection 162(1); Immigration Division Rules, SOR/2002-229, rules 3 and
20(2)). Madame Justice Danièle Tremblay-Lamer affirmed that the discretion
provided by the legislative scheme ensures that the tribunal is the master of
its own procedure (Minister of Public Safety and Emergency Preparedness v.
Kahlon, 2005 FC 1000, at paragraph 24).
[9]
In Fox,
supra, the matter the Court was concerned with on judicial review was
whether the tribunal had ordered an adjournment in admissibility proceedings
for improper purposes, taking into account irrelevant considerations.
Similarly, in Pfeiffer, the applicant had argued that the bankruptcy
tribunal could not apply certain sections of the Bankruptcy Act to him
because they should be struck under the Constitutional Act. The tribunal
said it had no jurisdiction to strike legislation and thus applied the sections
to the applicant. The issue for the Court on judicial review was whether the
tribunal had done something that it had no jurisdiction to do.
[10]
Finally, I note that there is an appropriate remedy at the end of
the Immigration Division’s proceedings as the applicant has a right to apply
for leave and for judicial review from the decision which will eventually be
made on the merits of admissibility. In Fox, supra, there was no
appropriate remedy at the end of the hearing because the adjournment was the damage
complained of by the applicant government.
[11]
This is not a case where the Immigration Division is declining
jurisdiction to consider a Canadian Charter of Rights and Freedoms
argument, rather, it is finding that it has no jurisdiction to order disclosure
of documents because they relate to an irrelevant matter for the admissibility
hearing. It is not contested that an interlocutory order denying the applicant
disclosure of some documents is a permissible basis for an application for
judicial review of the decision on the merits (Seyoboka
v. Minister of Citizenship and Immigration, 2009 FC 104, 340 F.T.R. 105, at
paragraph 48; and see generally, the principle that interlocutory orders
may form the basis of an application for leave to judicially review the final
decision of the tribunal (Zündel, at paragraph 17; Szczecka, at
paragraph 6)).
[12]
Therefore,
the underlying application for judicial review being clearly premature, the requirement
of showing the existence of a serious issue in this matter has not been met.
Irreparable harm
[13]
The
applicant submits that the Immigration Division’s ruling may give rise to a
breach of the Charter and that the Court must presume in such
circumstances that irreparable harm will flow from the breach. The applicant
cites Ermineskin Cree Nation v. Canada, 1999 ABQB 791 at paragraph 33, and
Southam Inc. v. Canada (Attorney General), [1991] 2 F.C. 292 (T.D.) at page
308, as support for the proposition that a hearing which is ultimately
determined to be void for jurisdiction causes irreparable harm if it proceeds.
The applicant also cites R.J.R. - MacDonald Inc. v. Canada (A.G.),
[1994] 1 S.C.R. 311, at paragraphs 60 and 61 in support of the proposition that
Charter breaches, even if compensable, are by their nature causative of
irreparable harm.
[14]
Given
the circumstances of the present case, this Court cannot assume irreparable
harm.
[15]
Because
no Charter rights are engaged in an admissibility hearing of a foreign
national, who is not detained and is not a refugee claimant, the applicant’s allegation
of irreparable harm is irrelevant. First, this is a decision with respect to
the applicant, not against him. His right to life, liberty and security of the
person is not yet engaged, if ever applicable. Second, as a foreign national
living in Canada who is not detained and
has not claimed refugee protection, he has no Charter rights. In Medovarski
v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 539, the Supreme Court of
Canada determined that the section 7 right guaranteed by the Charter is
not implicated by a deportation order made against a non-citizen:
[46] The most fundamental principle of immigration law is that
non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli
v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p.
733. Thus the deportation of a non-citizen in itself cannot implicate the
liberty and security interests protected by s. 7 of the Canadian
Charter of Rights and Freedoms.
[16]
To
the extent that the applicant asserts irreparable harm flowing from a breach of
his common law rights, I note a decision of the British Columbia Supreme Court:
Doman v. British Columbia (Securities Commission), [1995] 10 W.W.R. 649 (B.C.S.C.) which is cited with approval
by the Federal Court of Appeal in Zündel, supra. In Doman,
Huddart J. (as she then was) considered whether there were circumstances
to support the court’s exercise of discretion to review interlocutory orders
from an administrative board. She held that “[t]he fact that an evidentiary
ruling may give rise to a breach of natural justice is not sufficient reason
for a court to intervene in the hearing process” (at page
655).
[17]
Furthermore,
because the underlying issue is not whether or not the Immigration Division had
the jurisdiction to make the order it did, or to proceed with an admissibility
hearing, the comments of the Court of Queen’s Bench of Alberta in Ermineskin
Cree Nation, supra, and those of the Federal Court in Southam,
supra, do not support the applicant’s assertion of irreparable harm.
Balance of convenience
[18]
In
the circumstances of this case, public interest tips the balance of convenience
in favour of the respondent. If the requested stay is granted, the
admissibility hearing will be subject to further delays, and the substantive
merits of the allegations against the applicant will not be determined on a
timely basis, as required by section 162 and paragraph 173(3)(b) of the IRPA.
Furthermore, the March 17, 2010 decision of the Immigration Division refusing
the applicant’s application to postpone the admissibility hearing pending his
leave application will have been improperly circumvented.
[19]
Therefore,
further delay would not be in the interest of justice and runs contrary to the
express intention of Parliament that admissibility hearings proceed in a timely
way.
* * * * * * * *
[20]
For
all the above reasons, the requested interim relief is denied and the
applicant’s motion is dismissed.
ORDER
THIS COURT ORDERS that the
requested interim relief is denied. The applicant’s motion is hereby dismissed.
“Yvon
Pinard”
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