Toussaint v. Canada (Attorney General), 2010 FC 926

Date: 20100916

Docket: T-1301-09

Citation: 2010 FC 926

Toronto, Ontario, September 16, 2010

PRESENT:     The Honourable Mr. Justice Zinn

BETWEEN:

NELL TOUSSAINT

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]               On August 6, 2010 Reasons for Judgment and Judgment were issued dismissing the application for judicial review in this file.  On August 16, 2010 the applicant brought a motion for reconsideration pursuant to Rule 397 of the Federal Courts Rules.  The following passage from the Notice of Motion provides the basis of the applicant’s request:

THIS MOTION IS FOR an order that His Lordship reconsider his holding in his Reasons for Judgment and Judgment dated August 6, 2010 herein, that the applicant did not argue her immigration status was an analogous ground of discrimination under section 15(1) of the Canadian Charter of Rights and Freedoms.  In any event, if it is thought that the matter was not argued and the Court overlooked determining the point because of a misunderstanding in terminology, the applicant seeks an opportunity to argue the point and requests that the hearing be reconvened and the parties be asked to make argument thereon.

[2]               The parties appeared before me in Toronto on September 15, 2010 to make submissions on the motion to reconsider.  At that time counsel stated that the applicant was relying only on Rule 397(1)(b) of the Rules, which provides as follows:

[3]               In her Memorandum of Argument the applicant requests that I “reconsider the statements at paragraphs 79, 81 and 82 of the Reasons for Judgment, 2010 FC 810, and the wording of Footnote 3 to paragraph 82” submitting that these paragraphs “inaccurately summarize her arguments with respect to discrimination because of ‘citizenship,’ ‘citizenship status’ or ‘immigration status.’”  The applicant expressed the concern that unless this was done, the applicant might be prevented from advancing the arguments which she asserts were made at the initial hearing to the Court of Appeal.

[4]               Counsel for the respondent offered the Court her client’s undertaking that the respondent would not raise any objection or take any step that might prevent the applicant from making full submissions on her section 15 Charter argument if an appeal was filed.  While of some comfort, the applicant submitted that it was open to the Court of Appeal, based on precedent, to refuse to hear a matter that had not been dealt with by the Federal Court at first instance.  She relied on the decision in Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 and the following comments from the Court at paragraph 13:

In this case, the certified question was not dealt with by the applications judge. This court was invited to address the question at first instance but in the end we have decided to remit the matter for a decision by a Federal Court judge. While this will result in an unfortunate delay in the resolution of this matter, it is our view that the parties will be best served by having the matter dealt with at first instance in the Federal Court. Should the matter require a second look, the parties will have access to this court. If this court deals with it at first instance, the parties lose the benefit of an appeal for all practical purposes, unless their case falls within the small group for which leave to appeal is granted by the Supreme Court of Canada.

[5]               I am not convinced that this authority, applied to the present circumstances, would result in the Federal Court of Appeal refusing to hear the applicant’s submissions on appeal.  In Zazai, the application judge allowed the application on the basis that the adjudicator erred in law in holding that he or she was bound by the earlier decision of the Convention Refugee Determination Division of the Immigration and Refugee Board.  In so ruling, Justice Campbell followed and relied upon an earlier decision of Justice Gibson in Canada (Minister of Citizenship and Immigration) v. Varela, [2002] F.C.J. No. 230 (T.D.).  Justice Campbell then certified the same question for appeal as had Justice Gibson.  The problem arose because after having issued his Judgment, Justice Campbell, at the urging of the respondent, certified two additional questions that related to issues with which he had not dealt as he considered only the aforementioned error of law which was sufficient to allow the application.

[6]                  Unlike in Zazai, here I dealt with the issue of the applicant’s section 15 Charter rights; however the applicant asserts that I erred in characterizing her submissions on that issue.   In my view, the proper course for the applicant to take is to raise that issue before the Court of Appeal based on a submission that I erred in my judgment in dismissing her application on section 15 Charter grounds.

[7]               I agree with the respondent that Rule 397(1)(b) does not apply in these circumstances.  I did not overlook or accidentally omit the applicant’s submissions; rather I dealt with them, as I understood them to be.  If I was in error in my understanding, then the proper avenue for the applicant is an appeal, not reconsideration.

ORDER

THIS COURT ORDERS that the motion for reconsideration of the Judgment dated August 6, 2010 is dismissed.  There shall be no order as to costs.

"Russel W. Zinn"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1301-09

STYLE OF CAUSE:                          NELL TOUSSAINT v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      September 15, 2010

REASONS FOR ORDER:               ZINN J.

DATED:                                             September 16, 2010

APPEARANCES:

SOLICITORS OF RECORD: