Date: 20110516
Docket: IMM-5165-10
Citation: 2011 FC 554
Ottawa, Ontario, May 16,
2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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HASSAN ALMREI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The
Applicant, Mr. Hassan Almrei, arrived in Canada in January
1999 and, in May 2000, was found to be a Convention refugee. As a Convention
refugee, he was permitted to apply to remain in Canada as a
permanent resident; he did so in late 2000. In a decision dated September 25,
2002, an immigration officer (the Officer) with Citizenship and Immigration
Canada (CIC) refused the Applicant’s application for permanent residence in Canada. The only
reason for the refusal was that the Applicant was inadmissible to Canada
because he had been issued a s. 40.1(1) certificate (Security Certificate #1)
under the Immigration Act, RSC 1985, c I-2 (the Old Act).
[2]
Since
the refusal of his permanent residence application, Security Certificate #1 was
replaced by a further Security Certificate (Security Certificate #2) which was
quashed in 2009.
[3]
The
Applicant, claiming that he only recently became aware of the Officer’s
decision, seeks to quash the September 25, 2002 decision that refused the
Applicant’s application for permanent residence in Canada.
II. Issues
[4]
The
principal issues raised by this application are as follows:
1.
Should
the Applicant be granted an extension of time to bring this application for
judicial review?
2.
Should
the decision of the Officer be set aside on the basis that:
a.
The
quashing of the Security Certificates has rendered the decision a nullity; or
b.
The
decision should be re-opened on the basis that the failure of the Officer to
consider the quashing of Security Certificate #2 was a breach of natural
justice?
[5]
For
the reasons that follow, I have concluded that an extension of time should be
granted. Moreover, I have determined that the Officer’s decision is not a
nullity and there has been no breach of natural justice. The Application for
Judicial Review will be dismissed.
III. Background
[6]
It
would be difficult (and not particularly helpful) to relate the entire history
of this matter. For a more complete story of how this matter came to be, I
refer the reader to the decision of my colleague, Justice Mosley, in Almrei
(Re), 2009 FC 1263 [Almrei #2]. What follows in this section is a
very brief overview.
[7]
Subsequent
to his permanent residence application, Security Certificate #1 was issued on
October 16, 2001, indicating that Minister of Citizenship and Immigration (the
Minister) and the Solicitor General of Canada were of the opinion that the
Applicant was a person referred to in the applicable provisions of the Old
Act. On October 19, 2001, the Applicant was arrested. Security Certificate
#1 was initially upheld by Justice Tremblay-Lamer, in a decision dated November
23, 2001 (see Almrei (Re), 2001 FCT 1288 [Almrei #1]).
Accordingly, at the time of the decision under review in this case, Security
Certificate #1 was valid.
[8]
Certificate
#1 was considered by the Supreme Court of Canada in Charkaoui v Canada (Minister of
Citizenship and Immigration), 2007 SCC 9. While the Supreme Court did
not immediately quash Certificate #1, it held that the procedure for judicial
confirmation of such certificates was inconsistent with the Canadian Charter
of Rights and Freedoms, and provided the following guidance (at para. 140):
However, in order to give Parliament time
to amend the law, I would suspend this declaration for one year from the date
of this judgment. . . . After one year, the certificates of Mr. Harkat and
Mr. Almrei . . . will lose the "reasonable" status that has been
conferred on them, and it will be open to them to apply to have the
certificates quashed. If the government intends to employ a certificate
after the one-year delay, it will need to seek a fresh determination of
reasonableness under the new process devised by Parliament. [Emphasis
added.]
[9]
Security
Certificate #2 was issued on February 22, 2008 by the Minister and the
Solicitor General pursuant to the applicable provisions of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). The Applicant
challenged the reasonableness of the replacement certificate. In a decision
dated December 14, 2009, Justice Mosley concluded that Security Certificate #2
was not reasonable and ordered that it be quashed (Almrei #2). There was
no appeal of that decision; it is final and binding on all parties.
[10]
By
letters dated January 7, 2010 and February 17, 2010, the Applicant’s counsel
requested information on the status of the application for permanent residence.
[11]
In
April 2010, the Applicant filed an application with the Federal Court seeking a
writ of mandamus (Court File No. IMM-1906-10) to force the Minister to
make a decision on his application for permanent residence. In the context of
that application, the Applicant claims that he was finally made aware of the
decision now under review. The application for leave was dismissed. When the
Applicant received the decision on the application for leave, he commenced this
application for judicial review of the Officer’s 2002 decision, along with an
application for an extension of time.
[12]
With
this background, I turn to the issues before me.
IV. Issue #1:
Should the Applicant be granted an extension of time?
A. Introduction
[13]
The
decision at issue was made September 25, 2002. Pursuant to s. 72(2)(b) of IRPA,
an applicant must commence the application for judicial review within 15 days
“after the day on which the applicant is notified of or otherwise becomes aware
of the matter.” This application for judicial review was commenced September 7,
2010. The first issue to be addressed, before turning to the merits of the application,
is whether an extension of time should be granted to the Applicant to bring
this application for judicial review.
[14]
In
his affidavit, the Applicant explains that he was never notified of the refusal
of his permanent residence application. Rather, he believed that the
application had been held in a “pending” status until the completion of his
applications to quash Security Certificate #1 and #2. It was not until his
counsel brought an application for mandamus (Court File No. IMM-1906-10),
that a copy of the decision was obtained. As soon as that application for
judicial review was dismissed on August 30, 2010, the Applicant filed Notice of
this Application for Leave and Judicial Review.
[15]
The
Minister appears to accept that the Applicant did not receive a copy of the
actual decision until after the commencement of the application for mandamus.
However, the Minister asserts that the Applicant had constructive notice of the
refusal.
B. Preliminary Matter
[16]
Less
than two weeks before the hearing of this application, the Minister brought a
motion in writing, pursuant to Rule 369 of the Federal Courts Rules,
allowing the Minister to rely on extracts from two documents found in the
Applicant’s Federal Court File No. IMM-3916-06. The Minister argues that the
extracts assist him in his argument that the Applicant knew of the refusal of
the permanent residence application and should not be granted an extension of
time to bring this application for judicial review.
[17]
In
an Order issued April 27, 2011, Prothonotary Milczynski dismissed the motion.
It subsequently came to light that Prothonotary Milczynski had not received a
copy of the Minister’s Reply submissions to the motion prior to making her
decision. As a result of this oversight, I agreed to consider whether the
extracts should be admitted.
[18]
Having
considered the matter, I have concluded that the interests of justice would not
be served by the admission of this additional documentary evidence.
[19]
As
I understand it (not having actually reviewed the extracts in issue, at the
request of the Minister), the materials consist of a very few pages of
documents prepared by the Applicant’s then counsel. The Minister argues that
these extracts go to the question of whether the Applicant was aware – at least
in 2006 – that his application for permanent residence had been refused.
[20]
I
have two key problems with the late admissions. First, the Minister has been in
possession to the materials for many years; neither the Court nor the Applicant
should have to suffer the consequences of sloppy record keeping. Secondly, the
Applicant could be seriously prejudiced by the admission of extracts from a
voluminous record, without adequate time to review the context of the extracts.
The documents will not be admitted.
C. Analysis
[21]
The
parties agree that the test for granting an extension of time is that set out
in Canada (Attorney
General) v Hennelly, [1999] FCJ No 846 (CA). In Hennelly,
the Court set out a four part test for an extension of time: (i) the applicant
must demonstrate a continuing intention to pursue his or her application; (ii)
the application must have some merit; (iii) the delay must not prejudice the
respondent; and (iv) there must be a reasonable explanation for the delay.
[22]
In
this case, given that leave was granted to commence the application, I accept
that the application has “some merit.” Further, the Minister has not presented
any argument that prejudice arises to the Minister from the delay. Thus, it
appears that the two parts of the test at issue on this request for an
extension of time is Parts 1 and 4.
[23]
In
this case, the remaining factors of the Hennelly test are connected. I
observe that the Applicant has deposed that he was under the mistaken
understanding that his permanent residence application was put on hold until
the issues with the security certificates were sorted out (see para. 7 of the
Applicant’s affidavit, p. 12 of the Applicant’s record). This appears to be a
reasonable explanation as to why the Applicant did not inquire into the status
of his permanent residence application until 2009 and thus, in the
circumstances of this case, his failure to check on the status of his
application should not be taken as an indication that he no longer wished to
pursue his application for permanent residence.
[24]
The
Minister argues that the Applicant should have known, from the fact that he was
arrested and detained under a security certificate and that steps had been
taken for his removal, that his permanent residence application had been
rejected. I am not convinced by this argument. First, as I have already noted,
the Applicant thought that his application had been put on hold. Second, I note
that a history of the case demonstrates that the Applicant was actively
fighting the security certificates at all times; arguably, his status as
inadmissible was in flux from the time of his arrest and detention until 2009,
when the litigation on the matter finally ceased. Third, I note that, in the
cases cited by the Minister to support the idea of “constructive notice” (Peace
Hills Trust Co v Saulteaux First Nation, 2005 FC 1364; Cousins v Canada
(Attorney General), 2007 FC 469), there had been direct or indirect
communications with the applicants that clearly indicated that a decision had
been made, despite the fact that the applicants did not receive official notice
of the decision. Finally, I note that the Applicant deposed that when he
contacted the tele-centre to check on his permanent resident application in
2009, he was told that the application had been “stopped,” not that the matter
had been decided. For the above reasons, I am simply not convinced that the
Applicant was ever notified of the decision, either directly or by operation of
the principle of “constructive notice” such that the Court should find that he
did not have a continuing intention to pursue the application or that there is
not a reasonable explanation for the delay.
[25]
Further,
the Applicant states that he received notice of the decision when he received
the response to the Rule 9 request on his mandamus application. The
Applicant deposes at para. 14 of his affidavit (p. 13 of the Applicant’s
record) that counsel advised him to continue with the mandamus
application, as the decision was a nullity as a result of Charkaoui,
above, and Almrei #2, above. Immediately after leave was denied, the
Applicant filed this application for judicial review.
[26]
I
conclude that the factors of Hennelly have been met and an extension of
time to commence this application for judicial review will be granted.
V. Issue
#2: Should the decision on the application for permanent residence be set
aside?
A. Why
it matters
[27]
In
2000, the Applicant was determined to be a Convention refugee. There has been
no decision by the Minister to vacate that designation (see IRPA, s.
114(1)). Accordingly, since 2000, the Applicant has had the rights and
obligations of a person designated as a Convention refugee.
[28]
One
of the ultimate goals of most refugee claimants is to become a permanent
resident – and eventually a citizen – of Canada. In general,
a foreign national must obtain status in Canada before
entering Canada (IRPA,
s. 11). An exception is made for “protected persons,” including persons who are
found to be Convention refugees. Convention refugees do not automatically
obtain status in Canada as permanent residents. However, as provided
for in s. 21(2) of IRPA, such persons become permanent residents of
Canada if an immigration officer is satisfied that: (a) they have applied for
permanent residence status in accordance with the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations); and (b) they
are not inadmissible to Canada on any of the grounds set out in ss. 34, 35,
36(1), 37 or 38 of IRPA. This right was also the case under the Old
Act, which was in force when the Applicant was found to be a Convention
refugee.
[29]
For
the Applicant, the only other way that he could now become a permanent resident
from within Canada would be to apply, under s. 25 of IRPA, for an
exception from the requirement of s. 11 to apply from outside Canada. While the
result – permanent residence – is achievable by this route, the process is
different. Under the s. 25 process, the Applicant would be required to address
a number of factors to establish that, on humanitarian and compassionate
(H&C) grounds, the exception should be granted. In contrast, a review
pursuant to s. 21(2) requires the Applicant to show only that he is not
inadmissible on any of the specific grounds set out that provision.
[30]
The
Applicant asserts that there are significant benefits to the Applicant to being
able to proceed under s. 21(2) of IRPA.
B. The
original decision
[31]
The
decision in question was made in 2002 by the Officer on the basis of the
evidence or record before him at that time. The record consisted, in part, of
Security Certificate #1. Security Certificate #1 was issued pursuant to s.
40.1(1) of the Old Act and had been found to be reasonable by Justice
Tremblay-Lamer in Almrei #1. The Officer concluded that the Applicant’s
application for permanent residence should be refused. The reason for the
refusal was that the Applicant was inadmissible to Canada because of
the Security Certificate.
[32]
The
Old Act was clear. A security certificate issued under s. 40.1(1) of the
Old Act was “conclusive proof” that the person holding the certificate
was inadmissible (Old Act, s. 40.1(7)). A person who had been found to
be a Convention refugee, found to be inadmissible, would not be entitled to
permanent residence status.
[33]
At
the time of the decision, there can be little doubt that it was reasonable and
correct. The first question is whether that decision can still stand given that
the underlying evidence – Security Certificate #2 – was found to be
unreasonable and quashed in 2009 (Almrei #2).
C. The
decision as a “nullity”
[34]
The
Applicant seeks first a declaration of this Court that the decision is a
nullity. In other words, the Applicant argues, the decision should be treated
as though it never existed. The Applicant submits that it is abundantly clear
in this case that the decision is a nullity and is void ab initio. The
Applicant notes that the Officer relied on Justice Tremblay-Lamer’s finding in Almrei
#1 that the certificate should be upheld in concluding that the Applicant
was inadmissible and thus his permanent residence application should be
refused. The Applicant submits that, given the basis for the refusal (the
upholding of the security certificate) has been set aside, any decision relying
on that certificate is a nullity and is void.
[35]
I
agree with the Applicant that the basis for the Officer’s decision – Security
Certificate #1 – no longer exists. I am also satisfied that Security
Certificate #2, having been quashed, could not be used as evidence of
inadmissibility today. The question to be determined is: what is the effect of
the fact that the Security Certificate no longer exists?
[36]
The
Applicant relies on the case of Kalicharan v Canada (Minister of
Manpower and Immigration), [1976] FCJ No 21 (TD) as authority for the
proposition that, if the basis for a decision no longer exists, that decision
becomes a nullity and void. In Kalicharan, the Court issued a writ of
prohibition directing that a deportation order not be enforced. The case
involved a man who had been ordered deported due to criminal convictions, but
who was subsequently given a discharge. The Court stated:
The decision of the Ontario Court of
Appeal is not merely new evidence that would permit the Special Inquiry Officer
to reopen his hearing; nor is it simply a fact to be taken into account by the
Immigration Appeal Board if, as and when, that tribunal entertains an appeal
from the Special Inquiry Officer’s decision. Rather, its import is that the
basis for making the deportation order not only no longer exists in fact; it is
deemed, in law, not to have existed at all. This, therefore, is a proper case
for prohibition and the order sought will issue accordingly. [Emphasis
added.]
[37]
In
my view, the case of Kalicharan is not helpful to the Applicant. First,
the case involved an appeal by Mr. Kalicharan of the sentence imposed for a
criminal conviction. The Ontario Court of Appeal allowed the appeal and granted
Mr. Kalicharan a conditional discharge. As observed by Justice Mahoney, in
those circumstances, s. 662.1(3) of the Criminal Code, RSC 1985, c C-46 (the Criminal
Code),
provided that the accused “shall be deemed not to have been convicted.” We do
not have a similar provision in IRPA.
[38]
Secondly,
the judgment of the Court was limited to a writ of prohibition prohibiting the
enforcement of a deportation order; the underlying decision was not quashed.
Nor, as I read the decision and the relevant law, was Justice Mahoney
suggesting that it should be quashed. As stated by Justice Mahoney, the basis
for the deportation order no longer existed in fact and, by operation of
the provision of the Criminal Code, the basis (that is, the conviction)
never existed. Applied to the facts before me, Kalicharan seems to stand
for the proposition that a deportation order or other instrument seeking to
remove the Applicant from Canada could not be enforced – nothing more. A
similar conclusion was reached in Saini v Canada (Minister of Citizenship
and Immigration), [2000] FCJ No 210 (TD), where Justice Dubé held that a
deportation order could not be executed after Mr. Saini received a pardon for
his crimes in Pakistan.
[39]
The
case of Nagra v Canada (Minister of
Citizenship and Immigration), [1996] 1 FC 497 (TD) is an anomaly. In
that case, Justice Muldoon quashed a deportation order issued to Mr. Nagra
who had a criminal law conviction on two counts of conspiracy. The appeal of
the conviction wound up in the Supreme Court of Canada where the appeal was
allowed, the conviction set aside and a new trial ordered (R v Nagra,
[1994] 1 S.C.R. 355 at para 24). Justice Muldoon concluded that the deportation
order no longer had a “sustaining basis, and must be quashed” (Nagra, at
para. 31).
[40]
Since
Nagra, there have been two cases which are relevant. The decisions in Smith
v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 144 (TD) and Johnson v Canada (Minister of
Citizenship and Immigration), 2008 FC 2 are of some assistance.
[41]
In
Johnson, Mr. Johnson’s application for permanent residence on H&C
grounds was approved in principle, but was subsequently rejected after he was
convicted of criminal offences. After the rejection, the convictions were
overturned on appeal and the Crown did not proceed with a new trial. The Court
stated:
... in the present case, the officer did
not err by refusing Mr. Johnson’s application for permanent residence. The
convictions were in force when the negative decision was made and they remained
in force until set aside on appeal. Again, I note the consequence of upholding
a deportation order on the basis of a conviction giving rise to it was valid at
the time that the order was issued [Smith] is of much more imminent
effect than upholding, on the same basis, a negative decision on an inland
application for permanent residence. A new inland permanent residence
application can be filed if a subsequent appeal is successful. This makes the
analogy with the decision in Smith apt.
[42]
The
Applicant submits that the case of Johnson is distinguishable, as the ratio
of the case was tied to the fact that Mr. Johnson could file another
application on H&C grounds; thus, the Court’s decision had no severe
negative consequences. In the present case, the Applicant notes that he has now
lost his right to obtain permanent residence under s. 21(2) of the IRPA.
Contrary to these submissions, I am of the view that the decision in Johnson
was not founded on the basis of Mr. Johnson’s ability to apply for
H&C relief, but rather on the application of normal principles of judicial
review, where subsequent facts do not nullify prior decisions or render them
unreasonable.
[43]
The
case of Smith, above, involves a complicated set of facts. For my
purposes, the key fact was that Mr. Smith received a pardon for a criminal
conviction after a deportation order, based in part on that conviction, was
issued. Mr. Smith sought an order of certiorari, arguing that the
deportation order ceased to exist with the grant of the pardon. Justice MacKay
held that the deportation order was not issued in error, notwithstanding that
the pardon had been issued (Smith, at para. 21). With respect to the
request for an order of certiorari to quash the deportation order,
Justice MacKay stated the following (at para. 40):
In
my opinion, the deportation order, acknowledged to be valid when issued, is
not subject to being quashed or set aside by an order in the nature of certiorari.
None of the grounds for such relief set out in subsection 18.1(4) are here
established. [Emphasis added.]
[44]
The
Applicant submits that Smith can be distinguished on the basis that
Justice MacKay was dealing with a subsequent pardon which, as discussed in the
case, does not have the same effect of quashing the criminal conviction. I
agree. However, as noted by Justice MacKay, at paragraph 29, whether dealing
with an acquittal or a pardon, the effect on the immigration determination
would have been no different. The issue before Justice MacKay (and this Court)
is not whether the pardon had the effect of removing a criminal conviction ab
initio; rather the question is whether, as a matter of administrative law,
the immigration decision can be quashed. Justice MacKay held that it could not.
[45]
There
is also an administrative law principle that militates against holding the
earlier decision to be a nullity. The purpose of judicial review is not to
determine the correctness of the decision of the administrative tribunal in
absolute terms; the objective is to determine whether the decision of the
tribunal was reasonable on the record before it. Judicial review is not meant
to be a de novo application where the reviewing court is asked to decide
issues, which are raised for the first time in the application on evidence that
the tribunal never considered (Ochapowace First Nation v Canada (Attorney
General), 2007 FC 920; Chopra v Canada (Treasury Board) (1999), 168
FTR 273; Canadian Tire Corp v Canadian Bicycle Manufacturers Assn, 2006
FCA 56; Brychka v Canada (Attorney General) (1998), 141 FTR 258). Since
a valid security certificate was before the Officer in 2002, no reviewable
error exists.
[46]
In
it appears that, while the issue is not free from doubt (Nagra, above),
the better legal view is that a decision taken before a fundamental change in
evidence is not a nullity or void ab inititio. However, on a
going-forward basis, any such decision could not be enforced or otherwise acted
or relied on. In this case, the Officer’s decision is not a nullity. What I
believe, however, is that, based on decisions such as Kalicharan, the
Minister could not rely on that particular decision to take further steps to
remove the Applicant from Canada.
D. Breach
of natural justice
[47]
The
alternative argument of the Applicant is that the decision of the Officer
should be re-opened on the basis that it would be a breach of natural justice
to fail to do so.
[48]
There
are exceptions to the general rule that no documents that were not before the
decision-maker can be considered on judicial review (see, for example Abbott
Laboratories Ltd v Canada (Attorney General), 2008 FCA 354 and Liidlii
Kue First Nation v Canada (Attorney General), [2000] FCJ
No 1176). One of those exceptions is where there is an allegation that there
has been a breach of the rules of procedural fairness or natural justice. In my
view, the case before me does not fall within one of those exceptions.
[49]
In
support, the Applicant relies on Seyoboka v Canada (Minister of
Citizenship and Immigration), 2010 FC 488. That case involved a
decision of the Immigration and Refugee Board, Refugee Protection Division
(RPD) to vacate the refugee determination for Mr. Seyoboka. Pursuant to Rule 56
of the Refugee Protection Division Rules, SOR/2002-228 (the Rules), Mr.
Seyoboka applied to the RPD to reopen the decision to vacate the refugee
status, on the basis of new evidence that had arisen since the decision to
vacate was made. As noted by Justice O’Reilly, the RPD does not have jurisdiction
to reopen proceedings merely on the presentation of new evidence (Seyoboka,
at para. 24). However, pursuant to Rule 56(3) provides a statutory exception to
the general rule in cases where the new evidence establishes that there was a
failure to observe a principle of natural justice. In the case before the Court
in Seyoboka, Justice O’Reilly concluded that the RPD had not considered
the “nature and importance” of the new evidence and whether it demonstrated
that there had been a breach of natural justice. In his view, the RPD “must
turn its mind to the question of whether the applicant’s evidence shows that
the adverse finding against him or her was probably wrong.” Justice O’Reilly
overturned the decision of the RPD on the basis that the RPD had failed to
consider whether the evidence presented by Mr. Seyoboka showed that there had
been a breach of natural justice.
[50]
I
acknowledge the comments of my colleague in Seyoboka with respect to the
effect of new evidence on a prior decision of the RPD. However, without opining
on whether I agree with these remarks, I observe that the case of Seyobaka
is quite different in nature. At the end of the day, the decision at issue in Seyoboka
was overturned on the basis that the RPD had not carried out its statutory obligation
under Rule 56. Put simply, the RPD had not turned its mind to the evidence put
forward by Mr. Seyoboka.
[51]
The
case before me does not involve a statutory right of an applicant to have a
decision re-opened. There was no breach of natural justice on the part of the
Officer at the time the decision was made; there is none now.
[52]
Moreover,
from a practical perspective, I cannot conceive of how the interests of justice
are served by re-opening a decision that was valid in 2002 and remains so.
E. Effect
of this decision
[53]
The
Applicant asserts that there are significant benefits to the Applicant to being
able to proceed under s. 21(2) of IRPA. I agree. However, as noted
above, the Applicant is not without remedy. He can still bring an application
for in-Canada landing based on H&C factors under s. 25 of IRPA.
[54]
Under
either s. 21(2) or s. 25, the Applicant would be required to address the
question of his admissibility to Canada. It may be that the
Security Certificate is not the only reason why the Applicant could be found to
be inadmissible. If that is the case, the Applicant may be in a better position
under s. 25 where all relevant factors will be considered and weighed.
[55]
Permanent
resident status is the Applicant’s goal. The refusal of this Court to quash the
Officer’s 2002 decision is not, on its own, a bar to the attainment of that
objective.
VI. Conclusion
[56]
For
the above reasons, the application for judicial review will be dismissed. The
Officer’s decision is not a nullity. Nor is the Court prepared to conclude that
the decision should be reopened due to a breach of natural justice. The role of
the Court is not to reconsider decisions taken over a decade ago and in good
faith.
[57]
The
Minister proposed that I certify the following question:
In an application for judicial review
pursuant to s. 18.1 of the Federal Courts Act, can the validity of a decision
be challenged on the basis of a change to a material fact that occurred year
after the decision was made, notwithstanding the fact that the decision was
based upon a correct appreciation of the facts as they existed at the time the
decision was made?
[58]
The
Applicant opposes certification of this or any question.
[59]
I am
not prepared to certify the proposed question. The facts of this case are
highly unusual. I agree with the Applicant that the question “does not
transcend the particular facts of this case and is very much dependent on the
facts.” I conclude that the proposed question is not one of “general importance,”
as required by s. 74(d) of IRPA.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that :
1.
An
extension of time to bring this Application for Leave and Judicial Review is
granted;
2.
The
application for judicial review is dismissed; and
3.
No
question of general importance is certified.
“Judith
A. Snider”
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