Dockets: IMM-7800-14
IMM-7801-14
Citation:
2015 FC 111
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 28, 2015
PRESENT: The Honourable Mr. Justice Roy
Docket:
IMM-7800-14
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BETWEEN:
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FNU KAMUANYA MUBENGA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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Docket:
IMM-7801-14
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AND BETWEEN:
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FNU KAMUANYA MUBENGA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
The respondent in this case, the Minister of
Citizenship and Immigration, is presenting to the Court two written motions that
have the same purpose. In both cases, the Court is being asked to [translation] “peremptorily
strike the applicant’s application for leave and judicial review”.
[2]
In docket IMM-7800-14, the applicant submits
that an oral decision issued on January 7, 2004, by a refugee protection officer
should be judicially reviewed. This so-called application for leave and
judicial review for mandamus was presented on November 24, 2014. For a
reason that was not provided, the respondent’s written submissions deal with a
decision dated February 19, 2004, as being the decision in respect of which the
application for judicial review was made. On its face, the application for
judicial review does not in any way address what is alleged to have happened on
February 19, 2004.
[3]
A brief explanation may clarify the issue.
Following a claim for refugee protection by the applicant when she arrived in
Canada in 2003, the procedure at that time provided that the applicant could be
required to appear at an interview. That was the case here. At the interview,
the person designated as the Refugee Protection Officer had the authority to
make a recommendation. Here, the record suggests that a recommendation to
accept the refugee claim without a hearing was made. However, that recommendation
had to be approved by a member of the Refugee Protection Division. This appears
not to have been the case because we have in the record a written note dated
February 19, 2004, which on its face rejected the recommendation and stated: “I remit this claim for determination at a hearing.” In
fact, a decision was issued by the Refugee Protection Division on August 25,
2004. It is that decision that is the subject of the application for judicial
review in docket IMM-7801-14.
[4]
Although the respondent brought his motion with
respect to the decision of February 19, 2004, it was not mentioned in the
application for judicial review. The application refers to the recommendation
that was favourable to the applicant.
[5]
The two motions were heard without having the
applicant’s submissions because the time limits for responding to the respondent’s
two motions had already expired. Despite this lack of intervention by the applicant,
the Court must review the respondent’s submissions to determine their merits. After
completing this review, the Court will grant the motion in docket IMM-7800-14
but dismiss the motion is docket IMM-7801-14. My brief reasons follow.
[6]
In docket IMM-7800-14, it is difficult to
understand how the applicant can wish to challenge a [translation] “decision” that was favourable to her. The
recommendation made was: “I recommend that this claim be
accepted without a hearing.” It is understandable that the respondent
inferred that the decision the applicant wished to challenge must have been the
one dated February 19. But that was not done. It therefore appears that the
application for judicial review with respect to the decision of January 7, 2004,
was, by definition, bound to fail. If the applicant wanted to dispute the rejection
of the recommendation, she had to do it properly.
[7]
But does the Court have jurisdiction to grant
the motion? The Minister is attempting to base his motion on rule 4 of the Federal
Courts Rules, SOR/98-106, which reads as follows:
Matters not provided for
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Cas non prévus
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4. On motion, the Court may provide for any procedural matter not
provided for in these Rules or in an Act of Parliament by analogy to these
Rules or by reference to the practice of the superior court of the province
to which the subject-matter of the proceeding most closely relates.
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4. En cas de silence des présentes règles ou des lois fédérales,
la Cour peut, sur requête, déterminer la procédure applicable par analogie
avec les présentes règles ou par renvoi à la pratique de la cour supérieure
de la province qui est la plus pertinente en l’espèce.
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Although the applicant was a resident of the
province of Quebec, the respondent made no reference to the practice of the
Quebec Superior Court. He also did not make an analogy to these Rules. Without
more, I am not satisfied that rule 4 can be readily applied in this case.
[8]
It seems that the jurisdiction relied on by the
respondent in this case arises from the following passage in David Bull
Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FCR 588 [David Bull
Laboratories]:
This is not to say that there is no
jurisdiction in this Court either inherent or through Rule 5 by analogy to
other rules, to dismiss in summary manner a notice of motion which is so
clearly improper as to be bereft of any possibility of success. [Page 600]
In my view, an inherent jurisdiction should
be invoked instead. The negative form adopted by Justice Strayer in David
Bull Laboratories stems from the fact that the Court had dismissed a motion
to strike in the context of a judicial review. For example, the following is
stated at page 597:
Thus, the direct and proper way to contest an
originating notice of motion which the respondent thinks to be without merit is
to appear and argue at the hearing of the motion itself. This case well
illustrates the waste of resources and time in adding on to what is supposed to
be a summary judicial review proceeding the process of an interlocutory motion
to strike.
In David Bull Laboratories, the Court
dismissed the motion to strike the originating notice of motion for
prohibition. The Federal Court of Appeal wanted to preserve the ability to have
motions heard where the notice of motion for judicial review is so clearly
improper as to be bereft of any possibility of success. However, I consider it
questionable to rely upon rule 4 because in and since David Bull
Laboratories the Federal Court of Appeal has addressed the scope of rule 4.
Thus, Sellathurai v Canada (Public Safety and Emergency Preparedness),
2011 FCA 223, [2012] 2 FCR 243 states:
[30] Rule
4 exists to ensure that there are no gaps of a procedural nature. Thus, in
cases such as Mohammed
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1310, [2007] 4 F.C.R. 300 Rule 4 has been applied in order
to fill a lacuna in the Rules for dealing with sensitive information. However,
in those cases there was no doubt that the proceedings were properly commenced
in the Federal Court and that it possessed jurisdiction (see Mohammed at paragraphs 18 to 20). What was missing was a
procedural mechanism for the protection of sensitive information within the
proceeding. Where, however, as in this case the jurisdiction of the Federal
Court is in doubt, Rule 4 cannot be relied upon to confer substantive
jurisdiction on the Federal Court.
[9]
In my view, the application for judicial review
in docket IMM-7800-14 is so amorphous as to be bereft of any possibility of
success (Leahy v Canada (Citizenship and Immigration), 2009 FC 509, para
12). The applicant seeks judicial review of a [translation]
“decision” that was completely favourable to her. Perhaps she wanted to object
to the decision to not follow the recommendation that was made. But that is not
what she did.
[10]
The conclusion I have arrived at in docket
IMM-7801-14 is different. The applicant’s application for judicial review is
not amorphous. Although she is seeking judicial review of a decision issued
more than 10 years ago, she is requesting an extension of time and relies on
grounds that I do not need to examine. The passage from David Bull
Laboratories cited above seems completely relevant to me. The Court should
not encourage “the waste of resources and time in adding
on to what is supposed to be a summary judicial review proceeding the process
of an interlocutory motion to strike.” If inherent jurisdiction can be
argued, it seems to me that it must be limited to cases where the notice of
motion is so clearly improper as to be bereft of any possibility of success.
What the respondent is trying to do here is to examine the merits of the motion
for judicial review that has been presented.
[11]
Accordingly, he submits that there is no valid
reason to grant an extension of time. With respect, this approach appears premature
to me. It will be for the applicant to argue the grounds that justify not only that
her application for leave should be granted because it satisfies the test in Bains
v Canada (Minister of Employment and Immigration), [1989] 3 FC 487, but
also that a period of 10 years before bringing her application is justifiable
under the Act. In return, the respondent will be able to argue that the
application for leave should be dismissed because of this delay.
[12]
In my view, it is good judicial policy to avoid
a multiplicity of proceedings in judicial review cases (David Bull
Laboratories, above). Furthermore, the caveat presented by the Federal
Court of Appeal in David Bull Laboratories after it indicated the
possibility of inherent jurisdiction in cases where the notice of motion is so clearly
improper as to be bereft of any possibility of success, should be quoted: “Such cases must be very exceptional and cannot include cases
such as the present where there is simply a debatable issue as to the adequacy
of the allegations in the notice of motion”.
[13]
I therefore conclude that the motion to strike
in docket IMM-7800-14 is one of those exceptional cases, and, accordingly, it is
granted. With respect to the motion to strike in docket IMM-7801-14, it is
dismissed.