Docket: T-146-15
Citation:
2015 FC 1341
Ottawa, Ontario, December 3, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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JOSE LUIS
FIGUEROA
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Applicant
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and
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MINISTER OF
FOREIGN AFFAIRS TRADE DEVELOPMENT CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
On February 2, 2015, Jose Luis Figueroa filed an
application for an order of mandamus to compel the Minister of Foreign
Affairs, Trade and Development [the Minister] to make a decision regarding his
request for a certificate under s 10 of the Regulations Implementing the
United Nations Resolutions on the Suppression of Terrorism, SOR/2001-360
[the Regulations]. Pursuant to s 2(1) of the Regulations, the Minister may
recommend that a person’s name be listed in the schedule to the Regulations if
there are reasonable grounds to believe that the person is involved in
terrorist activity. Mr. Figueroa requested a certificate confirming that he is
not a person listed in Schedule II of the Regulations.
[2]
The Minister rendered a decision on July 17,
2015. By letter of the same date, William Crosbie, legal adviser to the
Minister, notified Mr. Figueroa that his request for a certificate was refused
because he had not demonstrated that he had been, or may have been mistaken
for, a listed person. Nor had any of his bank accounts or other assets been
frozen as a result of his being mistaken for a listed person.
[3]
The Minister has now brought a motion in writing
pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106 [the Rules]
for an order dismissing Mr. Figueroa’s application on the ground that it is
moot. Although Mr. Figueroa opposes the motion, he has not objected to its
disposition on the basis of written submissions.
[4]
As a general rule, the Court will deal with a
motion in writing unless it cannot be adequately addressed in this manner (see Federal
Courts Practice (Toronto: Thomson Reuters, 2015) at 829). This motion does
not raise questions of credibility, and the issues are relatively
straightforward. I am therefore satisfied that it is apt for determination on
the basis of written submissions.
[5]
For the reasons that follow, I have concluded
that Mr. Figueroa’s application for an order of mandamus to compel the
Minister to make a decision regarding his request for a certificate is moot.
This is not a case where this Court should exercise its discretion to decide a
moot question. In addition, the record is insufficient to permit an analysis of
the merits of the Minister’s decision. The application is therefore dismissed.
II.
Background
[6]
Mr. Figueroa is a citizen of El Salvador who
arrived in Canada with his wife in 1997. They have three Canadian-born
children. In May 1997, they made an unsuccessful claim for refugee status in
Canada.
[7]
In June 2002, Mr. Figueroa and his wife applied
for permanent residence from within Canada on humanitarian and compassionate
[H&C] grounds. Their H&C application was provisionally accepted in July
2004, which resulted in a statutory stay of their removal from Canada.
[8]
Following an interview with the Canada Border
Services Agency in July 2009, Mr. Figueroa was found to be inadmissible to
Canada pursuant to s 34(1)(f) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. Due to his past membership in the Marti para la
Liberacion Nacional, which opposed the military led regime in El Salvador, Mr. Figueroa
was found to have engaged in terrorism or to have been a member of an
organization that had engaged in terrorism.
[9]
A report was prepared pursuant to s 44 of the
IRPA, and an admissibility hearing was scheduled for April 29 2010. In May
2010, Mr. Figueroa was found to be inadmissible and a deportation order was
issued against him. Leave to commence an application for judicial review of
that decision was denied by this Court in August 2010.
[10]
By letter dated July 28, 2010, Mr. Figueroa
requested that he be exempted from the finding of inadmissibility on H&C
grounds pursuant to ss 25 and 34(2) of the IRPA (repealed in 2013 by the Faster
Removal of Foreign Criminals Act — Bill C-43, which received Royal Assent
on June 19, 2013).
[11]
On April 9, 2013, Mrs. Figueroa was granted
permanent residence on H&C grounds. However, on April 22, 2013, Mr.
Figueroa was informed that his application had been rejected. He brought an
application for judicial review of this decision, which was allowed in July, 2014.
Justice Mosley held that the decision was unreasonable because the Minister of
Citizenship and Immigration had failed to consider the nature of the conflict
in El Salvador and Mr. Figueroa’s personal involvement as a non-combatant advocating
for political reform (Figueroa v Canada (Minister of Citizenship and
Immigration), 2014 FC 673).
[12]
On February 2, 2015, Mr. Figueroa filed an
application for leave and for judicial review of the Minister’s failure to make
a decision regarding his request for a certificate pursuant to s 10 of the
Regulations. In his Notice of Application, Mr. Figueroa asked for two forms of
relief: (i) a writ of mandamus requiring the Minister to issue a
certificate pursuant to s 10 of the Regulations confirming that he is not a
person listed in Schedule II of the Regulations; and (ii) with leave of the
Court, a “writ or order of certiorari to review
the legality of the [Minister’s] refusal to issue a certificate under s 10 of
the Regulations”.
[13]
On March 26, 2015, Mr. Figueroa requested
material in the possession of the Minister pursuant to Rule 317. He
identified seven documents that he alleged were relevant to his application for
mandamus and for judicial review, including “a
current list to the Schedule II of the Regulations”. On May 5, 2015, Mr.
Figueroa sought an order granting him leave to conduct examinations for
discovery of six employees of the Department of Foreign Affairs, Trade and
Development [DFATD].
[14]
In a decision dated May 22 2015, Prothonotary
Lafrenière dismissed Mr. Figueroa’s request for production of a certified
tribunal record pursuant to Rule 317. Prothonotary Lafrenière observed that “it is plainly inconsistent to both seek mandamus
alleging that a decision has not been made and certiorari to quash a
decision that has been made”. He therefore concluded that the legality
of the Minister’s decision was not in issue, but only his alleged failure to
make a decision (Order of Prothonotary Lafrenière dated May 22, 2015, citing Alberta
Wilderness Association v Canada (Attorney General), 2013 FCA 190 at paras
38-40). Prothonotary Lafrenière also held that the production of documents
could not be compelled in an application for mandamus, and that Mr.
Figueroa had no right to conduct examinations for discovery of the six DFATD
employees he had identified.
[15]
Mr. Figueroa appealed the Order of Prothonotary
Lafrenière. In a decision dated July 6, 2015, Justice Gagné agreed with
Prothonotary Lafrenière that Mr. Figueroa’s application was limited to mandamus,
and that Rule 317 is not intended to compel the production of documents where
no decision has been made. She also agreed with Prothonotary Lafrenière that
Mr. Figueroa was not permitted to conduct examinations for discovery in an
application for judicial review.
[16]
On July 20, 2015, counsel for the Minister wrote
to Mr. Figueroa requesting that he discontinue his application for judicial
review because the matter had been rendered moot by the Minister’s decision of
July 17, 2015. Counsel for the Minister informed Mr. Figueroa that this would
not prejudice his right to file a further application for judicial review of
the Minister’s decision.
[17]
Receiving no response to this letter, on July
27, 2015, the Minister filed the present motion to dismiss Mr. Figueroa’s
application for mandamus on the ground that it is moot.
III.
Issues
[18]
The Minister’s motion raises two issues:
A. Should Mr. Figueroa’s application for mandamus be dismissed
on the ground that it is moot?
B. Should this Court determine the legality of the Minister’s decision
dated July 17, 2015?
IV.
Analysis
A.
Should Mr. Figueroa’s application for mandamus
be dismissed on the ground that it is moot?
[19]
There can be no doubt that Mr. Figueroa’s
application for an order of mandamus has been rendered moot by the
Minister’s decision of July 17, 2015.
[20]
The test for mootness was explained by the
Supreme Court of Canada in Borowski v Canada, [1989] 1 S.C.R. 342, [1989] SCJ No
14 at para 16 [Borowski] and by this Court in Bago v Canada (Minister
of Citizenship and Immigration), 2004 FC 1299 at para 11. The two-part test
requires the Court to decide: (i) whether the concrete dispute between the
parties has disappeared such that the issues have become academic; and (ii) if
the response to the first question is affirmative, whether the Court should
exercise its discretion to hear the case.
[21]
In Borowski, Justice Sopinka noted at
para 353 that the doctrine of mootness is an aspect of general policy or
practice that allows a court to decline to answer questions that have become
hypothetical or abstract, and where the decision of the court would have no
practical effect on the parties. The essential question that must be asked is
whether there exists some “live controversy” which affects or may affect the
rights of the parties.
[22]
Mr. Figueroa’s application for mandamus
is clearly moot because the Minister has now rendered a decision. Mr. Figueroa
alleges that the Minister failed to meet the statutory obligation to respond to
his request within 15 days. Even if there were merit in Mr. Figueroa’s
complaint, no remedy is required because a decision has now been made. A ruling
of the Court on the question of the Minister’s delay would have no practical
effect on the parties’ rights, and accordingly it would not be appropriate for
the Court to decide the matter.
B.
Should this Court determine the legality of the
Minister’s decision dated July 17, 2015?
[23]
Mr. Figueroa disagrees with the Minister’s
decision of July 17, 2015. However, there is no record before this Court that
would permit an analysis of whether the Minister committed a reviewable error
in refusing Mr. Figueroa’s request for a certificate pursuant to s 10 of the
Regulations.
[24]
The evidentiary record in this application has
been assembled on the understanding that Mr. Figueroa is seeking an order of mandamus.
Prothonotary Lafrenière and Justice Gagné have explicitly ruled that Mr.
Figueroa’s application is limited to mandamus. No certified tribunal
record has been produced pursuant to Rule 317, nor has the Minister filed a
memorandum of fact and law to address the merits of the decision.
[25]
If Mr. Figueroa wishes to formally dispute the
Minister’s decision of July 17, 2015, he may bring an application for judicial
review of that decision, accompanied by an application for an extension of time
in which to commence the proceeding.
V.
Conclusion
[26]
The application for an order of mandamus
is dismissed. The Minister seeks costs. If the parties are unable to agree upon
costs, they may make written submissions to the Court, not exceeding seven
pages, within 10 business days of the date of this decision.
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