Date:
20121207
Docket: A-511-12
Citation: 2012 FCA 327
CORAM: BLAIS
C.J.
EVANS J.A.
MAINVILLE
J.A.
BETWEEN:
HD MINING
INTERNATIONAL LTD. and HUIYONG HOLDINGS (BC) LTD.
Appellants
and
CONSTRUCTION AND SPECIALIZED
WORKERS UNION, LOCAL 1611; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL
115; THE MINISTER OF IMMIGRATION AND CITIZENSHIP CANADA; THE MINISTER OF HUMAN
RESOURCES AND SKILLS DEVELOPMENT CANADA; and CANADIAN DEHUA INTERNATIONAL MINES
GROUP INC.
Respondents
REASONS FOR ORDER
BLAIS C.J.
[1]
This is a decision issued in response to two
Notices of Motion filed on November 30, 2012 by the respective parties on
appeal of a Federal Court proceeding IMM-11316-12 before the Honourable Justice
Campbell.
FACTS
[2]
On November 22, 2012, Justice Campbell
granted standing (the “Standing Order”) to the respondents in this matter,
namely the Construction and Specialized Workers Union, Local 1611 and the
International Union of Operating Engineers, Local 115 (the “Unions”), to bring
an application for leave for judicial review of the decision or decisions of an
officer or officers of Human Resources and Skills Development Canada to issue
labour market opinions (“LMOs”) under section 203 of the Immigration and
Refugee Protection Regulations, SOR/2002-227.
[3]
On November 23, 2012,
the appellants, HD Mining International Ltd. and Huiyong Holdings (BC) Ltd.
(the “Companies”) filed a Notice of Appeal with respect to Justice Campbell’s
decision to grant standing.
[4]
On November 30, the
Unions filed a Notice of Motion requesting that this court strike the Companies
Notice of Appeal. On the same day, the Companies filed a Notice of Motion in
this Court seeking a stay of Justice Campbell’s Standing Order pending
the determination of the appeal.
THE RESPONDENTS’ ARGUMENTS
[5]
First, the Unions submit that
this matter is interlocutory in nature and that appeals of interlocutory
judgments in immigration proceedings are barred by paragraphs 72(2)(e) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The Unions contend that Justice
Campbell’s decision did not dispose of the issues between the parties and that
the proceeding is still only at a preliminary stage. In addition, the Unions
note that 74(d) of IRPA bars appeal of a judgment in a judicial review matter
absent certification of where a serious question of
general importance. No such question has been certified.
[6]
Second, the Unions rely on this Court’s decisions
in Zündel v. Canada (Human Rights Commission), [2000] 4 F.C. 255, [2000]
F.C.J. No. 678,
and CBSA v. C.B. Powell, 2010 FCA 61, and others, in support of the general rule that
only in the most exceptional circumstances will interlocutory judgments be
subject to review before the final disposition of a matter.
[7]
Thirdly,
the Unions have argued that the decision to grant public interest standing is a
discretionary decision which should only be disturbed where the exercise of
discretion has been exercised on the basis of an error of fact or law or where
the discretionary decision raises questions vital to the final issues in the
case.
THE APPELLANTS’ ARGUMENTS
[8]
The Appellants submit that
the Standing Order which they appeal is not made pursuant to the Federal
Courts Immigration and Refugee Protection Rules and the Immigration and Refugee
Protection Act which, according to the Appellants, do not contemplate
questions of standing, but rather is made under section 18.1 of the Federal
Courts Act, RSC 1985, c F-7. As such, the Standing Order is not a “matter arising”
under IRPA and as a result, the Companies’ appeal is not barred by paragraphs
72(2)(e) or 74(d) of IRPA.
[9]
In
addition, the Appellants contend that paragraph 27(1)(c) of the Federal
Courts Act allows this Court jurisdiction to hear an appeal of an
interlocutory judgment.
[10]
Secondly,
the Appellants argue that the Federal Court is limited by the terms of section
18.1 of the Federal Courts Act and that those terms allow standing only
to the parties “directly affected” by the matter before the court.
[11]
Finally,
the Appellants argue that Justice Campbell was improperly influenced by a media
statement of the Minister of Human Resources and Skills Development Canada and
that in addition, Justice Campbell conducted the proceedings in a manner giving
rise to a reasonable apprehension of bias.
ANALYSIS
[12]
I have
carefully considered the parties submissions and for the reasons that follow
will allow the Respondents’ Motion, quash the Appellants’ Notice of Appeal and
dismiss the Appellants’ Motion requesting a stay pending the disposition of the
appeal.
[13]
As a
preliminary matter, I find that the Standing Order is interlocutory in nature
in that it in no manner disposes of the live issues in dispute in this case.
[14]
The
Appellants have submitted that paragraph 27(1)(c) of the Federal Courts Act
creates a right of appeal to this Court from interlocutory judgments of the
Federal Court. However, that right
of appeal may be barred by other statutes, including the IRPA. Mahjoub v. Canada (Minister of Citizenship and Immigration), 2011 FCA 294, at para. 8.
[15]
The
relevant provisions of IRPA read as follows:
no
appeal lies from the decision of the Court with respect
to the application or with respect to an interlocutory judgment (paragraph 72(2)(e))
[…]
an appeal to the Federal
Court of Appeal may be made only if, in rendering judgment, the judge certifies
that a serious question of general importance is involved and states the
question.(paragraph 74(d))
[16]
The
Appellants submit that the question of standing is not a “matter arising” under
IRPA. I disagree. To exclude preliminary procedural questions from the
category of matters arising under IRPA would strip section 72 of IRPA of its
purpose. Standing is a necessary precondition to any immigration matter brought
before the Federal Court. The interests at stake in a particular dispute and
the relation of the parties to those interests cannot be divorced from the
matter itself. As such, I characterize the issue raised on appeal as a “matter
arising” under IRPA.
[17]
The decision under appeal is an interlocutory
decision and, except in well-defined, narrow circumstances, appeals are not
available. Those circumstances include
where a judge refuses to exercise jurisdiction to decide a matter (Canada (Solicitor General) v. Subhaschandran, 2005
FCA 27) and where there is a reasonable
apprehension of bias on the part of the judge (Re Zundel,
2004
FCA 394).
[18]
The
Appellants’ submission that the terms of the Federal Court Act limit
standing before the Federal Court to direct interest standing is without merit.
This Court has granted public interest standing in the past, and in
circumstances unrelated to constitutional matters (see e.g. Public Mobile Inc.
v. Canada (Attorney General), 2011 FCA 194.) Despite the Appellants’ willingness to argue
that these decision are wrongly decided, this Court will not entertain a
collateral attack.
[19]
Finally,
after a careful scrutiny of the transcripts of the hearings before Justice
Campbell in this matter so far and particularly paragraphs 38 to 42 of the
Appellants written submissions on the motion to strike, I find no basis to
conclude that Justice Campbell’s statements or actions give rise to a
reasonable apprehension of bias.
[20]
For the
reasons articulated above, I find the Appellants’ appeal barred pursuant to
paragraph 72(2)(e) of IRPA. Therefore, the Motion to Strike should be allowed,
the Appeal should be quashed and the Motion for a Stay should be dismissed with
costs.
“Pierre
Blais”
“I
agree.
John
M. Evans J.A.”
“I
agree.
Robert M. Maiville
J.A.”
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