Date: 20120227
Docket: A-263-11
Citation: 2012 FCA 66
CORAM: DAWSON J.A.
TRUDEL
J.A.
STRATAS
J.A.
BETWEEN:
KHAN KHOKHAR
Appellant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench orally at Toronto, Ontario on February 27, 2012)
DAWSON J.A.
[1]
This is an
appeal by Khan Khokhar from an order of the Federal Court made on June 7, 2011.
[2]
The order,
issued in Court file No. IMM-3647-11, provided that:
a.
the motion
of the applicant, Bhasmini Singh, for an order staying her
removal
from Canada was dismissed;
b.
an award
of costs, fixed in the amount of $1000.00, was made against Ms. Singh’s former
immigration consultant Mr. Khokhar; and
c.
a copy of
the Court's order was to "be brought to the attention of the
appropriate
governing bodies that Mr. Khokhar may be a member of for any
action they may
deem appropriate."
[3]
Mr.
Khokhar was not a party to that proceeding and had no notice that any order
would be made against him. At the hearing, the respondent did not ask for any
relief against Mr. Khokhar.
[4]
The
Judge's reasons for granting relief against Mr. Khokhar were expressed as
follows:
7. I would be remiss if I
did not consider the affidavit material filed by the Respondent with respect to
the activities of Khan Khokhar, an immigration consultant who acted for the
Applicant throughout her past immigration history. Mr. Khokhar wrote to
Caribbean Airlines on May 31, 2011 and advised the airline of the Applicant’s
pregnancy and stated that the Applicant was having complications with her
pregnancy. The letter also states “Please note that if she is allowed to travel
by your airline you will be held responsible for any problems that develop as a
result”. This correspondence was not conveyed to the Respondent by Mr. Khokhar
but was communicated by the airline to the Respondent just prior to the stay
application this morning. In my view such a letter was threatening in tone and
improper and sought to prevent the removal of the Applicant despite what this
Court may have ordered. Such behaviour must be discouraged as it is an affront
to both the immigration process and this Court. I would direct that a copy of
this Order be brought to the attention of the appropriate governing bodies that
Mr. Khokhar may be a member of for any action they may deem appropriate.
a.
Further, I
am of the view that an award of costs should be made against Mr. Khokhar
personally in this matter.
b.
For these
reasons, the motion for a stay of removal is dismissed and the Respondent is
entitled to costs fixed in the sum of $1,000.00 as against Mr. Khan Khokhar
personally.
[5]
The text
of Mr. Khokhar's letter was as follows:
We represent Ms. Bhasmini
Singh who is scheduled by Canada Border Services Agency Immigration Section to
depart Toronto (Pearson Int. Airport) to Guyana on June 7, 2011 at 23:30 p.m.
It is our duty to advise you
that the Canada Border Services Agency has NOT disclosed that the
passenger, Bhasmini Singh (our client) is pregnant and has only seven (7) weeks
left for delivery and is having complications related to her pregnancy. Her
Doctor advised that she needs bed rest, she is currently undergoing test [sic] and
follow up with her gynaecologist for further investigation of the
complications.
Her Doctor has advised that
she is not fit to travel until after her delivery; however, arrangements have
still been made for her removal from Canada
on June 7, 2011 via your airline. We enclose copies of supporting documents
from Dr. Allan H.H. Leung M.D.
Please note that if she is
allowed to travel by your airline you will be held responsible for any problems
that develop as a result.
We trust that this information
is adequate; however, if there is need for more information, please feel free
to contact the undersigned.
Thank you.
[6]
Mr.
Khokhar's letter in turn enclosed a letter from Dr. Leung, the text of which
stated:
This patient is attending my
office. Right now she is pregnant and in her second trimester. Recently she
developed dizziness, weakness and fainting spells. These symptoms are related
to her pregnancy and also resulted from stress and anxiety related to the fact
that she was ordered to leave Canada. She is at present undergoing
tests and will be seeing her gynecologist for further investigation and
follow-up. At the present time she is advised not to travel until she has
completed her investigations and consultation with her
gynecologist/obstetrician. She will begin her third trimester soon, it is
advisable that she does not travel until after her delivery.
Sincerely yours,
[7]
On this
appeal, the respondent fairly concedes that Mr. Khokhar was entitled to notice
of the Court's intention to make an order against him. The respondent also
concedes the Mr. Khokhar was entitled to an opportunity to be heard before an
order was made against him. The opportunity to be heard included the right to
adduce evidence on his behalf and to challenge the respondent's evidence. Mr.
Khokhar received neither notice of the Court's intention nor an opportunity to
be heard.
[8]
The
respondent argues, however, that this Court does not have jurisdiction to hear
an appeal from the decision of the Federal Court in the absence of
certification of a serious question of general importance (see: subsection
74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(Act)). The respondent does not make any submission with respect to the
application of subparagraph 72(2)(e) of the Act, relating to interlocutory judgments,
and we decline to consider it.
[9]
Subsection
74(d) of the Act provides:
|
74. Judicial review is subject to the
following provisions:
(d) 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.
|
74. Les règles suivantes
s’appliquent à la demande de contrôle judiciaire :
d) le jugement consécutif au
contrôle judiciaire n’est susceptible d’appel en Cour d’appel fédérale que si
le juge certifie que l’affaire soulève une question grave de portée générale
et énonce celle-ci.
|
[10]
In
subsection 74(d) Parliament has evidenced its intention to limit the right of
appeal to this Court by parties to applications for judicial review brought
under the Act. That said, we cannot read this provision as depriving a
non-party from a right of appeal in the rare circumstance where an order is
made against a non-party without any notice and without affording the non-party
any opportunity to be heard.
[11]
We
therefore reject the submission of the respondent that we lack jurisdiction to
hear this appeal in the unique circumstances before us.
[12]
Turning to
the merits of the appeal, in the circumstances here, where the order under
appeal was made without any notice to Mr. Khokhar and without affording him any
opportunity to be heard, we owe no deference to the findings of the Federal
Court Judge.
[13]
On the
record before us, portions of which are set out above, we are not satisfied
that the order under appeal can be sustained. This is particularly so because
at the hearing before the Federal Court the respondent did not seek costs or
any other relief against Mr. Khokhar.
[14]
For these
reasons, the appeal is allowed with costs and the order of the Federal Court as
it pertains to Mr. Khokhar is set aside. For clarity, the Federal Court's
direction with respect to Mr. Khokhar's governing bodies is of no effect.
“Eleanor
R. Dawson”
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