Date: 20120625
Docket: A-108-12
Citation: 2012 FCA 192
Coram: NADON
J.A.
GAUTHIER
J.A.
STRATAS
J.A.
BETWEEN:
SHANTI MATHILDA
ROCK-ST LAURENT
Appellant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
The
appellant, Ms. Rock-St Laurent, appeals from an order dated March 1, 2012 made
by the Federal Court (per Justice Boivin).
[2]
This
is a matter arising under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. That Act bars appeals to this Court,
except where the Federal Court has stated a certified question. Where no
certified question has been stated, this Court has developed jurisprudence that
permits appeals only in well-defined, narrow circumstances.
[3]
Here,
the Federal Court did not state a certified question. When Ms. Rock-St Laurent presented
her notice of appeal for filing, the Registry did not accept it. The Registry
was concerned that this Court lacked jurisdiction to entertain an appeal in the
circumstances disclosed in the notice of appeal in the absence of a certified
question. So it referred the notice of appeal to this Court for direction.
[4]
As
explained below, this Court reviewed the notice of appeal and concluded that
there was a serious question concerning whether this Court has jurisdiction over
the appeal. It invited the parties to file submissions on the issue.
[5]
Having
received and considered those submissions, I find that this Court does not have
jurisdiction to hear this appeal. Accordingly, I would order that the notice of
appeal be removed from the Court file and that the Court file be closed.
A. Proceedings
in the Federal Court
[6]
Ms.
Rock-St Laurent brought an application for judicial review to the Federal Court
from a decision dated May 2, 2011 of the Immigration and Refugee Board (file
no. MB0-00092). The Board had rejected her claim to refugee protection. The
Board found that state protection was available and that Ms. Rock-St Laurent
had failed to avail herself of it before seeking refugee protection.
[7]
In
its Order dated February 3, 2012, the Federal Court said it was allowing the
application for judicial review. However, its reasons supported the dismissing
of the application, not allowing the application.
[8]
In
its reasons, the Federal Court found the Board’s finding on the availability of
state protection to be reasonable. Although not mentioned by the Federal Court
in its reasons, it is well-known that such a finding disentitles an applicant
to refugee status: Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689 at page 722; Hinzman v. Canada (Citizenship and Immigration),
2007 FCA 171. In Hinzman, this Court stated (at paragraph 42):
The appellants say they fear persecution
if returned to the United States. However, to successfully claim refugee
status, they must also establish that they have an objective basis for that
fear: Ward at page 723. In determining whether refugee claimants have an
objective basis for their fear of persecution, the first step in the analysis
is to assess whether they can be protected from the alleged persecution by
their home state. As the Supreme Court of Canada explained in Ward at
page 722, “[i]t is clear that the lynch-pin of the analysis is the
state’s inability to protect: it is a crucial element in determining whether
the claimant’s fear is well-founded.” [Emphasis in original.] Where sufficient
state protection is available, claimants will be unable to establish that their
fear of persecution is objectively well-founded and therefore will not be
entitled to refugee status.
[9]
By
leaving the Board’s finding on state protection in place, the Federal Court
should have dismissed Ms. Rock-St Laurent’s application for judicial review.
However, the Federal Court’s Order of February 3, 2012 allowed her application
for judicial review.
B. The Minister’s
motion to correct the Order under Rule 397(1)(a)
[10]
Ten
days later, the Minister brought a motion asking the Court to amend the
February 3, 2012 Order and bring it into accord with the reasons it gave. The
amendment sought was the dismissal of the application for judicial review. In
the Minister’s view, the Court simply made a mistake or slip when it made its
Order and wrote that the application was allowed.
[11]
The
Minister’s motion was based upon Rule 397(1)(a) of the Federal Courts
Rules. It provides as follows:
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397.
(1) Within 10 days after the making of an order, or within such other time as
the Court may allow, a party may serve and file a notice of motion to request
that the Court, as constituted at the time the order was made, reconsider its
terms on the ground that
(a) the order does not
accord with any reasons given for it;
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397. (1)
Dans les 10 jours après qu’une ordonnance a été rendue ou dans tout autre
délai accordé par la Cour, une partie peut signifier et déposer un avis de
requête demandant à la Cour qui a rendu l’ordonnance, telle qu’elle était
constituée à ce moment, d’en examiner de nouveau les termes, mais seulement
pour l’une ou l’autre des raisons suivantes :
a) l’ordonnance ne concorde pas avec les motifs qui, le cas
échéant, ont été donnés pour la justifier;
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[12]
The
Federal Court (again per Justice Boivin) received responding submissions
from Ms. Rock-St Laurent. She opposed the Minister’s motion on the basis that
Rule 397(1)(a) was not available to the Federal Court in these circumstances.
[13]
The
Federal Court granted the Minister’s motion and amended its February 3, 2012
Order. The amended Order, dated March 1, 2012, is identical in all respects to
the February 3, 2012 Order except that it now dismisses the application for
judicial review.
[14]
The
Federal Court declined to state a certified question for the consideration of
this Court. Nevertheless, Ms. Rock-St Laurent presented a notice of appeal to
the Registry of this Court. Despite the absence of a certified question, she
wants to appeal to this Court from the decision of the Federal Court.
C. This Court’s
jurisdiction to hear appeals under the Immigration and Refugee Protection
Act
[15]
The
Immigration and Refugee Protection Act provides that:
● “no
appeal [lies] from the decision of the [Federal] Court with respect to the
application [for leave to commence a judicial review] or with respect to an
interlocutory judgment”: paragraph 72(2)(e); and
● no
appeal from a judgment of the Federal Court that disposes of the merits of a
judicial review may be initiated unless the Federal Court judge “certifies that
a serious question of general importance is involved and states the question”
for consideration of this Court: paragraph 74(d).
[16]
Despite
this bar against appeals without a certified question, this Court has held that
it will entertain such appeals, but only in well-defined, narrow circumstances:
The well-defined, narrow circumstances are where a judge refuses
to exercise jurisdiction to decide the 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). However, this Court does not have jurisdiction to hear appeals
based on submissions, even submissions that appear to possess considerable
merit, that errors of law have been committed (Mahjoub v. Canada, 2011
FCA 294).
See Es-Sayyid
v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59 at paragraph 28.
D. Proceedings
in this Court
(1) The
notice of appeal
[17]
In
her appeal, Ms. Rock-St Laurent intends to argue that the Federal Court had no
jurisdiction under Rule 397(1)(a) to make the amended Order. This is
seen from the only specific ground of appeal listed in the notice of appeal:
…the Honourable Boivin J. committed jurisdictional
error in granting the Respondent’s motion to reconsider in that he was functus
officio and had no jurisdiction to apply Rule 397 in the circumstances of
the appellant’s case.
[18]
Ms.
Rock-St Laurent presented her notice of appeal to this Court’s Registry for
filing. However, the Registry initially did not accept it for filing. Upon
review of the notice of appeal, the Registry became concerned that the Court
lacked jurisdiction to hear the appeal. It referred the notice of appeal to the
Court for direction.
(2) Analysis
of Rules 72 and 74
[19]
Rules
72 and 74 potentially apply in this situation. They read as follows:
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72. (1) Where a document is submitted for
filing, the Administrator shall
(a) accept
the document for filing; or
(b) where
the Administrator is of the opinion that the document is not in the form
required by these Rules or that other conditions precedent to its filing have
not been fulfilled, refer the document without delay to a judge or
prothonotary.
(2) On
receipt of a document referred under paragraph (1)(b), the judge or
prothonotary may direct the Administrator to
(a) accept
or reject the document; or
(b) accept
the document subject to conditions as to the making of any corrections or the
fulfilling of any conditions precedent.
(3) A
document that is accepted for filing shall be considered to have been filed
at the time the document was submitted for filing, unless the Court orders
otherwise.
74. (1) Subject to subsection (2), the
Court may, at any time, order that a document that is not filed in accordance
with these Rules or pursuant to an order of the Court or an Act of Parliament
be removed from the Court file.
(2) An
order may be made of the Court's own initiative under subsection (1) only if
all interested parties have been given an opportunity to be heard.
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72. (1) Lorsqu’un document est présenté
pour dépôt, l’administrateur, selon le cas :
a) accepte le document pour
dépôt;
b) s’il juge qu’il n’est
pas en la forme exigée par les présentes règles ou que d’autres conditions
préalables au dépôt n’ont pas été remplies, soumet sans tarder le document à
un juge ou à un protonotaire.
(2) Sur
réception du document visé à l’alinéa (1)b), le juge ou le
protonotaire peut ordonner à l’administrateur :
a) d’accepter ou de
refuser le document;
b) d’accepter le document à
la condition que des corrections y soient apportées ou que les conditions
préalables au dépôt soient remplies.
(3) Sauf
ordonnance contraire de la Cour, le document qui est accepté pour dépôt est
réputé avoir été déposé à la date où il a été présenté pour dépôt.
74. (1) Sous réserve du paragraphe (2), la
Cour peut à tout moment ordonner que soient retirés du dossier de la Cour les
documents qui n’ont pas été déposés en conformité avec les présentes règles,
une ordonnance de la Cour ou une loi fédérale.
(2) La
Cour ne peut rendre une ordonnance en vertu du paragraphe (1) de sa propre
initiative que si elle a donné aux parties intéressées l’occasion de se faire
entendre.
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[20]
The
Registry’s power to refuse to accept documents for filing is set out in Rule
72. Under that rule, the Registry can either accept a notice of appeal for
filing or refer it to the Court for direction.
[21]
Under
Rule 72(1)(b), the Registry may refer documents to the Court in only two
circumstances: where it believes that the document is “not in the form required
by these Rules” or where the “conditions precedent to its filing have not been
fulfilled.”
[22]
In
this case, the Registry was correct in referring Ms. Rock-St Laurent’s notice
of appeal to the Court. That notice of appeal had to conform to an important “condition
precedent.” It had to be in Form IR-4: Federal Courts Immigration and Refugee Protection
Rules,
SOR/93-22,
Rule 20(1). Form IR-4 requires that the certified question be set out in the
notice of appeal. Ms. Rock-St Laurent’s notice of appeal did not set out a
certified question.
[23]
Accordingly, in an appeal to this Court under the Immigration
and Refugee Protection Act, whenever a notice of appeal is filed with this
Court and does not set out a certified question, Rule 72(1)(b) is triggered. In accordance
with that Rule, the Registry must forward the notice of appeal to the Court for
review.
[24]
When the Court receives a non-compliant notice of appeal from the
Registry, it may engage in two possible stages of review under Rules 72 and 74.
[25]
First,
under Rule 72, a single judge of the Court may review whether the notice of
appeal substantially complies with Form IR-4, i.e. although the notice
of appeal does not set out a certified question, nevertheless it sets out
grounds for appeal that, at least as a matter of form, address jurisdiction in a
tenable way.
[26]
For
example, the notice of appeal might allege that there was a reasonable apprehension
that the Federal Court judge was biased. As discussed above, that is a ground
upon which this Court can accept jurisdiction. If the allegation of bias is
tenable in the sense that the allegation is not stated in a bald or idle way but
rather is supported by some information set out in the notice of appeal, the
reviewing judge can conclude that the notice of appeal substantially complies
with Form IR-4 and can direct the Registry to file it.
[27]
Under
this first stage of review, where a notice of appeal presented to the Registry
does not contain a certified question and does not set out tenable grounds upon
which this Court can exercise jurisdiction, the notice of appeal is wholly
non-compliant and the reviewing judge should direct the Registry not to allow
the filing of the notice of appeal.
[28]
After
completing that first stage of review, the reviewing judge may wish to proceed
further. The notice of appeal might set out tenable grounds upon which this
Court can exercise jurisdiction, but the reviewing judge may still have an
articulable doubt as to whether jurisdiction is truly present. To try to
resolve that doubt, the reviewing judge may allow the filing of the notice of
appeal under Rule 72 and then engage in a second level of review under Rule 74.
[29]
Under
Rule 74, where the judge has a concern that the notice of appeal is “not filed
in accordance with …[provisions of] an Act of Parliament” – i.e.,
contrary to the bars on appeals to this Court under the Immigration and
Refugee Protection Act – on his or her own motion the judge can invite
submissions on the matter. Upon consideration of those submissions, two
outcomes are possible:
● It
may be clear that jurisdiction is lacking. In that case, Rule 74 permits the Court
to order that the notice of appeal to be “removed from the Court file.” Such an
order means that the appeal can progress no further.
● In
other cases, the appellant may have established a sufficiently arguable case
for jurisdiction or, even after submissions, the situation might remain unclear
or in doubt. In these cases, the Court can allow the appeal to progress under
the Rules in the usual manner. It would be for the panel hearing the appeal on
its merits to make the final decision concerning jurisdiction.
[30]
In
my view, if the Court decides under Rule 74 to order a notice of appeal to be
removed from the Court file for want of jurisdiction, it should act as a panel of
three judges rather than as a single judge. This Court’s uniform practice is to
act as a panel of three when dismissing proceedings that have been filed before
it. See, for example, Rule 382.4(2)(a), in which a proceeding may be
dismissed following a status review. Although Rule 382.4(2)(a) empowers
a “judge” to dismiss a proceeding, the practice of this Court is to do so only
by way of a panel of three judges.
[31]
Acting
under Rule 74, this Court can set a highly expedited schedule for the exchange
of written submissions or even hold a very brief teleconference to receive
oral submissions almost immediately after the Registry brings the notice of
appeal to the Court’s attention. After all, the jurisdictional issue is a
narrow one based on well-defined case law and it can be handled quickly.
[32]
The
effect of the foregoing analysis is that Rules
72 and 74 can be used in appropriate cases to screen out appeals under the Immigration
and Refugee Protection Act that this Court has no
jurisdiction to hear. If there were any ambiguity in these Rules, I would
invoke Rule 3. It provides as follows:
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3. These Rules shall be interpreted and applied so as
to secure the just, most expeditious and least expensive determination of
every proceeding on its merits.
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3. Les présentes règles sont interprétées et
appliquées de façon à permettre d’apporter une solution au litige qui soit
juste et la plus expéditive et économique possible.
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Notices of appeal should be drafted with
care and should supply a jurisdictional basis for the appeal either by
complying strictly with Form IR-4 or by establishing in the stated grounds for
appeal a jurisdictional basis for it. Using Rules 72 and 74 to screen out notices
of appeal that do not disclose a jurisdictional basis for the appeal is fair, consistent
with the objective of expedition, prevents parties from incurring unnecessary
costs, and ensures that the scarce resources of the Court are devoted only to
cases that are properly before it.
(3) Application
of Rules 72 and 74 to this case
[33]
Acting
under Rule 72, the Registry forwarded Ms. Rock-St Laurent’s notice of appeal to the Court.
It came to me, acting at that time as the duty judge. In retrospect, based on
the above analysis, I could have acted under Rule 72 because this notice of
appeal fails to set out a certified question and fails to set
out grounds for appeal that address jurisdiction in a tenable way. However, in this
case, I decided to allow the notice of appeal to be filed under Rule 72 and
then, under Rule 74, I invited the parties to provide submissions on the matter.
[34]
Accordingly,
a panel of three judges of this Court was set. The panel has received and considered
the parties’ submissions.
[35]
As
mentioned above, the only stated ground of appeal in the notice of appeal is
the Federal Court judge’s disposition of the motion under Rule 397(1)(a)
and his decision to amend his Order.
[36]
This
ground does not fall within the well-defined, narrow circumstances in which
this Court will entertain an appeal.
[37]
This
is a matter related to the Federal Court judge’s consideration of the merits of
the issue, a subject-matter that cannot be appealed to this Court in the
absence of a certified question. The Federal Court judge adjudicated the merits
of the matter before him and issued an Order. However, the Order contained an
error. Acting on a motion under Rule 397(1)(a), the judge corrected a
mistake in his Order to bring it into accord with the reasons on the merits he had
already given.
[38]
In
doing this, the judge did not refuse to exercise jurisdiction over the matter
or create a reasonable apprehension of bias.
[39]
It
follows that the notice of appeal is inconsistent with the Immigration and
Refugee Protection Act and our Court’s associated jurisprudence, both of
which forbid appeals to our Court in these circumstances. Therefore, under Rule
74, the notice of appeal should be removed from the Court file.
E. Proposed
disposition
[40]
For
the above reasons, I would order that the notice of appeal be removed from the
Court file. The appeal cannot proceed. Therefore, I would also order that the
Court file be closed.
"David
Stratas"
“I
agree
M. Nadon J.A.”
“I
agree
Johanne Gauthier J.A.”
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