Date:
20110105
Docket:
A-431-10
Citation: 2011 FCA 1
Present: MAINVILLE
J.A.
BETWEEN:
CHANTHIRAKUMAR
SELLATHURAI
Appellant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
MAINVILLE
J.A.
[1]
The
appellant is appealing an order of Justice Snider of the Federal Court dated
November 3, 2010 and bearing citation number 2010 FC 1082. By that order, the
judge asserted jurisdiction pursuant to section 87 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) to uphold national
security claims of privilege over certain documents which had been
inadvertently disclosed to the appellant and his counsel. The judge also
ordered the return of the disputed documents and the destruction of any copies
thereof made in any form.
[2]
The
respondent has brought a motion to have this appeal quashed on the ground that
this Court has no jurisdiction to hear it since the Federal Court judge did not
certify that a serious question of general importance is involved and did not
state the question as required pursuant to paragraph 74(d) of IRPA.
[3]
At
the heart of this appeal lies the issue of whether the Federal Court judge
should have proceeded to hear and determine the privilege claim pursuant to
section 87 of IRPA or pursuant to some other provision, notably section
38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (CEA).
[4]
The
Federal Court judge correctly identified this issue and extensively discussed
and analysed it in her reasons at paragraphs 9 to 29. The Federal Court judge succinctly
stated the issue as follows:
[10] The Minister
acknowledges that neither IRPA nor the Federal Courts Rules,
SOR/98-106 provide an explicit statutory procedure for issues of inadvertent
disclosure in the IRPA context. However, the Minister points to the fact
that the Federal Court has been expressly tasked by Parliament to protect
information in the IRPA context where disclosure would be injurious to
national security or endanger the safety of any person (IRPA, s.77 to
87.1). The Minister further argues that this Court has plenary supervisory
jurisdiction over the statutory scheme of IRPA which would allow this
motion to be heard pursuant to s. 87 of IRPA, combined with the “gap
rule” in s. 4 of the Federal Courts Rules.
[11] The
Applicant, on the other hand, argues that this motion cannot be heard pursuant
to s. 87 of IRPA because the inadvertent disclosure “has nothing to do”
with any current judicial review application. The Applicant argues that the
only vehicle for the Federal Court to determine this motion is s. 38 of CEA.
The Applicant further submits that it is in the interests of justice to apply
s. 38 of CEA, because this section, and not s. 87 of IRPA, allows
for the proper balancing of the interests for and against disclosure.
[12] For the reasons that
follow, I find the position of the Minister to be preferable. Specifically, I
conclude that this Court has jurisdiction to apply s. 87 of IRPA to the
Disputed Documents.
[5]
In
his notice of appeal, the appellant specifically raises as a ground for his
appeal that the Federal Court judge erred in law and exceeded her jurisdiction
in applying section 87 of IRPA rather than the provision of the CEA.
[6]
With
respect to judicial review of decisions made under IRPA, no appeal lies
from the Federal Court to this Court unless, in rendering judgment, the Federal
Court judge certifies that a serious question of general importance is involved
and states the question pursuant to paragraph 74(d) of IRPA. This Court,
however, has consistently held that this provision does not preclude an appeal
under section 27 of the Federal Courts Act, R.S.C.1985, c. F-7 on the
ground of jurisdictional error by a Federal Court judge: Subhaschandran v.
Canada (Solicitor General), [2005] 3 F.C.R. 255 at para. 17; Horne v. Canada (Minister of
Citizenship and Immigration), 2010 FCA 337 at paras. 3 and 4; Horne
v. Canada (Minister of
Citizenship and Immigration), 2010 FCA 55 at para. 4; Deng Estate v.
Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FCA 234; Lazareva
v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 39. See also: Zündel (Re),
2004 FCA 394, 331 N.R. 180; Narvey v. Canada (Minister of
Citizenship and Immigration) (1999), 235 N.R. 305 (F.C.A.).
[7]
Moreover,
though this Court may, pursuant to paragraph 52(a) of the Federal Courts Act,
quash an appeal in cases in which it has no jurisdiction, the standard for doing
so on a preliminary motion is high: Yukon Conservation Society v. National
Energy Board, [1979] 2 F.C. 14 (F.C.A.) at page 18; Union of British
Columbia Indian Chiefs v. Westcoast Transmission Co. (1981), 37 N.R. 485
(F.C.A.), [1981] F.C.J. No. 513 (QL) at para. 6; Abar v. Canada (Minister of
Employment and Immigration) (1990), 120 N.R. 237 (F.C.A.). In Yukon
Conservation Society, above, Justice Le Dain stated the standard as
follows:
Courts of Appeal will exercise
the power of quashing or summarily dismissing an appeal where there is such
manifest lack of substance in the appeal as to bring it within the character of
vexatious proceedings, or where by a change of circumstances the issue between
the parties or the "substratum of the litigation" has disappeared, so
that a judgment of the court would not serve any practical purpose, except as
to costs. See National Life Ass. Co. v. McCoubrey [1926] S.C.R. 277; Coca-Cola
Company of Canada Ltd. v. Mathews [1944] S.C.R. 385; Oatway v. Canadian
Wheat Board [1945] S.C.R. 204; Canadian Cablesystems (Ontario) Ltd. v.
Consumers Association of Canada
[1977] 2 S.C.R. 740.
[8]
In
Arif v. Canada (Minister of Citizenship and Immigration), 2010 FCA
157 at para. 9, this Court recently decided in the context of an appeal in a
citizenship case that the test set out under Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959 applies to a preliminary motion to strike the appeal. Under
this test, it must be “plain and obvious” that the appeal has no chance of
success.
[9]
In
this case, I cannot conclude that the appeal manifestly lacks substance, nor
can I conclude that it is plain and obvious that the appeal has no chance of
success.
[10]
As
noted by the Federal Court judge in her reasons at paragraph 10 reproduced
above, the respondent himself acknowledges that neither IRPA nor the Federal
Courts Rules, SOR/98-106 provide for an explicit statutory procedure for
issues of inadvertent disclosure in the IRPA context. The reasons of the
Federal Court judge also disclose that the issue is not without doubt, notably at
paragraph 28 of these reasons where reliance is placed on Rule 4 of the Federal
Courts Rules (the “gap rule”) in order to reach a conclusion on the matter.
[11]
Consequently,
in the circumstances of this case, it is preferable to allow the appeal to
proceed and thus allow the panel of this Court which will be appointed to hear
the appeal to determine whether this Court has jurisdiction in this matter.
[12]
For
these reasons, the respondent’s motion to quash shall be dismissed with costs, but
without prejudice to the respondent raising the jurisdictional issue under
paragraph 74(d) of IRPA on the merits of this appeal.
"Robert
M. Mainville"
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