Date: 20080710
Docket: A-244-08
Citation: 2008 FCA
234
Present: NOËL J.A.
BETWEEN:
Qianhui DENG,
Administrator on behalf of the
Estate of Shiming Deng
(deceased)
Appellant
(Applicant in the Federal Court)
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
(Respondent in the Federal Court)
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on July 10, 2008.
REASONS
FOR ORDER BY: NOËL
J.A.
Date: 20080710
Docket: A-244-08
Citation: 2008 FCA 234
Present: NOËL
J.A.
BETWEEN:
Qianhui DENG,
Administrator on behalf of the
Estate of Shiming Deng
(deceased)
Appellant
(Applicant in the Federal Court)
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
(Respondent in the Federal Court)
REASONS FOR ORDER
NOËL J.A.
[1]
The
respondent brings an application for an order dismissing the appellant’s
appeal, on a preliminary basis, on the ground that this Court is without
jurisdiction to hear it. The appeal was brought under the Immigration and
Refugee Protection Act and the application is based on the fact that no
question was certified by the Federal Court pursuant to subsection 74(4) of
that Act.
[2]
It is not
clear to me that this case does not come within the exceptional circumstances
where this Court will nevertheless assume jurisdiction to hear the appeal
because there was a refusal to exercise jurisdiction (see Canada (Solicitor
General) v. Subhaschandran, 2005 FCA 27).
[3]
In declining
to deal with the application for judicial review, the Applications Judge relied
on several decisions of the Federal Court which, according to him, suggest that
the grant of leave by a fellow judge, without mention of an extension of time
where one is sought in the application for leave, preserves the right of the
judge hearing the application for judicial review to deal with the extension of
time (the only decision directly on point appears to be Nayyar v. Canada
(Citizenship and Immigration), 2007 FC 199 at paragraph 7). That is the basis upon which the Applications
Judge declined to extend the time in this case, thereby denying the judicial
review application without dealing with its merits.
[4]
Given
that the Applications Judge was bound to deal with the merits of the
application subject only to his view that the leave granted earlier did not
have the effect of extending the time in conformity with the request to that
effect which had been made in the leave application, and given that the case on
point which is relied upon as authority has yet to be considered by this Court,
it is
preferable to allow the appeal to proceed, and let
the panel scheduled to hear the appeal determine whether this Court has
jurisdiction in this matter.
“Marc
Noël”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: A-244-08
STYLE OF CAUSE: Qianhui
DENG, Administrator on behalf of the Estate of Shiming Deng (deceased) and The
Minister of Public Safety and Emergency Preparedness
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Noël J.A.
DATED: July 10, 2008
WRITTEN
REPRESENTATIONS BY:
|
Lawrence
Wong
|
FOR
THE APPELLANT
|
|
R. Keith Reimer
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Wong Pederson Law Offices
Vancouver,
British
Columbia
|
FOR
THE APPELLANT
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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