Date: 20060817
Docket: A-173-06
Citation: 2006 FCA 279
Present: RICHARD
C.J.
EVANS
J.A.
PELLETIER
J.A.
BETWEEN:
SHURLYN CATHY ANN JONES,
SHURNIKAY JONES
Appellants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR ORDER
EVANS J.A.
[1]
This is a
motion in writing under Rule 369 of the Federal Courts Rules brought by
the Minister of Citizenship and Immigration. The Minister requests the Court to
dismiss for mootness the appellants’ appeal from an order of Justice Mosley of
the Federal Court, dated April 10, 2006. Justice Mosley’s order states that their
application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board is dismissed in respect of certain
issues which he had decided.
[2]
In that decision,
dated May 5, 2005, the Board had dismissed the claim of Shurlyn Cathy Jones,
the principal claimant, and her daughter, Shurnikay, to be recognized in Canada as refugees.
[3]
Prior to
Justice Mosley’s decision, there were a number of applications for judicial
review in the Federal Court raising an important question of law affecting many
cases before the Board, namely, the validity of a procedural guideline
(“Guideline 7”) issued by the Chair of the Board under the power conferred by
paragraph 159(1)(h) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
[4]
Guideline
7 provides for “reverse order questioning” of a refugee claimant: that is, the
Refugee Claims Officer questions the claimant before the claimant’s lawyer. In
the Federal Court, the applicants argued that the Guideline was invalid on
various Charter and administrative law grounds, including procedural unfairness,
the deprivation of Board members’ adjudicative independence, and the fettering
of their discretion.
[5]
Nineteen of
these applications, including the appellants’, were consolidated and heard
together by Justice Mosley on March 7-8, 2006. On April 10, 2006, he rendered
his decision finding that Guideline 7 was valid and certified that each application
involved the same seven serious questions of general importance pursuant to
paragraph 74(d) of the Act. The order dismissed the application for
judicial review “with respect to the issues heard by the Court” at the hearing
held on March 7-8, 2006. Justice Mosley’s decision is reported as Benitez v.
Canada (Minister of Citizenship and
Immigration),
2006 FC 461.
[6]
Like
several of the nineteen applicants, the appellants also challenged the validity
of the Board’s rejection of their claim on other grounds, which were set down to
be heard in separate hearings before different Judges of the Federal Court. The
“non-Guideline 7” aspects of the appellants’ application for judicial review
were heard by Justice Snider on March 21, 2006.
[7]
In a
decision bearing the same date as Benitez, April 10, 2006, Justice
Snider found that the Board had committed a number of reviewable errors
unconnected with Guideline 7, allowed the appellants’ application for judicial
review, quashed the Board’s decision and remitted the matter for
re-determination by a differently constituted panel of the Board.
[8]
In her
order, Justice Snider directed the Board to defer the hearing of the
appellants’ claim “until any appeal of the decision regarding other aspects of
this application for judicial review is disposed of in the Federal Court of
Appeal or the time in which a party may file a Notice of Appeal to that Court has
expired, whichever last occurs.” Justice Snider’s decision is reported as Jones
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 405.
[9]
On April 21,
2006, the appellants filed their notice of appeal in this Court from the
decision of Justice Mosley. The Minister filed the present notice of motion on
July 18, 2006.
[10]
In support
of the motion to dismiss, the Minister says that the appellants’ appeal from the
order of Justice Mosley is moot, on the ground that Justice Snider granted the
very relief which the appellants would obtain if their Guideline 7 appeal
succeeded, namely, a quashing of the Board’s refusal of their refugee claims and
a remittal to the Board for re-determination. The appellants raise three issues
in response to the motion to dismiss their appeals.
[11]
First,
they argue that the Crown’s motion should be dealt with on the basis of an oral
hearing, not the written submissions from the parties under Rules 369. They
submit that if the Minister’s motion were granted, they would be deprived of an
important right, namely the right to appeal against the decision of Justice
Mosley. Further, they allege, the issues raised by the motion are sufficiently
complex that they can only be properly explored at an oral hearing.
[12]
I do not agree.
Rule 369 imposes no express limits on the exercise of the Court’s discretion to
dispose of a motion under Rule 369 in writing or after an oral hearing. Neither
the text of the Rule nor the jurisprudence supports the position that motions
to dismiss an appeal may not be determined on the basis of written submissions.
Rather, the Court exercises its discretion by asking whether, in all the
circumstances of the given case, it can fairly dispose of the motion without
the delay and additional expense of an oral hearing.
[13]
The
questions in dispute on this motion are purely legal and, in my opinion, not
unduly complex. None of the factors listed by Prothonotary Hargrave in Karlsson
v. Canada (Minister of National
Revenue)
(1995), 97 F.T.R. 75 at para. 10, as warranting an oral hearing is present
here.
[14]
I am
satisfied that, assisted by the full and able written submissions of counsel
for the parties, I am in a position to dispose fairly of the motion without an
oral hearing, whether held at the beginning of the hearing of the appeals, or at
any other time.
[15]
Second,
the appellants argue that, when Justice Mosley dismissed their application for
judicial review on the Guideline 7 issues, and certified questions for appeal,
they had an unqualified right to appeal his decision. This right could not be
removed by the order of Justice Snider allowing the application for judicial
review and quashing the Board’s decision. They had, they argue, only one
application for judicial review before the Federal Court, a fact that was not
altered when the Court bifurcated the application by separating the Guideline 7
issues from the other grounds on which they sought to have the Board’s decision
quashed.
[16]
I agree
that the appellants had only one application for judicial review before the
Federal Court, which the Court bifurcated in order to enable it to deal
efficiently and fairly with the pressing problem caused by the large number of
cases raising the same general legal issue about the propriety of an important
and pervasive aspect of the Board’s process.
[17]
When
Justice Mosley rejected the attack made by the applicants, including the
present appellants, on the validity of Guideline 7, and certified questions for
appeal, it is clear from his order that he was not disposing finally of the
application for judicial review, but only dismissing it on the Guideline 7
issues. Justice Snider’s order finally disposed of the application by granting
it.
[18]
The basic
problem with the appellants’ position is that, having been granted the relief
by Justice Snider that they sought in their application, they, in effect, want
to appeal against Justice Mosley’s reasons. While the parties do not dispute
that Justice Mosley’s order dismissing the application on certain issues is an
order from which the appellants may appeal, that appeal is rendered moot by the
order of Justice Snider.
[19]
The
appellants cannot have it both ways. They cannot both claim the benefit of
Justice Snider’s order for the purpose of having their case re-heard by the
Board, and, at the same time, assert that they have the right to challenge
Justice Mosley’s order denying them the relief which Justice Snider granted.
[20]
I am satisfied
that the procedure creatively adopted by the Federal Court for dealing with multiple
applications raising, among others, a single issue, does not result in any unfairness
to the appellants. I find it inconceivable that the Board would proceed with
the hearing of the appellants’ claim before this Court disposes of the appeals
from Justice Mosley’s order which go forward. It is immaterial that Justice
Snider’s direction to the Board to defer the hearing of the appellants’ claim may
appear to assume that the appellants’ appeal will proceed, when, as result of the
Court’s order disposing of this motion, it will not.
[21]
Since
other appeals from Justice Mosley’s order will be heard by this Court,
dismissing the appellants’ appeal does not preclude the Court from determining
the validity of Guideline 7. Indeed, I understand that the Court is likely to receive
submissions from the appellants’ counsel who is representing other appellants
in the Guideline 7 appeals. If these appeals are successful, the Board will
re-determine the present appellants’ refugee claim in the light of this Court’s
decision.
[22]
True, the
appellants may be adversely affected by a decision of this Court upholding the
validity of Guideline 7, a question on which they will not have been heard by
this Court. However, it is in the nature of adjudication, and the doctrine of
precedent, that a decision of one court may effectively determine the rights of
third parties in other proceedings. Moreover, since their counsel is
representing other appellants, the present appellants will indirectly have the
benefit of his submissions.
[23]
In brief,
the appellants’ position is not materially different from what it would have
been if all the issues in their application for judicial review had been heard
and decided by one judge, who found against them on the Guideline 7 issue, but
allowed their application on other grounds.
[24]
Accordingly,
the appellants’ appeal is moot and no useful purpose would be served if, in the
exercise of the Court’s discretion, I allowed it to proceed.
[25]
Third, the
appellants ask for costs, whether or not the Minister’s motion is granted, on
the ground that the Minister did not file this motion until July 18, 2006, more
than three months after the appellants had filed their notice of appeal. The
Minister must have been aware that, by mid-July, counsel would have done a lot
of work preparing for the appeal. Counsel filed the appellants’ appeal book on
July 24, 2006, after obtaining from counsel for the Minister a short extension
of time, on condition that the appellants’ counsel filed his memorandum of fact
and law no later than August 12, 2006. In these circumstances, counsel argues,
the appellants should be awarded costs on a solicitor-client basis in respect
of this motion.
[26]
Costs are
not awarded in proceedings arising under the Immigration and Refugee
Protection Act, unless “for special reasons” the Court so orders: Federal
Court Immigration and Refugee Protection Rules, SOR/93-22, section 22.
[27]
Despite
counsel’s submissions, I am not persuaded that the circumstances of this case
constitute “special circumstances”. In my opinion, the appeal was fundamentally
misguided and, having decided to pursue it, the appellants must be taken to
have assumed the risk that the normal costs consequences would follow. The
benefit of section 22 was available to the appellants if their appeal failed on
its merits; that benefit does not become a burden when their appeal is
dismissed summarily.
[28]
For these
reasons, I would grant the motion and dismiss the appeal for mootness.
“John M. Evans”
“I
agree.
J. Richard C.J.”
“I agree.
J.D.Denis Pelletier J.A.”
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