[1] The respondents brought a motion for a stay of the order for their deportation which was scheduled for August 10, 2004 until such time as their application for leave and for judicial review of their negative Pre-Removal Risk Assessment (PRRA) dated July 14, 2004 was determined.

[2] The respondents' motion for a stay was adjourned by Gibson J. to August 23, 2004, and a stay granted in the interim period from August 9 to August 24, 2004 so that the parties could complete filing of their materials for the stay motion.

[3] On August 23, 2004, the respondents' stay motion was heard in its entirety by Shore J. with the Minister arguing that the motion for a stay of the removal order be dismissed. At that hearing, neither party requested an adjournment for any reason.

[4] At the conclusion of the argument, the Motions Judge immediately rendered his decision which was to adjourn the stay motion until June 1, 2005.

[5] Counsel for the Minister requested reasons for the adjournment but the Motions Judge responded that he was unable to give reasons because he felt that both parties were right.

[6] Counsel for the Minister requested that the Motions Judge deal with the stay motion itself but the Motions Judge declined to do so.

[7] The Minister, on September 1, 2004 launched a motion for reconsideration of the August 23, 2004 order and requested that the application for a stay be dismissed.

[8] On September 28, 2004, the Motions Judge issued what he referred to as a clarification (and not a re-examination) of his order of August 23, 2004. He still refused to deal with the stay motion in the following terms.

1. The Applicants are not to be removed from Canada pending a determination of their motion for a stay subsequent to their Application for leave and judicial review having been considered and finally determined;

2. Hearing of the motion is set for the very day of Monday, June 6, 2005 at 9:30 a.m., or so soon thereafter as may be heard at the premises of the Court in Toronto subsequent to the Application for leave and judicial review having been considered and finally determined. (bold added)

[9] The Minister has appealed the order of the Motions Judge arguing that the decision should be set aside as the Motions Judge "clearly failed to exercise his jurisdiction and otherwise exceeded his jurisdiction".

[10] The respondents argue that the Minister is precluded from appealing the interlocutory order of the Motions Judge by reason of the provisions of section 72(2)(e) and 74(d) of the Immigration and Refugee Protection Act ("IRPA").

72.(1) Judicial review by the Federal Court with respect to any matter - a decision, determination or order made, a measure taken or a question raised - under this Act is commenced by making an application for leave to the Court.

(2) The following provisions govern an application under subsection (1); (e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

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.

[11] The respondents argue that the above-noted provisions and the jurisprudence interpreting them demonstrate that any order made in the context of the underlying application for leave or linked to it in any way, is not subject to appeal. Specifically the sections quoted make it clear that no appeal lies from interlocutory judgments and as to final judgments, only when a serious question of general importance has been certified.

[12] The respondents further argue that the courts clearly have the jurisdiction to adjourn proceedings before them.

[13] In my view, while it is true that generally interlocutory orders including adjournments cannot be appealed in the context of cases such as this, there must be an exception where a judge refuses to exercise his jurisdiction and deal with the case.

[14] In the present case, the Motions Judge has adjourned the stay motion to a time (after a decision has been made on the PRRA motion) when the stay matter will be moot. He has therefore deprived the parties of ever having a decision on the stay motion, although by adjourning the motion as he has, in effect, granted a stay without considering the appropriate matters in so doing.

[15] In my view this amounts to a refusal to exercise his jurisdiction and a remedy must be available to any party where a judge simply refuses to deal with a matter before him either permanently or as here, by adjourning the matter to a time when the matter will be moot.

[16] In situations where a judge refuses to exercise his jurisdiction, the law is clear that the remedy is of a mandatory nature requiring the judge or court to exercise its jurisdiction.

R. v. D.B.T. [1996] N.S.J. No. 11 CAC NO. 117038

R. v. Thompson [1983] B.C.J. No. 2469 (1983) 3 DLR (4) 642 at 651 at para 15

[17] Other decisions which reinforce my view are those in which this Court has held that certain questions, including ones relating to jurisdiction, are appealable, even in the presence of the express removal of a right of appeal or right of judicial review on the main decision. In Zundel v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1982, Létourneau J.A. found an appeal based on reasonable apprehension of bias to be an exception to the privative clause precluding an appeal or judicial review from a determination of the reasonableness of a security certificate. Similarly, in Narvey v. Canada (Minister of Citizenship and Immigration ) (1999), 235 N.R. 305, Noël J.A. allowed an appeal, notwithstanding subsection 18(3) of the Citizenship Act. He found that a judge's bias, if demonstrated, would result in a lack of jurisdiction to render a decision, and such decision would accordingly not be one "under" section 18 of the Citizenship Act.

[18] I would therefore allow the appeal, set aside the order and send the matter back to the Motions Judge with a direction that he proceed to expeditiously make a decision on the application for a stay. In the circumstances there will be no order as to costs.

"J. EDGAR SEXTON"

J.A.

"I agree

Robert Décary j.a."

"I agree

M.Nadon J.A."

FEDERAL COURT OF APPEAL

Name of Counsel and Solicitors of Record

DOCKET: A-545-04

STYLE OF CAUSE: THE SOLICITOR GENERAL OF CANADA

AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. SAMPANTHAN SUBHASCHANDRAN ET AL

DATE OF HEARING: January 13, 2005

PLACE OF HEARING: Toronto, Ontario.

REASONS FOR JUDGMENT: SEXTON J.A.

CONCURRED IN BY: DÉCARY AND NADON JJ.A.

DATED: January 21, 2005

APPEARANCES BY: Ms. Amina Riaz For the Appellants

Ms. Barbara Jackman For the Respondent

SOLICITORS OF RECORD:

John H. Sims

Deputy Attorney General of Canada

For the Appellants

Jackman & Associates

Barristers and Solicitors

596 St. Clair Avenue West, Unit 3

Toronto, Ontario.

M6C 1A6. For the Respondent

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Canada (Solicitor General) v. Subhaschandran, 2005 FCA 27

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2005 FCA 27