Date: 20030910
Docket: A-373-03
Citation: 2003 FCA 331
CORAM: DÉCARY J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
ARTHUR FROOM
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on September 10, 2003.
REASONS FOR ORDER BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Date: 20030910
Docket: A-373-03
Citation: 2003 FCA 331
CORAM: DÉCARY J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
ARTHUR FROOM
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DÉCARY J.A.
[1] This is a motion by the respondent for an Order quashing the Notice of Appeal on the basis that the Federal Court of Appeal has no jurisdiction to entertain an appeal from an interlocutory Order in an immigration matter and, also, that, in the absence of a certified question, this Court has no jurisdiction. The interlocutory Order in issue, here, is an Order of Mr. Justice O'Reilly dismissing the appellant's motion for leave to file a further affidavit.
[2] The Notice of Appeal should be quashed on either of the grounds alleged by the respondent.
[3] On the one hand, an appeal from an interlocutory judgment is barred by paragraph 72(2)(e) of the Immigration and Refugee Protection Act (the Act), S.C. 2001, c. 27, which states:
| 72. (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.
|
|
72. (2) Les dispositions suivantes s'appliquent à la demande d'autorisation:
...
e) le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d'appel.
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(see Yogalingam v. Canada (Minister of Citizenship and Immigration), 2003 FCT 540, O'Keefe J.; [2003] F.C.J. No. 697 (F.C.T.D.) (QL)). There is no doubt that the Order at issue is an interlocutory order (see Canada (Attorney General) v. Hennelly (1995), 99 F.T.R. 320).
[4] On the other hand, the Court has no jurisdiction to entertain an appeal where no question has been certified: paragraph 74(d) of the Act, subsection 83(1) of the Immigration Act (see Grandison v. Canada (Minister of Citizenship and Immigration) (2000), 259 N.R. 81; (2000), 8 Imm. L.R. (3d) 180).
[5] I would allow the motion and quash the appeal, with costs to the respondent.
"Robert Décary"
J.A.
"I agree.
Marc Noël, J.A."
"I agree.
John M. Evans, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-373-03
STYLE OF CAUSE: Arthur Froom v. M.C.I.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Décary J.A.
CONCURRED IN BY: Noël J.A.
Evans J.A.
DATED: September 10, 2003
WRITTEN REPRESENTATIONS BY:
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Lorne Waldman
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FOR THE APPELLANT
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Alexis Singer
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Waldman & Associates
Toronto, Ontario
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FOR THE APPELLANT
|
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Morris Rosenberg
Ottawa, Ontario
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FOR THE RESPONDENT
|
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