Docket:
A-315-13
Citation:
2014 FCA 19
Present: STRATAS J.A.
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BETWEEN:
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NOE GAMA SANCHEZ
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Appellant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER
STRATAS J.A.
[1]
The appellant seeks an order staying this appeal
until the Supreme Court has rendered judgment in Hernandez Febles v. Canada (Minister of Citizenship and Immigration) (SCC No. 35215).
[2]
The Supreme Court will hear oral argument in Febles
on March 25, 2014. Febles is on appeal from this Court: 2012 FCA 324.
[3]
The appellant submits, correctly, that in the
decision under appeal (2013 FC 913), the Federal Court interpreted and applied
this Court’s decision in Febles. On appeal, this Court will follow Febles unless
the appellant can show that Febles is “manifestly wrong” in accordance
with Miller v. Canada (Attorney General), 2002 FCA 370. That is
a high standard to meet.
[4]
In light of that, the appellant submits that
this Court should stay this appeal until the Supreme Court releases its
decision in Febles. The appellant warns that if this Court dismisses
this appeal relying upon its decision in Febles, soon afterward the
Supreme Court might reverse Febles. In those circumstances, the
appellant would be prejudiced.
[5]
The respondent points to the potentially lengthy
delay that might result if the appeal is stayed. He adds that the public
interest lies strongly in favour of the prompt determination of immigration
proceedings, citing sections 72-74 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27.
[6]
With laudable candour, the appellant concedes
that if this Court stays the appeal, there will be delay, indeed perhaps
significant delay. The appellant concedes that the Supreme Court might take
several months after March 2014 to consider its decision. But nevertheless he
urges that this Court stay the appeal because of the “strong nexus” between his
appeal in this Court and Febles.
[7]
The appellant has correctly identified the
controlling authority in this motion: this Court’s decision in Mylan
Pharmaceuticals ULC v. AstraZeneca Canada Inc., 2011 FCA 312 at paragraphs
5-14.
[8]
In Mylan, the Court observed that the
test to be applied in this motion is whether it is in the interests of justice
to stay the appeal. The rather demanding three-fold test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 does not apply, as this Court
is not being asked to stay another body’s order or to suspend the operation of
a legislative provision.
[9]
The facts in Mylan, supra are
similar to those here – a pending appeal in the Supreme Court that might affect
a pending appeal in this Court.
[10]
The Court in Mylan refused the stay. It
noted that the Supreme Court often takes more than six months to render a
decision and there are instances where it has taken much longer. Weighing the
evidence before it, and noting the possibility of a very long delay, the stay
was refused in Mylan.
[11]
As in Mylan, I observe that granting the
stay in this case might result in a very long delay, a delay that would
prejudice the public interest in the prompt determination of immigration
proceedings. As the respondent notes, this is underscored by sections 72-74 of
the Act.
[12]
Also as in Mylan, I note that the Supreme
Court’s power to remand matters back to this Court
substantially mitigates or eliminates the potential prejudice to the appellant: see subsection 43(1.1) of the Supreme Court Act,
R.S.C. 1985, c. S-26 and see discussion of this power in Mylan at paragraph
24. On a motion under subsection 43(1.1), the Supreme Court has the power to
“order any further proceedings that would be just in the circumstances.” One
such proceeding is a remand of the matter back to this Court to consider the
application of the Supreme Court’s decision in Febles to the appellant’s
case.
[13]
If this Court has dismissed
the appeal but the Supreme Court has not yet rendered its decision in Febles,
the appellant can take the precautionary step of filing a motion with the
Supreme Court seeking an order under subsection 43(1.1) of the Supreme Court
Act. This would keep the appellant in the litigation stream, allowing him
potentially to take advantage of any change in the law wrought by the Supreme
Court in Febles: on this, see Yeager v. Day, 2013 FCA 258.
[14]
Accordingly, in my view, the appellant has
reasonable means available to protect himself if this Court dismisses his
appeal and the Supreme Court later reverses this Court’s decision in Febles.
[15]
The appellant has not
identified any other prejudice he will suffer if this appeal goes forward.
[16]
Accordingly, based on the
record before the Court and for the foregoing reasons, I find that the
interests of justice are against staying this appeal. Despite the appellant’s
able submissions, the motion will be dismissed.
"David Stratas"
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