Docket: A-235-16
Citation:
2016 FCA 229
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CORAM:
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NOËL C.J.
DAWSON J.A.
STRATAS J.A.
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BETWEEN:
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LAWRENCE WONG
(BARRISTER AND SOLICITOR), AND KAI ZHAN LIANG
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Appellants
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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 appellants appeal from the order dated May
25, 2016 of the Federal Court (per Bell J.): 2016 FC 569. In that order,
the Federal Court dismissed a reconsideration motion brought under Rule 397(1) of
the Federal Courts Rules, SOR/98-106 by the appellant, Kai Zhan Liang. The
reconsideration motion sought to reverse the Federal Court’s denial of leave to
the appellant Liang to start a judicial review of a decision of a member of the
Immigration Appeal Division of the Immigration and Refugee Board.
[2]
The Federal Court found that the reconsideration
motion had no merit. Reconsiderations under Rule 397(1) are limited to
circumstances where the order does not accord with the reasons given for it or
a matter that should have been dealt with has been overlooked or accidentally
omitted. According to the Federal Court, no such circumstances were present in
this case.
[3]
The other appellant, Lawrence Wong, was counsel
in the Federal Court for the appellant Liang. He appeals from the Federal
Court’s award of costs on the reconsideration motion. During the motion, the
respondent Minister submitted that “special reasons”
were present warranting a $1,000 award of costs under Rule 22 of the Federal
Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 against
Mr. Wong personally. The Federal Court accepted the Minister’s submission and
made the award. In its view, counsel had “attack[ed]…the
integrity of the Court…based upon speculation and innuendo” during his
conduct of the motion (at para. 7). Further, it found that the motion had been “incurred improperly and without reasonable cause” (at
para. 7).
[4]
The appellants appealed to this Court. After they
filed their notice of appeal, the Registry referred it for direction. The
Registry queried whether the notice of appeal should be removed from the Court
file and the file closed because of a statutory bar against appeals in matters
such as this: para. 72(2)(e) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. In para. 72(2)(e), Parliament has
barred appeals from decisions of the Federal Court refusing leave to commence
an application for judicial review.
[5]
After reviewing the notice of appeal, this Court
formed the view that submissions should be received on whether the bar applies
and, if so, whether the notice of appeal should be removed from the Court file
and the file closed. In doing this, this Court was exercising a power given to
it under Rule 74 of the Federal Courts Rules. In a direction to the
parties, this Court set out certain questions related to the Court’s
jurisdiction to entertain the appeal. It invited submissions on them.
[6]
The parties have had a full opportunity to
address the Court’s questions. The respondent Minister filed submissions to the
effect that the notice of appeal should be removed from the Court file and the
file closed. The appellants responded, submitting that their appeal should
continue. The Minister filed a brief reply.
[7]
In my view, the statutory bar against appeals applies.
Thus, I would order that the notice of appeal be removed from the Court file
and the Court file be closed.
[8]
The appellants begin their submissions by suggesting
that Rule 74 cannot be used to remove a notice of appeal from the Court file. I
disagree. Rule 74 provides that “the Court may, at any
time, order that a document that is not filed in accordance with…an Act of
Parliament be removed from the Court file.” The Immigration and
Refugee Protection Act is an Act of Parliament. Para. 72(2)(e) of
that Act bars appeals to this Court. Thus, the filing of the notice of appeal
is not in accordance with the Act.
[9]
Further, there is clear authority explaining this
Court’s powers under Rule 74 and confirming that a notice of appeal can be
removed from the Court file in circumstances such as these: Rock-St. Laurent
v. Canada (Citizenship and Immigration), 2012 FCA 192, 434 N.R. 144.
[10]
The appellants also submit that the costs award
against counsel is something separate and apart from the subject-matter of
immigration and that somehow this allows them to evade the bar against appeals in
para. 72(2)(e) of the Act.
[11]
I disagree. The notice of appeal purports to appeal
an order of the Federal Court that determined both the merits of the
reconsideration motion and the issue of costs. The costs award is part and
parcel of the reconsideration motion and relates to counsel’s conduct of the
motion. The motion took place in a file that came into being under the Immigration
and Refugee Protection Act and concerned whether a refusal of leave under
the Act should be reconsidered. All proceedings in the file were prosecuted and
decided under the Immigration and Refugee Protection Act and were
regulated by the Federal Courts Citizenship, Immigration and Refugee
Protection Rules. The costs award is founded upon an exercise of discretion
under Rule 22 of those Rules. Thus, through and through, this matter falls
within the bar against appeals set out in para. 72(2)(e) of the Act.
[12]
A number of well-defined, limited exceptions to
the para. 72(2)(e) bar have been recognized in this Court’s
jurisprudence. One is the refusal of the Federal Court to exercise
jurisdiction: see, e.g., Subhaschandran v. Canada (Solicitor General),
2005 FCA 27, [2005] 3 F.C.R. 255.
The appellants contend that this exception applies here. It does not: the
Federal Court made an order dealing with the merits of the reconsideration
motion and thus exercised its jurisdiction.
[13]
The appellants submit that this Court has the
power to entertain their appeal under section 27 of the Federal Courts Act,
R.S.C. 1985, c. F-7. Section 27 is a general provision clothing this Court with
jurisdiction to hear appeals from decisions of the Federal Court.
[14]
I do not accept this submission. As a matter of
statutory interpretation, specific provisions addressing particular
circumstances can derogate from more general provisions of broad application:
see, e.g., James Richardson & Sons, Ltd. v. Minister of National
Revenue et al. [1984] 1 S.C.R. 614, 9 D.L.R. (4th) 1; Munich Reinsurance
Co. v. Canada, 2001 FCA 365, [2002] 1 C.T.C. 199 at para. 21. This is the
case here: the specific bars against appeals in the Immigration and Refugee
Protection Act, of which para. 72(2)(e) is one, derogate from the general
appellate jurisdiction of this Court in section 27 of the Federal Courts Act.
This Court has previously so ruled: Canada (Minister of Citizenship and
Immigration) v. Edwards, 2005 FCA 176, 335 N.R. 181 at paras. 4, 5 and 12; Huntley
v. Canada (Citizenship and Immigration), 2011 FCA 273, 426 N.R. 152 at
paras. 6-7; Mahjoub v. Canada (Citizenship and Immigration), 2011 FCA
294, 426 N.R. 49 at paras. 7-12.
[15]
The appellants submit that para. 72(2)(e)
does not apply where the appeal involves “constitutional
questions” or matters concerning “the Federal
Court’s role in the conduct of judicial review.” No authority supports
that proposition. In fact, this Court’s decision in Chung v. Canada (Public
Safety and Emergency Preparedness), 2015 FCA 31 is against it. The presence
in an appeal of constitutional questions or issues relating to this Court’s
role on judicial review is not a recognized exception to the bars against
appeals in the Immigration and Refugee Protection Act: see, e.g.,
Mahjoub, above; Es-Sayyid v. Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FCA 59, [2013] 4 F.C.R. 3.
[16]
The appellants spend much time in their
submissions arguing the merits of their appeal and, in particular, the
constitutionality of section 72 of the Immigration and Refugee Protection
Act. They suggest that all of section 72 of the Act, including the
requirement that leave to commence a judicial review be obtained from the
Federal Court, is unconstitutional. They do this without addressing a number of
binding decisions of this Court that have upheld the constitutionality of section
72 and sections like it: see, e.g., Krishnapillai v. Canada, 2001
FCA 378, [2002] 3 F.C. 74; Huntley, above at para. 14; Huynh v.
Canada, [1996] 2 F.C. 976, 197 N.R. 62. It is well-known that appeals are
statutory and there is no residual appellate jurisdiction guaranteed by the
Constitution: see, e.g., R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R.
689 at paragraph 50.
[17]
The lack of merit of an appeal does not normally
go to the Court’s jurisdiction to hear it. However, here, it does affect another
of the appellants’ submissions.
[18]
Above, I mentioned that there is no recognized
exception to the bar against appeals when parties raise constitutional
questions or issues relating to this Court’s role on judicial review. But, in
another submission, the appellants go further. They invite us to recognize a
new exception in such cases and allow their appeal to go forward.
[19]
I decline to do so. It would be all too easy for
parties to insert constitutional questions or issues relating to this Court’s
role on judicial review into a notice of appeal as a matter of course
regardless of their merit—in this case, despite their complete absence of merit
based on the authorities of this Court— and evade the bar against appeals in
para. 72(2)(e) of the Immigration and Refugee Protection Act.
Para. 72(2)(e) is the law of the land; it is no part of our role to
fashion an exception that effectively repeals Parliament’s bar.
[20]
I add that the appellants, or either of them, could
have launched their challenge in the Federal Court. In that Court, they could
have asserted that the Federal Court is constitutionally obligated to entertain
a full judicial review in these circumstances—not just an application for
leave—and that they are constitutionally entitled to a full right of appeal to
this Court. But they chose not to do so.
[21]
The same may be said for another constitutional
argument the appellants intend to make in this appeal. The appellants intend to
argue that an award of costs against counsel personally is unconstitutional. In
response to the Minister’s submission in the Federal Court that such costs were
warranted, the appellants had every opportunity to make that argument. But they
chose not to do so.
[22]
In the circumstances of this case, the
appellants’ failure to advance their constitutional arguments in the Federal
Court disables this Court from considering them. The arguments require an
evidentiary foundation: Mackay v. Manitoba, [1989] 2 S.C.R. 357, 61
D.L.R. (4th) 385. Evidence is needed on the nature, purposes and effects of the
statutory bar against appeals and awards of costs personally against counsel; having
not been received by the Federal Court, the evidence will not be present in
this Court.
[23]
Appellate courts cannot entertain new legal issues
on appeal if those issues require an evidentiary foundation, the parties did
not build that foundation in the first-instance court, and the rule against
fresh evidence on appeal applies: see, e.g., Quan v. Cusson, 2009
SCC 62, [2009] 3 S.C.R. 712; Performance Industries Ltd. v. Sylvan Lake Golf
& Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; Bell ExpressVu v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paras.
58-59; Somodi v. Canada (Minister of Citizenship and Immigration), 2009
FCA 268, 393 N.R. 395 at para. 5; see also Danson v. Ontario (A.G.),
[1990] 2 S.C.R. 1086, 73 D.L.R. (4th) 686, a summary dismissal of a constitutional
challenge to a procedural rule permitting awards of costs against counsel
personally because the challenger failed at first instance to lay a
satisfactory evidentiary foundation.
[24]
The constitutional arguments raised by the appellants
lie at the core of their notice of appeal. At a level of generality, the Federal
Courts Act and the Federal Courts Rules contemplate that the
necessary evidence in support of their constitutional arguments must be called
in the Federal Court, a first-instance court, not this Court, an appellate
court. In this sense, the notice of appeal conflicts with the Federal Courts
Act and the Federal Courts Rules.
[25]
For the foregoing reasons, I conclude that the
notice of appeal does not accord with the bar against appeals in para. 72(2)(e)
of the Immigration and Refugee Protection Act, the Federal Courts Act
and the Federal Courts Rules.
[26]
I also agree with the Minister’s submission that
the notice of appeal does not contain sufficient particularity to qualify as a “notice of appeal” as contemplated by the Federal
Courts Rules and thus is inconsistent with the Rules within the meaning of
Rule 74: see Rule 337(d) and Canada (National Revenue) v. J.P.
Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at
paras. 39-40 and 50.
[27]
Therefore, in accordance with Rule 74, I would
order that the notice of appeal be removed from the Court file and the Court
file be closed.
[28]
There are no special reasons under Rule 22 of
the Federal Courts Citizenship, Immigration and Refugee Protection Rules
that would warrant an award of costs against the appellants. Therefore, I would
not make any award of costs.
“David Stratas”
“I agree
Marc Noël C.J.”
“I agree
Eleanor R. Dawson J.A.”
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