Docket: A-54-15
Citation:
2016 FCA 182
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CORAM:
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PELLETIER J.A.
NEAR J.A.
BOIVIN J.A.
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BETWEEN:
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TAREK ZAGHBIB
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Appellant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS
FOR JUDGMENT
PELLETIER J.A.
[1]
Mr. Tarek Zaghbib appeals from the decision of
the Federal Court, reported as 2015 FC 97, [2015] F.C.J. No. 57, (the Decision)
dismissing his application for a writ of mandamus “directing the Respondent to investigate allegations that Ms.
Meriem Erramani … has committed an act of marriage fraud”: see Appeal
Book (A.B.) at p. 16. Ms. Erramani is Mr. Zaghbib’s estranged wife. The
difficulty with this case is that between the time Mr. Zaghbib’s application
was made and the time of the Federal Court hearing, the authorities addressed
Mr. Zaghbib’s complaint and decided to close their file. In the face of this
decision, Mr. Zaghbib argued before the Federal Court that the respondent closed
its file for the sole purpose of putting an end to his application which, he
says, amounts to bad faith. He now seeks a new investigation. The Federal Court
dismissed his application.
[2]
In my view, the Federal Court came to the right
conclusion but for the wrong reasons. I would therefore dismiss the appeal.
I.
FACTS
[3]
Mr. Zaghbib immigrated to Canada in 1999. In
2007, he mentioned to an acquaintance that he was looking for a wife; she
suggested that he consider her cousin, Ms. Erramani, who lived in Morocco. Mr.
Zaghbib made contact with Ms. Erramani by telephone and over a period of two
years, he developed his relationship with her over through that medium. In
November 2009, Mr. Zaghbib travelled to Morocco and on December 2, 2009, he and
Ms. Erramani were married.
[4]
Mr. Zaghbib returned to Canada later that month,
leaving his new bride in Morocco. He promptly applied to sponsor her
application for permanent residence. As part of that application, he signed a
sponsor’s undertaking in which he assumed responsibility to repay any social
assistance payments made to his wife during the three years following her
becoming a permanent resident.
[5]
Ms. Erramani’s application for permanent
residence was eventually approved. When she arrived in Calgary on November 26,
2011, she was met by Mr. Zaghbib and some of her cousins who live in Calgary. At
the request of Ms. Erramani’s cousins, Mr. Zaghbib agreed that she could spend
her first night in Calgary with them. The next day, Ms. Erramani telephoned
Mr. Zaghbib to advise him that she had never loved him and had no
intention of living with him. That same day, Mr. Zaghbib attended at the local
office of Immigration, Refugees and Citizenship Canada to make a complaint.
Shortly thereafter, Mr. Zaghbib submitted a Tip Sheet to the Canada Border
Services Agency (the CBSA) complaining that he was a victim of marriage fraud.
[6]
Mr. Zaghbib did not hear anything further from
his wife until June 2012, when she informed him that she had returned to
Morocco but that she wanted to reconcile. She said she would return to Canada
in November 2012 but she did not. Since then, there has been no communication
between them.
[7]
In October 2013, Mr. Zaghbib’s lawyer wrote to
the respondent seeking confirmation that Mr. Zaghbib’s complaint would be
investigated, given that the latter was still liable under his sponsorship
undertaking. Counsel did not receive the favour of a reply, with the result
that Mr. Zaghbib’s application for leave to commence an application for
judicial review seeking an order of mandamus was filed in December 2013.
Leave was granted in October 2014 and the matter was set down for hearing on
January 13, 2015.
[8]
In the meantime, the CBSA wrote to the parties
on January 27, 2014, apparently pursuant to Rule 9 of the Federal Courts
Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 as amended
from time to time. That Rule provides that where the application for leave
alleges that the written reasons of the tribunal have not been provided to the
applicant, the tribunal shall either send the applicant the reasons for the
decision or “an appropriate written notice.” The CBSA’s letter declared itself
to be “the written notice” in the case. It set
out the history of Mr. Zaghbib’s complaint, indicated that the matter was
assigned to a CBSA Inland Enforcement Officer on December 16, 2011 and
explained that competing priorities had interfered with the officer’s ability
to complete an investigation of what was considered to be a low priority
matter.
[9]
Subsequently, on November 17, 2014, the CBSA
wrote to the parties again. This letter also advised that it was “the written notice” in the case. In the letter,
Officer Martin, Acting Supervisor of Inland Enforcement, advised that the
officer responsible for this file had retired in August 2014. After reviewing
the officer’s caseload, Officer Martin closed the investigation as it was
determined that the CBSA would not be able to conduct an investigation within a
reasonable time frame. I shall refer to this letter as the Martin Letter.
[10]
One week later, on November 25, 2014, Officer
Martin swore an affidavit in support of the respondent’s position on the
application for mandamus (the Martin Affidavit) in which he deposed the
following:
4. From my review of the file, I determined
that there was insufficient evidence to proceed with a s. 44 report under the
Immigration and Refugee Protection Act. This determination was based on the
fact that the evidence that the marriage was not genuine consisted only of the
uncorroborated allegation of the Applicant.
5. From my review of the file, I also
decided to close the investigation for several reasons. Firstly, the
investigation qualified as a low priority since it was non-criminal in nature.
Secondly, the investigation was three years old and I considered it unlikely
that it would come to completion in the near future. If assigned to a new
investigation officer, it would be balanced against his or her own
investigative file load. A typical case load for an Inland Enforcement Officer
consists of up to 100 investigations, most of which would qualify as higher
priority than the present investigation.
6. The investigation can be re-opened at any
time if new evidence becomes available.
A.B. page 150.
[11]
Reading these letters and this affidavit in
context, it appears that the January 27, 2014 letter was a kind of status
report as it simply sets out the status of the investigation and explains the
lack of progress in concluding the matter. The Martin Letter, as supplemented
by the Martin Affidavit, appears to be intended to communicate the CBSA’s
decision and disposition of the complaint. The decision was that there was
insufficient evidence for the officer to form the opinion that Ms. Erramani was
inadmissible.
II.
THE DECISION UNDER REVIEW
[12]
After setting out the facts, the Federal Court
framed the issue before it as follows:
Was it within the discretion of the CBSA to
choose not to begin an investigation into the Applicant’s complaint, and should
an order for mandamus be issued to compel the Respondent to commence an
investigation in to the admissibility of the Applicant’s estranged wife
pursuant to sections 40 and 41 of the IRPA?
A.B. page 7.
[13]
The Federal Court identified reasonableness as
the appropriate standard of review, relying upon the Supreme Court’s decision
in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[14]
Before addressing the issue of mandamus,
the Federal Court took note of counsel’s proposal for a remedy other than an
order of mandamus:
During oral argument, counsel for the
Applicant invited the Court to consider an alternative remedy to an order for
mandamus, namely to order the matter returned to the Officer’s superior for reconsideration
in respect of whether or not to conduct an investigation and write a
section 44 report. That relief is not sought as part of this application, nor
is it appropriate. This is not an application under the IRPA.
Decision, at paragraph 19 (my emphasis).
[15]
The Federal Court then turned to the seven
criteria for the granting of an order of mandamus, as set out in the
Federal Court decision in Dragan v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 211, [2003] 4 F.C. 189, which, in turn, was based on
this Court’s decision in Apotex Inc. v. Canada (A.G.), [1994] 1 F.C. 742
(C.A.), aff'd [1994] 3 S.C.R. 1100.
[16]
The Federal Court then held that Mr. Zaghbib’s
application was not a justiciable matter because the question of whether and
how to investigate his complaint was not a determination order, measure or
question arising from the Act and as a result, there was no basis for an
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (the Act), reproduced below:
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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, subject to section 86.1, commenced by making an application for
leave to the Court.
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72 (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est,
sous réserve de l’article 86.1, subordonné au dépôt d’une demande
d’autorisation.
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[17]
The Federal Court then indicated, without more,
that it did not agree with Mr. Zaghbib’s allegation of bad faith on the part of
the respondent.
[18]
Acknowledging that since it had concluded that
the matter was not justiciable, it was not necessary to deal with the issue of
delay, the Federal Court nevertheless went on to consider that issue, one of
the considerations in an application for mandamus. It accepted the
respondent’s submissions that prioritization of files was a necessary strategy
employed by the CBSA to manage its officers’ significant workloads. In light of
all the circumstances, the Federal Court found that the Minister had reasonably
exercised his discretion to best fulfill the requirements of his position and
to promote the effective administration of the Act.
[19]
The Federal Court then went on to find that any
order made by the Immigration authorities would have no practical effect,
another of the considerations for the granting of an order of mandamus,
since it appeared from Mr. Zaghbib’s own affidavit that his wife was no longer
in the country. In addition, given the time it took to get his application on
for hearing, the period during which Mr. Zaghbib was responsible for any social
assistance received by his wife had expired. Such evidence as there was
suggested that she had not, in fact, received social assistance, at least not
in Alberta.
[20]
The Federal Court then held that even if the
matter were justiciable, Mr. Zaghbib would fail in his application for mandamus
because the respondent was under no public duty to act with respect to his
complaint “in the time frame he experienced”: Decision, at paragraph 29.
Furthermore, while Mr. Zaghbib was directly affected by his wife’s status, he
was not personally owed a duty of investigation in the time which had elapsed
in this case. The Federal Court’s view was that, while Mr. Zaghbib was
reasonably entitled to expect that the government would enforce its own
legislation, the delay in dealing with his application was not, in light of the
CBSA’s workload and priorities, outside the range of reasonableness.
[21]
The Federal Court concluded its analysis by
ruling that the balance of convenience did not favour the granting of an order
of mandamus.
[22]
Finally, the Federal Court certified the
following question at the request of the respondent:
Can a writ of mandamus be issued to compel
the Minister of Public Safety and Emergency Preparedness or the Canada Border
Services Agency to investigate a complaint of marriage fraud made by a private
citizen?
III.
ANALYSIS
[23]
The decision as to whether or not to grant an
order of mandamus is a discretionary order: see Harelkin v. University of
Regina, [1979] 2 S.C.R. 561 at page 574, [1979] S.C.J. No. 59; Canada (Director
of Military Prosecutions) v. Canada (Court Martial, Administrator), 2007 FCA
390, [2007] F.C.J. No. 1650, at paragraph 35. As such, it is reviewable on a
deferential standard except where it is based upon an error of law: see Turmel
v. Canada, 2016 FCA 9, [2016] F.C.J. No. 77, at paragraphs 9-12.
[24]
The parties approached the issues in this appeal
from different perspectives. The respondent focussed almost exclusively on the
issue of the conditions for the granting of an order of mandamus,
seeking to get a negative answer to the certified question. Counsel for Mr.
Zaghbib took a different tack. He attempted to put the Martin Letter and Affidavit
in the worst possible light so as to persuade this Court to grant his client a
remedy. Recognizing that he was constrained by the relief sought in the notice
of application but obviously aware of the problem of mootness, he argued that
some judicial flexibility was required to avoid the necessity of multiple
proceedings in order to secure some relief for his client.
[25]
In my view, the issues in this appeal are:
1- Did the Federal Court err in law in concluding that Mr. Zaghbib’s
complaint was not justiciable?
2- Was Mr. Zaghbib’s application for an order of mandamus
rendered moot by the Martin Letter and Affidavit?
3- Were the Martin Letter and Affidavit made in bad faith?
4- Is some form of relief available to Mr. Zaghbib in the context of
the current application?
5- The certified question.
1.
Did the Federal Court
err in law in concluding that Mr. Zaghbib’s complaint was not justiciable?
[26]
In Chiasson v. Canada, 2003 FCA 155,
[2003] F.C.J. No. 477, Strayer J.A. summarized the doctrine of justiciability
with admirable concision:
While the full scope
of the justiciability doctrine need not be analyzed here in an appeal on a
motion to strike, in my view a question is normally considered non-justiciable
if there are no objective legal criteria to apply or no facts to be determined
to decide the question, functions which normally are within the judicial role.
It may also be non-justiciable if some other branch of government is
conspicuously more appropriate, in our constitutional system, to decide the
matter.
Chiasson, cited above, at paragraph 8.
[27]
This is not a case in which there are no
objective criteria to apply or facts to be determined. Similarly, this is not a
question which some other branch of government is conspicuously more
appropriate to decide. This is not a case of non-justiciability.
[28]
While the Judge’s reasoning is not transparent,
it appears that his finding that Mr. Zaghbib’s complaint is not
justiciable is a function of his conclusion that the decision as to whether or
how to investigate is not a decision, determination, order, measure or question
arising under the Act and therefore there was no basis for an application for
judicial review under subsection 72(1) of the Act.
[29]
The focus on whether Mr. Zaghbib’s application
was a “decision, determination, order, measure or question arising under the
IRPA” betrays a misunderstanding of the thrust of section 72 of the Act. That
section does not create a right to have a matter arising under the Act
judicially reviewed. That right arises from sections 18 and 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7.
[30]
Section 18 grants the Federal Court exclusive
jurisdiction over judicial review of federal administrative action. Section
18.1 provides that an application for judicial review may be brought “by the Attorney General of Canada or by anyone directly
affected by the matter in respect of which relief is sought”. A matter
includes an order or decision but it is not limited to decisions: see Air
Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at
paragraphs 24-25. An allegation that a public officer has failed to discharge a
duty imposed upon her by law is a matter which is amenable to judicial review.
[31]
Section 72 simply imposes additional procedural
requirements, in the immigration context, on the exercise of the right to seek
judicial review. Subsection 72(1) provides that leave is required to commence
an application for judicial review. It does not define when judicial review is
available. The words “… any matter — a decision,
determination or order made, a measure taken or a question raised — under this
Act …” are not intended to limit the access to judicial review granted
by section 18.1 but rather to ensure that they are given the broadest scope so
as to include any matter, including “any question raised”.
[32]
I conclude that the question of whether the
respondent has an obligation to investigate Mr. Zaghbib’s complaint is a matter
arising under the Act and is amenable to judicial review.
[33]
The Federal Court may have had in mind that some
matters are so wholly administrative that they are not amenable to judicial
review. This line of reasoning is suggested by its reliance on Jarada v.
Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 14,
[2006] F.C.J. No. 7 [Jarada], a case in which a letter setting the date
for the applicant’s removal was the subject of an application for judicial
review, without any attack on the removal order itself or without any request
for a deferral of removal. The Court suggested that if every purely
administrative act were subject to judicial review, public administration in
Canada would grind to a halt: see Jarada, at paragraph 15. Jarada
is misleading in that the issue is not the administrative content of a
particular act, or administrative efficiency, but the extent to which the
applicant’s rights are affected. In 1099065 Ontario Inc. (c.o.b. Outer Space
Sports) v. Canada (Minister of Public Safety and Emergency Preparedness),
2008 FCA 47, [2008] F.C.J. No. 177, also relied upon by the Federal Court, the
Court dismissed an attempt to judicially review a purely clerical function,
namely a letter proposing one or more dates when the parties might meet. At
paragraph 9 of the case, this Court held that if an administrative act does not
“directly affect” someone, it is not subject to judicial review.
[34]
In this case, the purpose of the investigation
requested by Mr. Zaghbib was to determine if he had been the victim of marriage
fraud with whatever consequences that may have had for his rights under the Act
and his sponsorship undertaking. He was affected to the extent of his
contingent liability. It cannot be said that his right to seek that
investigation is a purely administrative matter. Nor, in my view, is it
self-evident that the exercise of the discretion as to when and how to launch
an investigation is beyond judicial review.
[35]
In my view, the Federal Court erred in law when
it concluded that Mr. Zaghbib’s application for mandamus was not
justiciable.
2.
Was Mr. Zaghbib’s
application for an order of mandamus rendered moot by the Martin Letter and
Affidavit?
[36]
It does not appear from the Decision that the
issue of mootness was raised in so many words by the respondent, the party in
whose interest it was to do so. On the other hand, it is clear from Mr.
Zaghbib’s counsel’s proposal for an alternative remedy that he was aware of the
difficulty posed by the fact that the respondent had finally turned its mind to
his client’s complaint and made a decision, a decision which he found
unsatisfactory and made in bad faith. In light of this pleading and the
tribunal record, the fact that the respondent had made a decision was clearly
before the Court.
[37]
It is also before this Court when one reviews
Mr. Zaghbib’s notice of appeal in which he seeks a direction “that the Minister of Public Safety and Emergency
Preparedness or the Canada Border Services Agency conduct a new investigation
into the matter by a new Officer”: A.B. at page 1. Before there can be a
new investigation, there must have been an “old” investigation.
[38]
In spite of the fact that the issue of mootness
was apparently not raised in express terms, it was incumbent on the Federal
Court to address the issue. Where the issue before the Court is the alleged
failure of the respondent to make a decision and the record discloses that a decision
was made, a Court cannot ignore reality because one or the other of the parties
chooses to do so.
[39]
Mr. Zaghbib’s notice of application seeks the
following relief:
For an Order of Mandamus directing the
Respondent to investigate allegations that Ms Meriem Erramani … has committed
an act of marriage fraud.
[40]
It appears from the portions of the Martin
Affidavit quoted earlier in these reasons that Officer Martin turned his mind
to the question of marriage fraud when he found that there was insufficient
evidence to proceed with a section 44 report. He made specific reference to the
fact of Mr. Zaghbib’s uncorroborated evidence. He also considered the low
priority of the investigation relative to other investigative priorities and
the likelihood that it would be completed in a timely manner. He also
considered the amount of time passed since the complaint was originally made.
[41]
I recognize that Mr. Zaghbib has something to
say about the quality of this decision. His counsel forcefully made the point
that if a timely investigation had been undertaken, the deficiencies which are
now relied upon by the respondent would not have been an issue. That said,
where the question is whether the respondent has done that which was sought in
the application for an order of mandamus, the Court’s role is not to
inquire into the merits of the decision unless it is so devoid of merit as to
amount to a disguised refusal to act.
[42]
While the decision in this case, and the process
leading to it, are far from ideal, they are not so bereft of any justification
as to amount to a refusal to act. The delay in commencing the investigation is
explained by the respondent’s allocation of limited resources and its
prioritization scheme. Officer Martin did address his mind to the complaint and
to the possibility of a report under section 44 of the Act. He considered
whether a timely resolution was likely. Without pronouncing myself as to
whether the decision is reasonable or not, it is sufficiently responsive to the
request for an investigation to stand as a decision for the purposes of
determining mootness in the application for mandamus.
[43]
As a result, I find that Mr. Zaghbib’s
application for an order of mandamus is moot in light of the decision
recorded in the Martin Letter and Affidavit.
3.
Were the Martin Letter
and Affidavit made in bad faith?
[44]
Counsel for Mr. Zaghbib argued that the decision
recorded in the Martin Letter and Affidavit was made in bad faith for the sole
purpose of putting an end to his application for mandamus. He points to
the fact that the Martin Letter, while dated November 17, 2014, reports that
the decision to close Mr. Zaghbib’s file was made October 17, 2014, 2 days
after the Federal Court granted him leave to commence his application for mandamus.
[45]
While I understand counsel’s suspicions, the
normal reaction to the allegation that a decision has not been made is to make
that decision. The fact that a decision is made in response to an application
for mandamus is not, in and of itself, evidence of bad faith.
[46]
In this case, the fact that the respondent
apparently did not plead mootness at the hearing before the Federal Court tends
to confirm that the decision was not made solely for the benefit of disposing
of the application for mandamus. If it had, counsel for the respondent
would have argued that Mr. Zaghbib’s application was moot. For whatever reason,
it appears that this did not happen. But even if it had, the point made above
would still hold, namely, an applicant who brings an application for mandamus
to force a decision-maker to make a decision cannot complain when the
decision-maker makes the decision before being ordered to do so by the Court.
[47]
I find that the respondent’s decision with
respect to Mr. Zaghbib’s complaint was not made in bad faith.
4.
Is some form of relief
available to Mr. Zaghbib in the context of the current application?
[48]
I am aware that the dismissal of this appeal
will force Mr. Zaghbib to start from scratch if he wishes to challenge the
respondent’s decision with respect to his complaint. He will have to obtain an
extension of time to file his application for leave pursuant to paragraph
72(2)(c) of the Act. Then he will have to obtain leave from the Federal
Court to proceed with his application for judicial review, which may or may not
be granted. In order to obtain leave, he will have to incur the expense of
preparing a new set of materials for use on the eventual application to set
aside the respondent’s decision. Such a course of events seems perverse when
one considers that Mr. Zaghbib is already before the Court.
[49]
It is true that once a question is certified,
the appeal before this Court (and the Supreme Court) is not limited to the
certified question: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at paragraph 12.
Does this allow Mr. Zaghbib to argue before us that the respondent’s
decision is unreasonable and ought to be set aside? That is a new question
which was not raised as such at the argument of the appeal. The respondent did
not defend the reasonableness of the decision, focussing as it did on the
question of whether the Minister could be compelled to launch an investigation.
It is not open to us to set aside a decision whose reasonableness an issue was
not before us.
[50]
Can we return the matter to the Federal Court
for consideration of whether the respondent’s decision was reasonable? The
effect of this would be to convert what began as an application for judicial
review seeking mandamus to an application for judicial review seeking to
set aside a specific decision. Since both are applications for judicial review,
one could argue that this is a single ongoing application for judicial review,
in which the relief sought changed in the course of the application. The
reality is a little more complex in that not only is different relief sought
but a different decision or matter is being reviewed.
[51]
A change in the subject matter of the judicial
review is essentially a new judicial review. The language of subsection 72(1)
requires leave for the commencement of an application for judicial review of
any matter (“a decision, determination or order made, a
measure taken or a question raised” – note the use of the singular). In
the same vein, Rule 302 of the Federal Courts Rules SOR/98-106
stipulates that an application for judicial review shall be limited to a single
order in respect of which relief is sought. To that extent, my earlier
reference to “a single ongoing application for judicial
review” is inapt.
[52]
What little authority there is on this question
in the Federal Court is against the proposition that an application for mandamus
can be converted into an application for judicial review of the resulting
decision: see Figueroa v. Canada (Minister of Foreign Affairs Trade
Development), 2015 FC 1341, [2015] F.C.J. No. 1415 [Figueroa];
Farhadi v. Canada (Minister of Citizenship and Immigration), 2014 FC 926,
[2014] F.C.J. No. 959 [Faradic].
[53]
In Faradic, the Federal Court held that
the conversion of an application for mandamus into an application for
judicial review of a decision was caught by the leave requirement in subsection
72(1) of the Act (see Faradic, paragraphs 19-23) while in Figueroa,
the course of the proceeding together with the absence of a satisfactory record
led the Court to refuse the applicant’s request that it judicially review the
decision which resulted from the application for mandamus.
[54]
As a result, I am unable to see how we might
provide Mr. Zaghbib with relief within the framework of the application which
was before the Federal Court.
5.
The Certified
Question
[55]
The jurisprudence of this Court is clear that it
has no jurisdiction to hear an appeal unless there is a legitimate certified
question before it. A legitimate certified question is one which was dealt with
in the Federal Court’s reasons and which is dispositive of the appeal: see Zaza
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004]
F.C.J. No. 368, at paragraph 12; Canada (Minister of Citizenship and
Immigration) v. Varela, 2009 FCA 145, [2010] 1 F.C.R. 129 at paragraph 43; O'Brien
v. Canada (Minister of Citizenship and Immigration), 2016 FCA 159, [2016]
F.C.J. No. 567, at paragraph 8.
[56]
The certified question in this case did not
arise on the facts because at the time the case was heard, a decision had been
made even though the Minister, for reasons best known to him, proceeded as
though none had. Furthermore, the Federal Court dealt with Mr. Zaghbib’s
application as one based on delay: “…he is not owed any
duty of investigation by the CBSA in the time frame he experienced”: see
Decision, at paragraph 29. The right to an investigation of a complaint of
marriage fraud by a private citizen qua citizen was not dealt with.
[57]
It follows from this that this Court has no
jurisdiction to hear this appeal which as a practical matter means that the
appeal must be dismissed. However, as the reasons set out above make clear, the
appeal would have been dismissed even if the Court had jurisdiction to hear the
appeal. Why then write reasons which are obiter and, as such, have no
precedential value?
[58]
The fact that a court is without jurisdiction to
hear an appeal does not mean that it cannot, as a courtesy to the litigant,
explain why the appeal would have failed in any event. Given the pressure on
judicial resources, such a courtesy is not to be expected as a matter of course
or even upon request. But there are cases where the circumstances are such that
the interests of justice are advanced by providing a litigant with evidence
that he has in fact been heard. In my view, this is such a case. The respondent
and Mr. Zaghbib were at cross-purposes before the Federal Court and before this
Court. Unfortunately, the Federal Court did not address the real issue between
the parties as it stood when they appeared before it. In the circumstances, I
believe that Mr. Zaghbib is entitled to a more responsive decision than the one
he got, a situation which I have attempted to remedy.
[59]
For all of these reasons, I would
therefore dismiss the appeal.
“J.D. Denis Pelletier”
“I agree
D.G. Near J.A.”
“I agree
Richard Boivin J.A.”
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