Date: 20171117

Docket: IMM-2328-17

Citation: 2017 FC 1050

[ENGLISH TRANSLATION]

Ottawa, Ontario, November 17, 2017

PRESENT: The Honourable Mr. Justice Roy

JUDGMENT AND REASONS

[1]               This applicant was granted leave for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. This is an application for judicial review of the decision by the Refugee Appeal Division [RAD], which refused to accept jurisdiction to hear Ms. Mathos’ appeal from the decision by the Refugee Protection Division [RPD].

[2]               In what could seem like a comedy of errors surrounding the coming into force of the provisions creating the RAD, which greatly complicated what could have been simple, this judicial review claims that the RAD has jurisdiction to hear an appeal from an RPD decision. That is not the case when we systematically examine the coming-into-force provisions for legislative texts, while avoiding intermingling.

I.                    Coming-into-force provisions

[3]               Originally, Parliament had chosen to set a date from which RPD decisions would be subject to appeal to the RAD when it was finally created. Thus, only RPD decisions issued after section 36 of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA] came into force would have been subject to appeal. Subsection 36(1) read as follows:

Of course, that meant that cases filed with the RPD in which there had not yet been a decision by the RPD when section 36 came into force were subject to appeal before the RAD.

[4]               Obviously, the date on which that provision came into force had to be determined if that date was not to be the date of royal assent (Interpretation Act, R.S.C. (1985), c. I-21, subsection 3(2)). Section 42 of the BRRA plays that role by stating that the section will come into force two years after the BRRA receives royal assent. If the government chooses to bring the BRRA into force before the two-year period ends, it is authorized by the BRRA to do so by order in council:

The BRRA received royal assent on June 29, 2010. Under subsection 42(1), section 36 came into force no later than June 29, 2012.

[5]               However, things would not be so simple. Sections 36 and 42 of the BRRA would be amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 [PCISA], which came into force on June 29, 2012. With the amendment of sections 36 and 42 in section 68 of the PCISA, not only were the decisions issued by the RPD before section 36 came into force not subject to appeal, but also refugee protection claims that were referred to the RPD before subsection 36(1) came into force:

Rather than have a set date for subsection 36(1) to come into force, as was the case in 2010, this time the flexibility was maximized and subsection 36(1) was only to come into force by an order in council from the government once subsection 42(1) was amended by section 69 of the PCISA:

[6]               Things were now clear. By order in council, the category of cases that could not be subject to appeal was broadened, as cases referred to the RPD before the date set out in the order in council would not be subject to appeal. In other words, only cases referred to the RPD after the 2^nd section 36 came into force were not sent to a process leading to an appeal before the RAD. Thus, the RAD would not be created with cases pending (known in government as a “backlog”). The dates set out in the BRRA for the coming into force of section 36 were no longer relevant. Only the date set out in the order in council applied. The deadline of June 29, 2012 no longer applied, nor did the rule from the BRRA, which created a “backlog”.

[7]               Thus, an order in council dated August 15, 2012 (SI/2012-65) set August 15, 2012, as the coming-into-force date for the new section 36. As a result, refugee protection claims referred to the RPD under the PCISA as of that date became subject to appeal before the RAD. But that was a mistake. It seems that the RAD would not be ready until later in 2012.

[8]               The error therefore had to be corrected. Parliament did so with its budget implementation act entitled Economic Action Plan 2013 Act, No. 1, S.C. 2013, c. 33, moving back the date on which appeals would be heard by the RAD. The period in which appeals to the RAD should not have been possible was from August 15, 2012 to December 15, 2012. The 2012 Act (PCISA) would have allowed an eventual appeal to the RAD for refugee protection claims referred to the RAD after the date set by an order in council, namely August 15, 2012. The 2013 budget implementation act corrected that date retrospectively, setting it at December 15, 2012 (see The Interpretation of Legislation in Canada, P.A. Côté, Carswell, 4^th Ed., at p. 140 et seq.) by way of section 167 of the Economic Action Plan 2013 Act, No. 1:

[9]               Although section 167 did not come into force until the Economic Action Plan 2013 Act, No. 1 received royal assent on June 26, 2013, its retrospective effect was limited to the period from August 15 to December 15, 2012. It only applies to applications referred to the RPD during that time. Refugee protection claims referred to the RPD after December 15, 2012, are subject to appeal before the RAD. But what about applications referred between August 15, 2012 and December 15, 2012? If the RPD decision was issued after June 26, 2013, for an application referred between August 15 and December 15, 2012, it is not subject to appeal before the RAD. Parliament wanted to avoid a “backlog” during the four-month period from August 15 to December 15, 2012. Moreover, for those who received a decision before June 2013 for cases referred after August 15, 2012, section 167 would have no effect, retroactive or retrospective. One might think that the legislator wanted to give the benefit of the full effect of the law to those who had completed the process before the RPD prior to June 26, 2013.

[10]           The retrospective portion of the law must be expressly decreed or necessarily implied by the language of the text (Tran v Canada (Public Safety and Emergency Preparedness), 2017 CSC 50, at para 43). Here, the sole purpose of section 167 is to have a retrospective effect for a specific category of cases, i.e. cases referred between August 15 and December 15, 2012, in which there was no decision before June 26, 2013. There is no doubt that Parliament acted expressly. Moreover, no constitutional right to an appeal before the RAD was argued, which would not have been an easy task given the state of the law.

[11]           One question thus remains. When does a decision take effect? The answer is found in rule 68 of the Refugee Protection Division Rules (SOR/2012-256):

II.                 Facts

[12]           No one is disputing that Ms. Mathos submitted her refugee protection claim on December 13, 2012, during the period in question, i.e. from August 14, 2012 and December 15, 2012. That refugee protection claim was not heard until March 7, 2017, and was dismissed by the RPD on March 23, 2017, after June 23, 2013. The applicant did not submit any arguments to the contrary.

III.               Conclusion

[13]           Therefore, by operation of the law alone, i.e. section 167 of the Economic Action Plan 2013 Act, No. 1, no appeal is permitted. In fact, the refugee protection claim was “referred” (in French, “déférée”) before December 15, 2012. The first condition set out in section 167 is met. The second is also met. Under section 167, the condition is that the RPD decision must be issued after June 26, 2013. In this case, it was issued on March 23, 2017.

[14]           As the two conditions are met, no appeal of the RPD decision before the RAD was permitted. Therefore, the application for judicial review must be dismissed, as the RAD did not have jurisdiction.

[15]           The parties agree that this is a matter of the application of transitory measures to the specific facts of the case. There is no serious question of general importance.

JUDGMENT in IMM-2328-17

THE COURT ORDERS that:

1.          The application for judicial review is dismissed.

2.          There is no serious question of general importance to be certified.

“Yvan Roy”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: