Date: 20260317

Dockets: IMM-2977-17

IMM-775-17

Citation: 2026 FC 361

Toronto, Ontario, March 17, 2026

PRESENT: Madam Justice Whyte Nowak

ORDER AND REASONS

I. Overview

[1] The Applicants bring this motion under Rule 51 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules], appealing the Order of Associate Judge Crinson [Motion Judge] dated November 28, 2025 [Order].

[2] The underlying issues on this motion arise in the context of judicial review applications brought by the Applicants in which they challenge the provisions of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] and the Immigration and Refugee Protection Regulations SOR/2002-227 as they relate to the agreement commonly referred to as the Canada-US Safe Third Country Agreement [STCA], which together, render refugee claimants arriving from the United States ineligible to claim refugee protection in Canada. Following decisions of the Federal Court (Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770), the Federal Court of Appeal (Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72) and the Supreme Court of Canada (Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17), the Applicants’ applications for judicial review were remitted back to the Federal Court to determine the Applicants’ arguments under section 15 of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[3] As part of their case related to the section 15 Charter claim, the Respondents filed supplementary affidavits, including from Sharon Spicer, who was then Director General of the Canada Border Services Agency [CBSA]. The Applicants served the Respondents with a Direction to Attend and an Amended Direction to Attend [DTA] under Rule 91 of the Federal Courts Rules. The DTA contained a list of documents to be produced by Ms. Spicer at her cross-examination. When the Respondents failed to produce all of the documents listed in the DTA and refused to answer related questions during the course of the cross-examination, the Applicants brought a motion before the Motion Judge for directions under Rule 96(2) of the Federal Courts Rules to compel production of the disputed records. This is an appeal of the Order made by the Motion Judge on the Applicants’ motion.

[4] For the reasons that follow, this motion is dismissed. The Applicants are seeking to appeal an interlocutory order pertaining to the admission of evidence raised in a proceeding brought pursuant to section 72 of the Act; however, paragraph 72(2)(e) of the Act prohibits such an appeal.

II. Preliminary Issue

[5] The Respondents object to this appeal on the basis of paragraph 72(2)(e) of the Act, which states that, “no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.”

[6] The Applicants rely on the authority of Wong v Canada (Immigration, Refugees and Citizenship), 2022 FC 1515 [Wong], in which the Court held that the bar to interlocutory appeals in immigration matters at paragraph 72(2)(e) of the Act does not apply to proceedings for which leave has been granted (Wong at para 40). The Court’s decision in Wong was based on a consideration of the English and French versions of the text and the context of paragraph 72(2)(e) within the scheme of the Act (Wong at paras 28-30). Based on the scheme of the Act, the Court rejected the Minister of Immigration, Refugees and Citizenship’s [Minister] submission that paragraph 72(2)(e) of the Act must be read in two parts with the first part (“no appeal lies from the decision of the Court with respect to the application”) referring to an application for leave for which there is no appeal of a decision refusing leave, and the second part (“or with respect to an interlocutory judgment”) referring to all interlocutory judgments, even after leave is granted (Wong at paras 32-33). The Court found that none of the authorities relied upon by the Minister, including Froom v Canada (Minister of Citizenship and Immigration), 2003 FCA 331, were in the context of a proceeding for which judicial review had been granted, as was the case in Wong (Wong at paras 35-36).

[7] I agree with the Applicants that horizontal stare decisis dictates that I follow Wong unless I find that the rationale of Wong has been undermined by a subsequent appellate decision (Bentaher v Canada (Citizenship and Immigration), 2024 FC 1187 at para 20). The Respondents argue that Canada (Public Safety and Emergency Preparedness) v Ewen, 2023 FCA 225 [Ewen] does just that.

[8] While Ewen did not address or purport to overrule Wong, I agree that it undermines the holding in Wong for two reasons.

[9] First, the Federal Court of Appeal’s decision accepts the distinction in the reading of paragraph 72(2)(e) of the Act that the Court rejected in Wong treating interlocutory decisions in immigration matters as distinct from applications for leave for judicial review (Ewen at paras 15, 17). With respect to interlocutory decisions in immigration matters, Ewen holds that, “[i]t is beyond dispute that interlocutory decisions in immigration matters are not ordinarily subject to appeals pursuant to the preclusive clause contained in paragraph 72(2)(e) of IRPA” (Ewen at para 15).

[10] Second, the Federal Court of Appeal explains in Ewen what it means when it says that interlocutory decisions in immigration matters are not “ordinarily” subject to appeals by outlining the exceptions to the prohibition imposed by paragraph 72(2)(e) of the Act, none of which include the distinction decided in Wong and urged by the Applicants. The Federal Court of Appeal held:

Yet, paragraph 27(1)(c) of the Federal Courts Act, R.S.C. 1985, c. F-7 authorizes an appeal from an interlocutory judgment of the Federal Court. On the basis of that provision, a body of jurisprudence has developed, empowering this Court in exceptional circumstances to entertain an appeal of an interlocutory decision, or of a final decision where no question has been certified, despite the statutory bars found in the IRPA.

In a long line of cases going back to at least the decision of this Court in Subhaschandran v. Canada (Solicitor General), 2005 FCA 27 at paras. 13, 17, it has been recognized that appellate review may be available when a case raises “very fundamental matters” or “truly exceptional matters” that “strike right at the rule of law”: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144 at paras. 19-21. There is an additional exception to the rule that no appeal lies from interlocutory orders. Where the alleged error has been made in the context of a “separate, divisible judicial act”, and involves the exercise of a power that is not found in the IRPA, appellate review is not governed by that Act: Harkat v. Canada (Attorney General), 2021 FCA 209 at para. 25; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, 1997 CanLII 322 (S.C.C.) at para. 66 (Ewen at paras 16-17).

[11] Picking up on these exceptions, the Applicants alternatively argue in reply that the alleged errors on this appeal have been made in the context of a “separate, divisible judicial act” involving the Motion Judge’s exercise of powers arising entirely from the Federal Courts Act, RSC 1985, c F-7 and Federal Courts Rules (Ewen at para 17). I agree with the Respondents that this argument ignores that pursuant to subsection 75(2) of the Act and Rule 1 of the Federal Courts Rules, the Act takes precedence over Rule 51 of the Federal Courts Rules and the Court is bound to apply the prohibition in paragraph 72(2)(e) of the Act (Orhorhoro v Canada (Citizenship and Immigration), 2025 FC 1149 at paras 9-10).

[12] There is no question that the Order is not a final judgment, or one which determines the substantive rights of the parties (Ontario Federation of Anglers and Hunters v Alderville Indian Band, 2014 FCA 145 at para 21); it is an interlocutory order arising out of a proceeding commenced pursuant to section 72 of the Act, and therefore no appeal lies pursuant to paragraph 72(2)(e) of the Act and the authority of Ewen.

[13] While I am dismissing the appeal herein on the basis of this preliminary issue, for the sake of completeness, I note that I would have dismissed the Applicants’ appeal on its merits in any event. The Applicants have raised a number of grounds of appeal; however, I do not consider the Applicants to have shown a palpable and overriding error justifying this Court’s intervention (Housen v Nikolaisen, 2002 SCC 33 at paras 29-36).

[14] The grounds of appeal relate to two categories of documents, which the Applicants submit are relevant to their section 15 Charter argument and the issue of whether the government considered less rights-infringing means of implementing the STCA. In both instances, the Applicants are impermissibly asking this Court to make its own assessment of the level of burden associated with the Applicants’ document request (Alcon Canada Inc v Actavis Pharma Company, 2015 FCA 191 at para 26).

[15] The first category of documents includes records setting out the rationale for the exercise of the CBSA’s discretion related to Temporary Resident Permits and deferral requests [TRP and Deferral Decision-Making records]. The Respondents objected to the disclosure of these records as that they contain personal information as defined at section 3 of the Privacy Act, RSC 1985, c P-21 [Privacy Act]. The Motion Judge refused production of these records including by reason that it would be “unduly onerous” for the Respondents to go through each of these documents and redact personal information of each non-party (Order at para 8).

[16] The Applicants argue that section 3, defines “personal information” as information about an “identifiable individual,” and that given that they agreed to accept the records with the names of the non-party individuals redacted, the documents can no longer be said to contain personal information.

[17] I agree with the Respondents that the Applicants have downplayed the personal information likely to be found in the records sought. Given that it has been accepted that an individual has a privacy interest in their immigration history (Canada (Public Safety and Emergency Preparedness) v Sharif, 2025 CanLII 127091 (FC) at paras 13, 16), the Order is consistent with the “undeniably expansive” definition of personal information at section 3 of the Privacy Act (Dagg v Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para 68). I can therefore find no palpable and overriding error in the Order in the Motion Judge’s determination that it would be unduly onerous to affect the necessary redactions to TRP and Deferral Decision-Making records that would allow for their production.

[18] The second category of documents are drafts of CBSA’s Operational Bulletin dated February 28, 2024 [OB-2024-46]. The Respondents objected to this request including on the grounds that the drafts contain privileged information. The Motion Judge held:

The evidence on this motion establishes that there were 117 draft versions of the Operational Bulletin and 85 versions of the sought Standard Operating Procedures. It is disproportionate and unduly onerous to require the Respondents to track through each of those drafts, or even monthly drafts, and then attempt to tease out what is drafted based upon legal advice or the seeking of legal advice before producing such documents (Order at para 10).

[19] The Applicants submit that the Motion Judge’s reasoning is not consistent with the facts. They emphasize that the documents amount to six drafts of a 4-page document, and the Respondents have admitted they can track the precise version history for each draft. The Applicants suggest that the Motion Judge also misstated how much material would have to be reviewed by including reference to 85 drafts of the Standard Operating Procedures, which the Applicants were not seeking.

[20] The Motion Judge’s finding that the drafts either contained or implemented legal advice, was supported by the affidavit of Tara Traves, the Director of the Refugee Division, Intelligence and Enforcement Branch of the CBSA, whose evidence from personal experience in the drafting of the OB-2024-46, was that the drafting process involved input from the Department of Justice who provided ongoing legal advice before and during the drafting of OB-2024-46. It was open to the Motion Judge to find that identifying legal advice in this context would be difficult. In such circumstances, I find that the Order is consistent with well-settled law that solicitor-client privilege is not to be interfered with “except to the extent absolutely necessary” with any conflict being resolved in favour of protecting confidentiality (Samson Indian Nation and Band v Canada, [1995] 2 FC 762 (FCA) at 770).

[21] Given that I find that no palpable error has been shown with respect to these grounds of appeal, the Applicants’ various other arguments cannot be considered overriding, which is required in order for this Court to intervene on appeal of an Associate Judge’s interlocutory order.

III. Costs

[22] While the Respondents have asked for costs of this motion on the basis of special reasons (citing Arif v Canada (Public Safety and Emergency Preparedness), 2024 FC 1473 at para 12), I cannot agree with the Respondents’ characterization of the motion as “improper and unnecessary” given the decision in Wong.

IV. Conclusion

[23] The motion herein is dismissed in accordance with paragraph 72(2)(e) of the Act.

ORDER in IMM-2977-17 and IMM-775-17

THIS COURT ORDERS that:

1. The Respondents’ motion appealing the November 28, 2025, Order of Associate Judge Crinson is dismissed; and

2. There shall be no award of costs.

“Allyson Whyte Nowak”

FEDERAL COURT

SOLICITORS OF RECORD

MOTION IN WRITING CONSIDERED AT TORONTO, ONTARIO, PURSUANT TO RULE 51 OF THE FEDERAL COURTS RULES, SOR/98-106

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: