Date: 20030410
Docket: IMM-1241-03
Neutral citation: 2003 FCT 427
BETWEEN:
LETWLED KASAHUN TESSMA (AYELE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARGRAVE P.
[1] The Applicant requests the stay of this application until his first judicial review proceeding, IMM-5652-02, has been dealt with. Of contention and interest is the test to be used for a stay "in the interest of justice" pursuant to section 50(1)(b) of the Federal Court Act.
BACKGROUND
[2] Both judicial review files involve the same parties. This second judicial review proceeding, IMM-1241-03, which I will also call the 2003 proceeding, involves a review of a tribunal's decision that it would not be contrary to the Charter of Rights to issue a removal order. The Applicant submits that the 2003 proceeding will involve detailed and extensive constitutional argument, including giving notice of a constitutional question to the various Attorneys General.
[3] By proceeding IMM-5652-02, which I will also call the 2002 proceeding, the Applicant seeks review of a finding arising out of an admissibility hearing. It revolves about the statutory construction and interpretation of section 36(3)(e) of the Immigration and Refugee Protection Act, by which inadmissibility for serious criminality may not have as its basis an offence under the Young Offenders Act, here the Applicant having been tried and convicted under section 16 of the Young Offenders Act, thus receiving an adult sentence. The 2002 proceeding is the further advanced of the two, the parties now awaiting determination of whether leave to proceed will be granted.
[4] The Applicant submits that a stay of the 2003 proceeding, in favour of going forward with the 2002 proceeding, would be sensible for it would avoid work and expense, including that of constitutional notice under section 57 of the Federal Court Act, should the Applicant succeed with the 2002 proceeding. In such an instance the 2003 proceeding would become moot and academic. The Applicant says that there would be no prejudice to the Respondent by reason of any stay. However, quite properly, counsel for the Applicant
notes that were there to be a deportation order between now and the ultimate conclusion of the present proceedings, that the Applicant would oppose such, including the use of the fact that the Applicant is a father of a Canadian child.
[5] Here I would observe, on the evidence presented on this motion, that I am satisfied that there is no attempt to manipulate the legal process in order that the Applicant might remain longer in Canada. Rather, the second judicial review proceeding is mandated by the time limit under section 72 of the Immigration and Refugee Protection Act. This provision may start time running, for a review application, not just when the decision is first communicated to a party, as was the case under section 18.1(2) of the Federal Court Act, but also when an applicant "otherwise becomes aware of the matter" as provided in part of section 72(2)(b) of the Immigration and Refugee Protection Act.
CONSIDERATION
[6] The Applicant's case is based generally upon Federal Court Rule 3, that the Rules be interpreted in order to best secure a just, expeditious and least expensive determination of matters on their merits and specifically upon section 50(1)(b) of the Federal Court Act, which gives to the Court discretion to stay a proceeding in the interest of justice.
[7] All considered, I accept that there are substantial arguments indicating that a stay would be in the interest of justice and that no real prejudice should arise. Here I note the submissions of the Minister which demonstrate the personal shortcomings of the Applicant, although they are not a real factor in the context of the present motion. Moreover, the Applicant is not only presently incarcerated, but is also subject to a removal order which apparently cannot be utilized until the Applicant is released.
[8] While counsel seem not to disagree to any major extent on the facts, they are not of one mind on the law.
[9] Counsel for the Applicant refers to section 50(1)(b) of the Federal Court Act as having a built-in test, being whether or not a stay would be in the interest of justice. Counsel for the Respondent submits that this stay should be governed by the tripartite test set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. There the Supreme Court set out that an applicant for an extraordinary remedy, being injunctive relief and stays, must establish first, that there is a serious question to be tried; second, that the applicant will suffer irreparable harm if leave is not granted; and third, that the balance of convenience lies in the favour of the applicant: see page 334 where the court refers to the three-stage test as set out in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, which traces to roots back to American Cyanamid Co. v. Ethicon [1975] 1 All E.R. 504, A.C. 96.
[10] Interestingly, the term "stay" may refer to many things including an abeyance of one of two similar actions in the same court, a suspension of an action where a plaintiff fails to follow a court order, a stay of execution, a stay of a frivolous or vexatious proceeding and a stay akin to an injunction or order of prohibition. The Applicant questions whether the same test, that adopted and set out in the RJR-MacDonald case, should apply to a mere stay in the interest of justice, where there are two parallel proceedings.
[11] A beginning for the consideration of this question is in the judgment of Mr Justice Beetz, writing for the court, in the Metropolitan Stores (supra) case. At page 126 he points out that before the Supreme Court of Judicature Act, 1873, there was no distinction between injunctions restraining proceeding and other sorts of injunctions. From this he concludes, at page 127, that "[a] stay of proceedings and an interlocutory injunction are remedies of the same nature.". He goes on to give examples of instances in which the principles for granting interlocutory injunctions have been applied to the granting of interlocutory stays. All of this is in the context of a stay of proceedings pending a constitutional challenge of a legislative provision. The RJR-MacDonald test is also appropriate in considering the stay of proceedings before some other tribunal, or an order of the court, pending an appeal. Yet this Court has also applied a two-part balance of inconvenience test in other instances, including where the stay is of the court's own proceeding.
[12] I considered the two different tests at length in Canadian Pacific Railway Co. v. Sheena M (2000), 188 F.T.R. 16 (F.C.T.D.) and particularly at page 25 and following. There I referred to two lines of cases, one represented by Mon-Oil Ltd. v. Canada (1989), 27 F.T.R. 50 (F.C.T.D.) and continuing through to cases such as AIC Ltd. v. Infinity Investments Counsel Ltd. (1998), 161 F.T.R. 199 (F.C.T.D.), a decision of the Associate Chief Justice Richard, as he then was, and Canning (John E.) Ltd. v. Tripap Inc. (1999), 167 F.T.R. 93 (F.C.T.D.).
[13] The test as enunciated by Mr Justice Cullen in Mon-Oil goes back at least to Fruit of the Loom Inc. v. Chateau Lingerie Manufacturing Co. Ltd. (1984), 79 C.P.R. (2d) 274 at 278 (F.C.T.D.) which is to the effect that an applicant must persuade the court that a continuation of a proceeding would be an abuse of process by which the applicant for the stay would be prejudiced, not merely inconvenienced. See also Dominion Mail Order Products Corp. v. Weider, [1977] 1 F.C. 141 (F.C.T.D.) at 144 and following. As the test evolved in Mon-Oil it was for an applicant for a stay to show both that a continuation of the action would cause prejudice or injustice, not merely inconvenience or extra expense and that a stay would not be unjust to the other side.
[14] In summary, the principle set out in this line of cases, some of which are fairly current cases, but which are based on pre-RJR-MacDonald cases, is that for a stay to be granted a continuation must cause prejudice to the applicant for the stay and that the stay must not be unjust to the party opposing it. The test is, in a sense, a balance of inconvenience test.
[15] In The Sheena M. I pointed out that the earlier test for the stay, the two-part test, involved a general purpose sort of stay, balancing any injustices against each party, with the more recent three-part RJR-MacDonald test being more appropriate to stay the proceedings of a tribunal or to stay the effect of legislation. In a sense, in The Sheena M., I did not have to decide which test to apply, the two-part test or the three-part test, for under either test a stay would have been appropriate. In The Sheena M., while I discussed the stay in the sense of the Mon-Oil test, I also looked at the seriousness of the issue and the prejudice, which in that instance I was able to equate with irreparable harm of shutting down a going concern one-man tow boat operation and then balance the conveniences or inconveniences.
[16] Here I should also mention two cases of which I am aware involving a duplication of proceedings, both sets of proceedings being in this Court. In Powderface v. Baptiste (1996), 118 F.T.R. 118, at 122 Mr Justice Heald decided that it was in the interest of justice to stay one or two actions and went on to note that the tripartite test from RJR-MacDonald had been satisfied for the two actions raised serious issues to be tried, that there would be irreparable harm to one party or the other in two actions going forward simultaneously, with the possibility of contradictory judgments and that the balance of convenience, that of avoiding conflicting judgments and duplication of court effort, satisfied the third element of the tripartite test, that of the balance of convenience.
[17] Similarly, in Poitras v. Sawridge Band, an unreported decision of 17 March 1999, in action T-2655-89, Mr Justice Hugessen dealt with a motion for a stay in which he applied the RJR-MacDonald three-part test to a situation where there were two Federal Court actions in which there were some common issues. At the conclusion he stayed certain of the issues in one of the actions. In reaching his decision to stay various of the issues he applied what he observed to be the "classic test ... the three part test recently laid down by the Supreme Court of Canada in the case of RJR MacDonald v. Canada (A.G.)", a test which he points out has been applied many times both before and since the RJR-MacDonald case was decided. His analysis in the Poitras case was first that there was a serious issue to be tried, second, that there was irreparable harm not only by reason of possible conflicting final judgments, but also irreparable harm arising out of the very fact of long, expensive and complex constitutional litigation on an identical question with the same party in two different actions:
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[5] Second, as to the matter of irreparable harm, I am satisfied that the Crown is exposed to irreparable harm, not only by the substantial possibility of there being conflicting final judgments in the two actionsbut also by the very fact of being obliged to engage in long, expensive and complex constitutional litigation on an identical question with the same party in two different actions. Duplicity in itself causes a serious harm.
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In this passage Mr Justice Hugessen equates duplicity of actions with serious harm. He then went on to look at the third branch of the test, that of balance of convenience.
[18] Finally, I should refer to an analogous situation, that of a conflict between a Federal Court action and a jurisdiction clause, in a bill of lading, referring to jurisdiction in the Court of Antwerp, the subject of Pompey (Z.I.) Industrie v. Ecu-Line N.V. (2001), 268 N.R. 364 (F.C.A.). In Ecu-Line there was an existing Federal Court action, but no action in Antwerp. Mr Justice Appeal Isaac observed that the test in Metropolitan Stores, together with that in American Cyanamid Co. v. Ethicon [1975] 1 All E.R. 504, A.C. 96, which had evolved into the RJR-MacDonald test, was the correct one to apply.
[19] While the Federal Court, has from time to time and even fairly currently applied different standards to a stay, involving parallel proceedings, even parallel proceedings in the Federal Court itself, I believe the case law now requires the application of the three part RJR-MacDonald test when at issue are two parallel actions. However, the two lines of cases may be rationalized.
[20] In rationalizing the two lines of cases, the Mon-Oil balance of inconvenience line and the RJR-MacDonald tripartite test line, I rely on the plain wording of section 51(1)(b) of the Federal Court Act and the approach taken by the Federal Court of Appeal in Ecu-Line (supra). Section 51(1)(b) sets an objective that a stay be in the interest of justice. In the Ecu-Line situation the court pointed to a series of interests and objectives which were authoritatively set out in The Eleftheria [1969] 1 Lloyd's Rep. 237 by Mr Justice Brandon. The Court of Appeal in Ecu-Line accepted the Eleftheria elements as factors to look into and to be weighed in the framework of the tripartite RJR-MacDonald test. Similarly, with section 51(1)(b) of the Federal Court Act, one must now look to elements to produce a just result as weighed and measured within the framework of the tripartite test of the RJR-MacDonald. This is an approach which not only does no violence to section 51(1)(b) of the Federal Court Act, or to either of the two lines of cases, but also is a workable approach. Indeed, on the approach taken by the judges in Powderface, in Poitras and in Ecu-Line, the test is really no more onerous than the earlier two-part test, so long as one accepts the reasonable concept that parallel or conflicting actions have the potential to expose a party to irreparable harm. I now turn to the application of the RJR-MacDonald test to the motion in this action.
[21] In the present instance I am satisfied that the issue involved in both actions are serious issues.
[22] Turning to irreparable harm, the Respondent submits that to proceed with both actions the Applicant need only submit an application record and that if relief in the 2003 action should become moot, it need only be discontinued. This ignores the fact that in judicial review there is an ongoing strict time line for various steps. Against the Respondent's view are the concepts espoused by Mr Justice Heald, in Powderface and by Mr Justice Hugessen, in Poitras, that dealing with two actions simultaneously, with the possibility of different outcomes and with duplicity in itself causing a serious harm, the present Applicant, not by his own choice, but through timetables imposed by the Immigration and Refugee Protection Act and by the Federal Court Act, is exposed to irreparable harm.
[23] Finally, to stay the 2003 proceeding would be, at the very least, a decided convenience to the Applicant and no great inconvenience to the Respondent. Thus the balance of convenience lies in favour of a stay.
[24] The 2003 action, IMM-1241-03, is stayed pending the outcome of the 2002 action, IMM-5652-02. Each side will bear its own costs.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
10 April 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: IMM-1241-03
STYLE OF CAUSE: Letwled Kasahun Tessma (Ayele) v. The Minister of Citizenship and Immigration
REASONS FOR ORDER OF: Hargrave P.
DATED: 10 April 2003
WRITTEN REPRESENTATIONS BY:
Charles B Davison FOR APPLICANT
Tracy J King FOR RESPONDENT
SOLICITORS ON THE RECORD:
Charles B Davison FOR APPLICANT
Barrister and Solicitor
Edmonton, Alberta
Morris A Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta
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