Date: 20020108
Docket: IMM-4810-99
Neutral citation: 2002 FCT 15
BETWEEN:
JOSE ROBERTO HERNANDEZ GUZMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] On October 9, 2000, I issued the following Reasons for Order:
1. This judicial review application seeks to set aside a decision of the Minister's delegate, W.A. Sheppitt who, on April 27, 1997 issued an opinion that the Applicant constitutes a danger to the public in Canada. Mr. Sheppitt's opinion was communicated to the applicant on September 16, 1998.
2. The present application is the second application brought by the Applicant to set aside Mr. Sheppitt's decision. The first application was filed on November 13, 1998 but on February 8, 1999 McGillis J. dismissed it by reason of the applicant's failure to file his Record. The Applicant then filed a motion to, inter alia, set aside McGillis J.'s order. The motion was argued before Teitelbaum J. on August 16, 1999 who, on September 3, 1999 dismissed the motion and certified three questions. On September 15, 1999 the Applicant filed a notice of appeal. I understand that the appeal will probably be heard in February 2001.
3. The present application for judicial review was filed on September 29, 1999. On August 8, 2000 Lemieux J. gave leave to the Applicant and ordered that the application be heard in Calgary on October 19, 2000.
4. The first and second applications are identical. They both seek to set aside Mr. Sheppitt's opinion, dated April 27, 1997, that the Applicant constitutes a danger to the public in Canada.
5. The Court should not and will not allow two identical proceedings to be pursued. This, in my view, is an abuse of process. If the Court of Appeal allows the Applicant's appeal, the Applicant will be able to pursue the proceedings dismissed by McGillis J. If the appeal is denied, the first proceedings will be at an end. McGillis J.'s order will stand.
6. Whether, as a result of his appeal, the Applicant can pursue his second application is an issue I need not address.
7. The Applicant seems to be of the view that by reason of Lemieux J.'s order dated August 8, 2000, the orders of McGillis J. and Teitelbaum J. are of no legal effect. I am not convinced of the correctness of this position. However, as I have just indicated, I need not address this issue at the present time.
8. For these reasons, the hearing of this application is adjourned sine die. I will, however, remain seized of this matter until otherwise ordered.
[2] As appears from my October 9, 2000 Reasons, I adjourned the hearing of the applicant's judicial review application pending the determination of his appeal in Court file A-575-99. On March 13, 2001, the applicant filed a Notice of Discontinuance of his appeal. The respondent seeks an Order dismissing the judicial review application on the grounds of abuse of process and/or res judicata.
[3] The judicial review application now before me is identical to the one which McGillis J. dismissed on February 8, 1999. That is the decision which Teitelbaum J., by his Order of September 3, 1999, refused to set aside.
[4] I start with the proposition that Mr. Justice Lemieux ought not to have granted leave to the applicant to commence a second judicial review application. That proposition is, in my view, clearly supported by the authorities, and in particular, by the judgment of the Federal Court of Appeal in Metodieva v. Canada (1998), 132 N.R. 38. In Metodieva, the applicant, whose first application for leave to commence judicial review proceedings in respect of a decision of the Refugee Board was dismissed by Hugessen J.A. on December 18, 1990[1], filed a second application for leave on May 15, 1991, in regard to the same decision. Décary J.A., who wrote the Reasons for the Court of Appeal, referred, at page 43, to a passage from the decision of Jackett C.J. in Lamptey-Drake v. M.E.I., [1980] 1 F.C. 64, where the Chief Justice stated, at page 67, that:
[...] Once having considered and dismissed an application for leave to appeal, the court has, in my view, no jurisdiction to hear another application for leave to appeal in the same matter.
[5] After quoting from Lamptey-Drake, supra, Décary J.A. went on to state the following, at page 43:
[6] [...] The applicant is seeking to obtain indirectly with respect to the order of December 18, 1990, what she could not obtain directly through the procedure prescribed by the Rules. I certainly could not acquiesce in such a development, which is completely contrary to the rule of res judicata and the stability of the judicial process.
[6] That passage must be read in conjunction with Décary J.A.'s words at page 40, where he stated:
[4] The choice of avenues open to a dissatisfied party is exceedingly limited. There is, as a general rule, an appeal to the Supreme Court of Canada (s. 31 of the Federal Court Act), but in immigration matters, no appeal lies to the Supreme Court of Canada from a judgment of a Federal Court of appeal judge on an application for leave to commence an application under s. 28 of the Federal Court Act or on an application for leave to appeal in respect of a decision of the Refugee Division (ss. 82.2(2) and 84.1 of the Immigration Act). The proceedings defined by the Rules of Court are also available. If I am not mistaken, these proceedings are an application to rehear a motion dismissed in the absence of a party (rule 329), an application to rescind an order made ex parte or in the absence of a party who failed to appear through accident or mistake or by reason of insufficient notice of the application (rule 330), an application "to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others: (a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor; (b) that some matter that should have been dealt with has been overlooked or accidentally omitted" (rule 337(5)), an application for a rehearing (rule 1103(3)) or an application "setting aside judgments for new matter or fraud" (rule 1733). Apart from these cases, this court or one of its judges simply does not have the jurisdiction to reconsider a final order.
[7] Lastly, at page 43 of his Reasons, Décary J.A. makes it clear that the Court did not have jurisdiction to hear the second leave application:
[7] I think it is important to point out that the court does not have jurisdiction to decide the matter again, and that this is so whatever the reason for dismissing the first application for leave. In the case at bar, the order of December 18, 1990, read as follows: "The application, being unsupported by affidavit or other material, is dismissed" [...]
[8] Consequently, it seems to me, with respect, that it cannot be seriously disputed that the applicant's second leave application ought to have been dismissed. However, my colleague Lemieux J. granted the applicant leave to commence a second application. The issue before me was raised indirectly by the respondent in her Memorandum of Argument, in answer to the applicant's leave application. At paragraph 18 of the Memorandum, the respondent makes the following submission:
18. The Applicant has an appeal pending before the Court of Appeal with respect to the first application for leave and for judicial review he filed challenging the Minister's danger opinion. If that appeal is successful, he will be permitted to continue with his first application. It is submitted that it is an abuse of process to pursue two applications for leave simultaneously in respect of the same decision. This application should therefore be dismissed.
[9] It does not appear that the respondent brought to the attention of Lemieux J. the Court of Appeal's decision in Metodieva, supra. In fact, it does not appear that the respondent brought any relevant case to the attention of Lemieux J. at the time of the leave application.
[10] However, the fact of the matter is that Lemieux J. granted the applicant leave to commence a second judicial review application. Is it now open to me to disregard his decision and dismiss the judicial review application on grounds of abuse process and/or res judicata? In my view, it is not. Firstly, the point raised by the respondent in paragraph 18 of her Memorandum is now moot, since the appeal has been abandoned. Secondly, concerning the res judicata issue, there was res judicata, in my view, with respect to whether the applicant ought to have been allowed to commence a second judicial review application. Although it is clear, in my view, that leave ought not to have been granted, leave was granted. Since no appeal can be taken from a decision granting or refusing leave, Lemieux J.'s decision is final.
[11] I am supported in this view by the decision of the Federal Court of Appeal in Canada (Solicitor General) v. Bubla, [1995] 2 F.C. 680. At first instance, Gibson J. was faced with what he characterized as a procedural issue, i.e. whether he was properly seized of the matter before him. In Bubla, the applicant filed an application for leave and for judicial review on March 9, 1993, in respect of a decision rendered by the Appeal Division of the Immigration and Refugee Board on February 2, 1993. As a result, the leave application was not filed within the 15 days prescribed by subsection 82.1(3) of the Immigration Act. A judge of the Trial Division granted the applicant's application for leave. However, in granting the leave application, the learned judge did not indicate that he was extending time for the filing of the leave application.
[12] The respondent argued that Gibson J. could not hear the application for judicial review on the merits, on the ground that the judge who granted leave to commence the application had not extended time, nor found "special reasons" for such an extension, as required under subsection 82.1(5) of the Immigration Act, which provides:
82.1(5) A judge of the Federal Court - Trial Division may, for special reasons, allow an extended time for filing and serving an application under this section for leave to commence an application for judicial review.
[13] At paragraph 12 of his Reasons, Gibson J. dealt with the issue in the following terms:
[12] [...] The judge who granted the application for leave could not have granted the application unless he found special reasons, since, in my view at least, it was clearly late-filed. He did grant the application for leave. I therefore conclude that he found special reasons. As counsel for the Respondent said before me, it is unfortunate that in this particular circumstance we do not have his special reasons. But the action that he took in granting leave only makes sense if he found special reasons. As indicated above, I conclude that he found special reasons. Therefore, I conclude that this matter is properly before me.
[14] In deciding the issue against the respondent, Gibson J. agreed to certify the following question:
Can a judge of the Federal Court - Trial Division find "special reasons" within the meaning of subsection 82.1(5) of the Immigration Act in the absence of a motion for leave to file late an application for judicial review in support of which special reasons are alleged?
[15] The Federal Court of Appeal concluded that the above question ought not to have been certified. At page 692 (paragraph 16), Strayer J.A. made the following remarks:
This question should not have been certified and cannot be answered. Although the learned Trial Judge at the judicial review hearing was obviously invited by counsel, at some length, to decide whether MacKay J. had properly granted leave to seek this judicial review, in my respectful view he should have refused to deal with that matter. There is no inherent power in one judge to review the merits of a decision of another judge of coordinate jurisdiction. Nor is the decision of a superior court judge open to review in collateral proceedings. While it may be open to the judge who disposes of an application for leave to reconsider the matter himself in certain limited circumstances, it is not open to another judge to sit on appeal from that decision. The hearing of an application for judicial review is not an occasion for hearing an appeal from the decision to grant leave to seek that judicial review. Therefore the learned Trial Judge should have declined to deal with the attack by Bubla's counsel on the validity of the order of MacKay J. granting leave.
[16] Strayer J.A. states in unequivocal terms that a judge of the Trial Division cannot review a decision made by another judge of the Trial Division. Strayer J.A. also states in clear and unambiguous terms that the hearing of an application for judicial review cannot serve as a disguised appeal from the decision granting leave to commence that judicial review application. I conclude from the Court of Appeal's decision in Bubla, supra, that I cannot review or set aside, directly or indirectly, the decision made by Lemieux J. to grant leave to the applicant to commence this judicial review application.
[17] Consequently, the respondent's motion for an Order dismissing the applicant's application for judicial review must be dismissed. Since I am properly seized of this matter, I invite counsel to contact me within 30 days with respect to the fixing of a date for the hearing of this matter.
Marc Nadon
JUDGE
O T T A W A, Ontario
January 8, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4810-99
STYLE OF CAUSE: JOSE ROBERTO HERNANDEZ GUZMAN
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: NOVEMBER 08, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NADON
DATED: JANUARY 08, 2002
APPEARANCES:
MR. WILLIAM WEISWASSER & FOR THE APPLICANT
MR. G. MICHAEL SHERRITT
MS. LORRAINE NEILL & FOR THE RESPONDENT
MS. KERRY FRANKLIN
SOLICITORS OF RECORD:
MR. WILLIAM WEISWASSER FOR THE APPLICANT
CALGARY, ALBERTA
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
[1] Hugessen J.A. dismissed the leave application in the following terms: "The application, being unsupported by affidavit or other material, is dismissed."
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