Narvey v. Mcnamara, docket IMM-1989-95

     IMM-1989-95

BETWEEN:

KENNETH M. NARVEY, on his own behalf and on behalf of himself and all other persons associated with the COALITION OF CONCERNED CONGREGATIONS ON THE LAW RELATING TO WAR CRIMES AND CRIMES AGAINST HUMANITY INCLUDING THOSE OF THE HOLOCAUST ("the Coalition of Concerned Congregations" or "the Coalition"),

     Applicant,

     - and -

J.E. McNAMARA, in his capacity as an Adjudicator pursuant to the Immigration Act; THE MINISTER OF CITIZENSHIP AND IMMIGRATION; THE LEAGUE FOR HUMAN RIGHTS FOR B'NAI BRITH and JOSEF NEMSILA,

     Respondents.

     REASONS FOR ORDER

DUBÉ J:

     This motion by the respondents seeks an order quashing the applicant's application for judicial review on the ground that it is moot.

     As I pointed out at the outset of the hearing, there are no Federal Court Rules providing for the filing of a motion to strike out, or to quash, another motion or an application for judicial review. Rule 419 provides only for the striking out of a pleading in an action. The proper way to contest an originating notice of motion is to appear and argue at the hearing of the motion itself.

     However, the Federal Court of Appeal in David Bull Laboratories v. Pharmacia Inc.¹, held that there is jurisdiction in this Court either inherent, or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion "which is so clearly improper as to be bereft of any possibility of success". Consequently, I feel free to exercise my discretion and to dismiss the application for judicial review in question if it is purely academic and bereft of any possibility of success.

     The application for judicial review in question relates to the determination made by respondent adjudicator J.E. McNamara at an immigration inquiry under the Immigration Act to the effect that he did not have jurisdiction to grant intervenor status to the applicant. The inquiry was in respect of the respondent Josef Nemsila who was alleged to have committed crimes during World War II in Czechoslovakia.

     The respondent Minister of Citizenship and Immigration ("the Minister") was seeking a deportation order of Mr. Nemsila on the ground that he had not been lawfully admitted to Canada. At the inquiry, the applicant sought to intervene in order to address a preliminary legal issue, namely the interpretation of the legislative provisions governing the acquisition of "Canadian domicile" under the pre-1978 Immigration Act.

     The adjudicator found that Mr. Nemsila had acquired Canadian domicile and, therefore, that no removal order could be made against him. His decision was set aside on judicial review by Mr. Justice Jerome ACJ². An appeal of that decision was heard by the Federal Court of Appeal³ and was dismissed as moot because Mr. Nemsila died after the hearing but before the judgment of the Federal Court of Appeal was delivered in the matter.

     In its judgment, the Federal Court of Appeal dealt extensively with the question of mootness. The Court held that since the whole object of the proceedings before the adjudicator was to determine whether the appellant could be deported, his death renders that question academic. Nevertheless, the Court considered whether it ought to exercise its discretion and render judgment. On behalf of the Court, Stone J.A., canvassed inter alia the Supreme Court of Canada decision in Borowski v. Canada (Attorney General)⁴, wherein Sopinka J. considered three criteria to govern the discretion of a Court with reference to a matter which raises an abstract question where no present live controversy exists. First, the requirement of an adversarial context; secondly, a justified concern for judicial economy; and, thirdly, a possible intrusion into the role of the legislative branch when pronouncing judgments in the absence of a dispute.

     As to the first criterion, the need for an adversarial context was not a concern at the time of the Federal Court of Appeal hearing as the person concerned was alive and the issues were argued by the parties. It became a problem before their judgment was pronounced, as Mr. Nemsila died and his solicitors are no longer interested in pursuing the matter.

     Turning to the second criterion, a concern for judicial economy, Stone J.A. said that this concern may be met if special circumstances justify the application of scarce judicial resources to resolve the matter. He said as follows, at p. 12:

While the record suggests that the answers to the questions posed "will be relevant to other cases involving the deportation of persons alleged to have entered Canada after World War II in similar circumstances which are currently pending"5, it is far from clear that the present case is typical of other cases that may be pending or are bound to follow.

     Stone J.A., concluded that the second criterion led him to exercise the discretion against rendering judgment. He said, at p. 13:

A consideration of the second rationale leads me to exercise the discretion against rendering judgment. Firstly, in my view, this is not a case where a decision would have practical side effects on the rights of the parties. The whole purpose of the proceedings under section 27 of the Act was to determine whether the appellant should be deported from Canada as a person described in paragraphs 27(1)(e) and 27(2)(g). The death of the appellant renders that purpose academic. Secondly, I am not persuaded that this is a case of "a recurring nature but brief duration". As indicated above, the evidence is not entirely clear whether the issues which arise in this appeal are likely to recur and that unless the dispute is resolved now it will have disappeared before it is ultimately resolved. Thirdly, I do not consider that the issue of public importance involved in this appeal is, of itself, sufficient to overcome mootness for the reason that there are special circumstances which make it worthwhile to apply scarce judicial resources to resolve it.

     Applying the third criterion, the Court found that the issues in the appeal revolve around a statutory interpretation and that the Federal Court of Appeal was not the ultimate arbiter of the dispute in question. He wrote, at p. 15:

The final rationale of the mootness doctrine is the need for a measure of awareness of a court's proper law-making function. Parliament intended that the responsibility of appellate review should rest with this Court at first instance. The issues in the present appeal, being ones of statutory interpretation, are within this Court's traditional law-making role. This Court, nonetheless, is not the ultimate arbiter of the dispute involved in this appeal. That role belongs to the Supreme Court of Canada. This in itself raises the concerns advanced by the Canadian Jewish Congress against rendering judgment. In cases such as Borowski, supra, and the subsequent case of Tremblay v. Daigle6, no question of a further appeal could arise. By contrast, regardless of whether the present appeal was disposed of for or against the position of the appellant, the death of that party means that counsel could not be instructed on seeking or opposing a possible application for leave to appeal to the Supreme Court of Canada or in arguing the merits of an appeal before that Court. Neither is there here the presence of an intervenor who could supply the required adversarial context at that stage.

     It is true that the issues before the Federal Court of Appeal are not the same which would be addressed by this Court under judicial review. While the central issue before the Federal Court of Appeal was one of domicile and deportation, the issue for judicial review would be the jurisdiction of an adjudicator to grant intervenor status. Nevertheless, the issues relate to the matter of mootness caused by the same factor, namely the death of Mr. Nemsila, and the legal foundation for the original proceeding no longer exists.

     Although the lis in the instant application is between the applicant and the respondents, two of whom are alive, the lis arose only as a result of the underlying proceeding between the Minister and Mr. Nemsila. The adversarial relationship between the Minister and Mr. Nemsila has disappeared and the adversarial relationship between the applicant and the remaining respondents is solely dependent upon, and subordinate to, the earlier existence of the adversarial relationship between the Minister and Mr. Nemsila. With the death of Mr. Nemsila and the judgment of the Federal Court of Appeal, the proceedings existing between those two are moot.

     Moreover, the mere fact that the applicant may be interested in intervening in other deportation inquiries before an adjudicator cannot revive the instant proceedings and is not a justification for this Court to expend its limited resources for the determination of a purely academic issue. Clearly, the proper solution is for the applicant to raise the issue before an adjudicator at the next opportunity in the course of another deportation inquiry.

     Consequently, the respondents' application is granted and the applicant's application for judicial review is dismissed.

     The applicant asked that a serious question of general importance be certified pursuant to subsection 83(1) of the Immigration Act and submitted a question which counsel for the respondents accepted. Consequently, I agree that the following question be certified:

"Where: (i) an organization has applied to an immigration Adjudicator for standing or intervenor status at an immigration inquiry; (ii) the Adjudicator has ruled that there is no such thing as intervention at such an inquiry; (iii) the Federal Court Trial Division has granted leave to commence an application for judicial review of that ruling; (iv) the Minister of Citizenship and Immigration, but not the person who was the subject of the inquiry, has taken the position that the Adjudicator was correct in his ruling; (v) the person who was the subject of the inquiry has died; and (vi) there will likely be numerous other forthcoming immigration inquiries at which the organization in question might wish to seek standing or intervenor status --- then (a) is the application for judicial review moot?; and (b) if it is moot, does it meet the established criteria such that the Trial Division should hear and decide it nevertheless?"

O T T A W A

October 10, 1997

    

     Judge

__________________

¹      [1995] 1 F.C. 588.

²      Canada v. Nemsila, [1977] 1 F.C. 260 (F.C.T.D.).

³      Nemsila v. M.C.I., unreported, Federal Court of Appeal, A-782-96, May 27, 1997, per Stone J.A.

⁴      [1989] 1 S.C.R. 342.

⁵      Affidavit of Michelle Julfs, sworn October 22, 1996.

⁶      [1989] 2 S.C.R. 530.