Date: 20070921
Docket: T-836-07
Citation: 2007 FC 949
BETWEEN:
LAWRENCE WONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
I. Introduction
[1]
These
reasons follow the hearing of an appeal under Rule 51 of the Federal Courst
Rules (the "Rules") of an
order of Prothonotary Roger R. Lafrenière, dated August 8, 2007, by which
Prothonotary Lafrenière dismissed the application for judicial review brought
by the Applicant.
[2]
Prothonotary
Lafrenière's order, which incorporates his brief reasons, is attached as an
annex to these reasons.
II. The Application for Judicial
Review
[3]
The
Applicant sought certiorari and mandamus in respect of a decision
of:
"The registrar of Immigration and
Refugee Board of Canada (the "Tribunal") continuing refusal to
grant the Applicant access to view certain Immigration Appeal Division and
Immigration Division files which form part of the public record of the
Tribunal. The Immigration and Refugee Board of Canada is a "Federal
Tribunal" within the meaning of that phrase in s.2 of the Federal Court
Act. The Respondent Minister is the Minister responsible for the
Tribunal."
[reproduced as in the
original]
The Application recites that it is brought
under section 18.1 of the Federal Courts Act.
III. The Issues
[4]
In
his written representations before the Court, the Applicant, who is a lawyer
practising in Vancouver, British Columbia, and who represented himself before
the Court, and in his oral submissions, raised two issues on his appeal: first,
whether Prothonotary Lafrenière had jurisdiction to dismiss his application for
judicial review; and secondly, whether Prothonotary Lafrenière's decision was
wrong in law because it was not supported by the evidence before him.
[5]
At
the opening of the hearing, the Court raised with counsel the issue of the
standard of review on an appeal such as this. Although neither counsel raised
the issue of standard of review in their written materials at hearing, there
was no dispute between them as to the appropriate standard.
IV. Analysis
A. Standard of Review and
Jurisdiction of Prothonotary Lafrenière
[6]
The
jurisdiction of this Court to strike a proceeding before it, including an
application for judicial review, is succinctly summarized in the first
paragraph of Prothonotary Lafrenière's order following the recitals to that
order. Prothonotary Lafrenière determined that it was "plain and
obvious" that the underlying application for judicial review is without
merit, because it was improperly constituted and that, as an improperly
constituted proceeding, it was appropriate that it should be struck before
proceeding to consideration of the application on the merits.
[7]
The
jurisdiction of a prothonotary in relation to motions such as the motion to
strike that was before Prothonotary Lafrenière is elaborated in Rule 50(1) of
the Rules and, more particularly for the purposes of this matter, might be
restricted only in the manner described in paragraph 50(1)(a) of the Rules. For
ease of reference, the opening words of Rule 50(1) and paragraph (a) of that
Rule read as follows:
|
50. (1) A prothonotary may hear, and make any necessary
orders relating to, any motion under these Rules other than a motion
(a) in respect of which these Rules or an Act of
Parliament has expressly conferred jurisdiction on a judge;
|
50. (1) Le protonotaire peut entendre toute requête présentée
en vertu des présentes règles — à l’exception des requêtes suivantes — et
rendre les ordonnances nécessaires s’y rapportant :
a) une
requête pour laquelle un juge a compétence expresse en vertu des présentes règles
ou d’une loi fédérale;
|
[8]
Neither
counsel referred the Court to any provision of the Rules or of an Act of
Parliament that expressly conferred jurisdiction on a judge or judges only on
an application for judicial review, such as the one here at issue, brought
under s. 18.1 of the Federal Courts Act.
[9]
I
am satisfied that the Court and, in particular, Prothonotary Lafrenière acting as
the Court, had jurisdiction to consider and to dispose of the motion that was here
before him.
[10]
I
will consider the subject matter of this appeal de novo as I am
satisfied I must since Prothonotary Lafrenière's decision is clearly vital to
the final issue of the case.
B. Error
of Law
[11]
Prothonotary
Lafrenière determined that the underlying application for judicial review
should have been brought under ss. 72(1) of the Immigration and Refugee
Protection Act ("IRPA") rather than s. 18.1 of the Federal
Courts Act since it constituted a judicial review by this Court with
respect to a "matter under" IRPA. In the result, he determined
that it should have been commenced by making an application for leave to the
Court, and that as the application for judicial review at issue was not brought
under IRPA and leave was therefore not sought, it was procedurally
defective and therefore inevitably bound to fail regardless of its substantive
merits.
[12]
For
ease of reference, ss. 72(1) of IRPA reads as follows:
|
72. (1) Judicial review by the Federal Court with
respect to any matter — a decision, determination or order made, a measure
taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
|
72. (1) Le contrôle judiciaire par la Cour
fédérale de toute mesure — décision, ordonnance, question ou affaire — prise
dans le cadre de la présente loi est subordonné au dépôt d’une demande
d’autorisation.
|
[13]
Counsel
for the Applicant urged that the substance of the application for judicial
review was not a "matter under" IRPA since it was not a
decision, determination or order made, or a measure taken or a question raised
under that Act. I reject that argument. Whether or not the subject matter of
the underlying application for judicial review is a decision, determination or
order made, or measure taken or a question raised under IRPA, is, I am
satisfied, not determinative. I find those words to be illustrative of the
words "matter under" rather than definitional. The Registrar of the
IRB, in rejecting the Applicant's request, derives his authority to so decide
from IRPA notwithstanding that his authority may be proscribed by the Access
to Information Act.
[14]
I
am satisfied that the subject matter of the underlying judicial review is a
"matter under" IRPA and not a matter more directly related to
the Access to Information Act or to the "open court" principle
that the Applicant urges is in conflict with and should override the continuing
series of decisions under review.
V. Conclusion
[15]
For
the brief foregoing reasons, exercising my discretion de novo, I reach
the same conclusion as that reached by Prothonotary Lafrenière, for essentially
the same reasons, and therefore, like Prothonotary Lafrenière, I would have
granted the Respondent's motion to strike the underlying application for
judicial review on the sole ground that it is procedurally improperly
constituted and therefore could not possibly succeed.
[16]
In
the last paragraph of his reasons, attached, Prothonotary Lafrenière notes an
argument on behalf of the Respondent regarding adequate alternative remedy. He
notes, "I need not address this issue." He then goes on, very
briefly, to suggest that there might well be an adequate alternative remedy
that would constitute a bar to seeking relief directly from this Court. I agree
with this comment by Prothonotary Lafrenière which is clearly not central to
his decision. I will go no further on the issue of adequate alternative remedy.
[17]
In
the result, I will dismiss this appeal.
VI. Costs
[18]
The
Respondent seeks costs on this appeal and, in the normal course of things,
costs would follow the event, which is to say that the Respondent would be
entitled to costs.
[19]
Counsel
for the Applicant urges that there should be no order as to costs given that
the underlying issue arising on the facts of this matter is an issue of public
interest, that is to say a conflict between the "open court
principle" and the continuing refusal of the Registrar of the Immigration
and Refugee Board to afford to the Applicant access to material in the
possession of the Immigration and Refugee Board.
[20]
This
proceeding, to the point of my order herein, has turned on a procedural matter,
what Prothonotary Lafrenière and this judge have determined to be a procedural
error on the part of the Applicant in the manner in which the underlying
conflict has been brought before the Court.
[21]
In
the circumstances, I find no basis that would justify a variation from the
principle that costs follow the event. In the result, an order will go for
costs in favour of the Respondent, against the Applicant.
"Frederick E.
Gibson"
Vancouver, British Columbia
September 21, 2007
ANNEX
Date: 20070808
Docket: T-836-07
Vancouver, British Columbia, August 8, 2007
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
LAWRENCE WONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
ORDER
UPON MOTION
in writing dated July 24, 2007 on behalf of the Respondent for an order to
dismiss the Applicant’s
Application for Judicial Review;
AND UPON
reading the motion records filed on behalf of the Respondent and the Applicant,
and the Respondent’s written representations in reply;
It is trite law that a
pleading should not be struck and a proceeding should not be dismissed unless
it is “plain and obvious” that it is wholly without merit: Hunt v. Carey
Canada Inc., [1990] 2 S.C.R. 959. Furthermore, while the Court has the
jurisdiction to dismiss an application which is bereft of any possibility of
success, a respondent should, as a general rule, argue the point at the hearing
of the application itself, rather than bring an interlocutory motion to strike:
David Bull Laboratories (Canada Inc.) v. Pharmacia, [1995] 1 F.C. 588
(FCA). It remains that improperly constituted proceedings, particularly ones
beyond this Court’s jurisdiction, should be discouraged.
The Applicant is challenging
a decision by the Registrar of the Immigration and Refugee Board (IRB) refusing
to grant the Applicant access to certain Immigration Appeal Division and
Immigration Division files. He seeks an order setting aside the decision and
compelling the Respondent to grant access to all non-refugee files to the
Applicant. The Respondent submits that this Court is without jurisdiction to
entertain the application since the Applicant has not applied for leave to seek
judicial review in accordance with section 72 of the Immigration and Refugee
Protection Act (IRPA).
Subsection 72(1) of IRPA
states that an application for leave must be sought to challenge any matter,
defined broadly as “a decision, determination or order made, a measure taken or
a question raised” under IRPA. Both jurisprudence and logic dictate that this
Court has no jurisdiction to deal with the application absent leave to seek
judicial review being first sought and then granted. Adopting the terminology
used by Justice Mahoney of the Federal Court of Appeal in Mahabir v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 133, I conclude
that the remedy sought by the Applicant is “certainly about” IRPA since it
relates to certain procedures of the IRB which derives its authority to make
decisions or orders from that Act. It is simply not open to the Applicant to
circumvent the leave requirement.
The Respondent also argues
that, even if the Federal Court has the jurisdiction to consider the
Applicant’s application for judicial review, it should decline to do so because
the Applicant has an adequate alternative remedy for obtaining access to the
information he is seeking by way of an application pursuant to the Access to
Information Act (ATIA). Given my conclusion that this proceeding was not
properly constituted, I need not address this issue. It appears, however, the
statutory regime under the ATIA for dealing with access to records in the
control of various federal bodies, including the IRB, constitutes a bar to
seeking relief directly from this Court.
THIS COURT
ORDERS that the application for judicial review is dismissed.
“Roger R. Lafrenière”
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