Docket: IMM-6009-13
Citation: 2014 FC 41
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, January 15,
2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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DELORES SPRING
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
The Crown is appealing the decision of
Prothonotary Morneau of December 11, who accepted the production of a
supplementary affidavit in an application for judicial review of a decision of
a law enforcement officer refusing an administrative stay of a removal order.
[2]
This stems from an application for a so-called [translation] "administrative"
stay of a removal order that was to take place on September 22, under the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act). The state of the
applicant's health and the best interests of the child were raised. The removal
is to St-Vincent and the Grenadines.
[3]
The application for a stay was dismissed on
September 10. A new application was presented on September 17. This
application added the fear of violence in support of the requested stay. The
administrative stay was no further granted on September 19.
[4]
The story is complicated because of the fact
that the respondent had approached this Court on September 13 to obtain
the judicial review of the first rejection of the administrative stay on
September 10. The judicial stay was to be heard on September 20. The
respondent appropriately warned this Court's judge of the second rejection of
the administrative stay on September 18.
[5]
Satisfied that the test in this matter was met,
that there was a serious question regarding the administrative refusal, that
the balance of convenience was in favour of the respondent and that the
respondent would suffer irreparable harm (RJR-Macdonald Inc v Canada (Attorney
General), [1994] 1 SCR 311), a judge of this Court granted the
judicial stay.
[6]
The judge also ordered [translation] "that the applicant must introduce a
motion to amend her application for leave so that she may refer to the decision
made on September 18, 2013, rather than the decision made on
September 10, 2013", which was done. On October 28, the judge
allowed the motion and granted two days to file the application for leave and
for judicial review of the rejection of the administrative stay of September
13, 2013. His order was amended on October 30 to correct a minor error.
[7]
Under the Federal Courts Rules,
SOR/98-106, the applicant's record had to be completed on November 29. However,
on November 26, the applicant brought a motion to allow the filing of new
evidence. The new evidence consisted in a letter from a doctor; clearly, this
new evidence regarding the applicant's medical situation was subsequent to the
decision for which the judicial review is requested. The applicant also sought
a suspension of deadlines to complete the record until the decision on her
motion for leave of new evidence.
[8]
The respondent opposed the motion, claiming that
it was frivolous, vexatious and dilatory. To the great frustration of the
respondent, the Prothonotary allowed the motion. The affidavit presenting the
doctor's note and the motion had to be filed at the latest on December 18.
As to the deadlines for subsequent events, it was ordered that they would [translation] "commence on
December 12, 2013".
[9]
This is the Prothonotary's decision that the
respondent is appealing under section 51. It complains that new evidence is
allowed and that the new facts are presented by letter instead of by affidavit,
relying on paragraph 10(2)(d) of the Federal Court Immigration
and Refugee Protection Rules, SOR/93-22.
[10]
This matter may be disposed of by deciding the
issue of new evidence. The issue before this Court is to determine whether the
Prothonotary was right to allow evidence subsequent to the decision of which
the applicant is seeking judicial review. The test to be applied is well
established. Canada v Aqua-Gem Investments Ltd., [1993] 2 FC 425, reads
as follows:
94 I also agree
with the Chief Justice in part as to the standard of review to be applied by a
motions judge to a discretionary decision [page463] of a prothonotary. Following
in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at
page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R.
(2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be
disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of
discretion by the prothonotary was based upon a wrong principle or upon a
misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
(see also Slansky
v Canada (Attorney General), 2013 FCA 199).
[11]
As to the issue of using affidavits, I have nothing
to add to the Prothonotary's decision; it allows for the filing of an affidavit
with an exhibit. If the new evidence is otherwise admissible, it has not been
demonstrated that the decision was clearly incorrect, based upon a wrong
principle and certainly does not relate to a question that is vital to the
determination of this matter, the test in question.
[12]
As regards the admission into evidence of a
letter from a doctor prepared over two months after the decision for which the
application for judicial review is being made, the Prothonotary's decision was
made in a cursory manner. The applicant argues essentially that this evidence
is necessary because of the progressive nature of this medical situation. It is
not clear how the applicant claims to be able to use this letter and how it
relates to the progression of the medical situation. At the hearing, the
question was asked directly and counsel was not able to justify this claim. Further,
the applicant made statements that were not always consistent.
[13]
The applicant first stated that she [translation] "never alleged that
she was unable to travel" (para 40 of the applicant's record). She then
responded to the respondent's argument claiming that the new evidence adds a
new element that was not present in the decision of September 18. But in the
same paragraph, the applicant stated the opposite. What is more, in
subsection 41, the applicant said succinctly that [translation] "the inability to travel is at the heart
of this application and it is therefore not a new argument, but a result of the
applicant's medical condition".
[14]
The applicant said at paragraph 25 of her
memorandum that she [translation] “alleged
that the failure to produce the progression of her medical condition could
result in a jurisdictional error relating to a decision on the administrative
stay of the applicant's removal on the basis of her past, present or future
medical condition, which is at the heart of this case". However, the
letter that the applicant wanted to file does not deal with the progression of
the illness. Besides this sentence being difficult to understand and without
any authority to support it, the applicant states at paragraph 34, that she
does not want to [translation]
"ask the Court to weigh new evidence, but rather to conduct the judicial
review of the removal decision while informing this honourable Court of the
applicant's medical condition".
[15]
This confusion is unfortunate and it was not
resolved in the hearing. It seems to be based on a flawed understanding of what
a judicial review consists of.
[16]
The applicant seems to want this Court to
evaluate the applicant's medical situation. However, the judicial review is of
the decision to refuse a stay on September 18. This decision, by definition, is
only concerned with the evidence on which the decision to refuse the stay was based.
Therefore, different and new evidence may not be useful to the assessment of a
judicial review of an administrative decision except when the assessment
relates to procedural fairness. For example, if an allegation of fraud had been
made, evidence by affidavit would be allowed to establish it.
[17]
Judicial review is not a remedy that allows a
superior court to follow the progress of a file. Exactly the opposite is at
issue. The Court reviewed the decision as rendered based on the evidence before
the decision-maker at that time. It then applied the appropriate standard of
review, which is more often than not the standard of reasonableness (Alberta
v Alberta Teachers’ Association), 2011 SCC 61; [2011] 3 S.C.R. 654, and McLean
v British Colombia (Securities Commission), 2013 SCC 67, on
questions of law; Dunsmuir v New Brunswick, 2008 SCC 9; [2008] 1 SCR
190, on questions of fact where legal and factual issues cannot be easily
separated).
[18]
It seems difficult to imagine how a superior
court could review the legality of a decision based on a standard of review
while taking into account new facts that were not before the decision-maker;
this transforms the judicial review into a de novo review.
[19]
The applicant was never able to clearly say how,
during judicial review, evidence subsequent to the decision that is the subject
of review could have some relevance to the subject of the matter, which is the
review of a decision.
[20]
If there are instances where new evidence could
be accepted and they are as I noted earlier, the applicant did not demonstrate
it in this case (see, among others Judicial Review of Administrative Actions
in Canada, Brown and Evans, loose-leaf, chapter 6 and, in particular, numbers
6: 5300 et seq, with the abundance of case law cited). This is a simple case
where the law enforcement officer exercised his otherwise very narrow discretion
(section 48 of the Act) by dismissing an application for a stay of removal on
the basis of the evidence presented at that time. Because the applicant met the
tripartite test described in paragraph 5 of these reasons, the refusal to
grant her the stay was suspended so that the judicial review of the refusal of
the administrative stay could be heard. That is where we are. It only remains
to review the legality of the refusal of the administrative stay of September 18,
2013, and not to seek whether the applicant might receive an administrative
stay if the facts were different. This Court does not have the jurisdiction to decide
whether an administrative stay should be granted. The Act confers this discretion
on someone else, i.e. on the Minister, the respondent. This Court can only
review the legality of the decision.
[21]
I have read the letter that the applicant would
like to file into evidence on judicial review. In my view, as I noted, the letter
does not deal with the progression of the applicant’s illness but is rather a
description of its severity. The letter concludes “… I believe that deportation
poses a serious danger to both her short and long term health”. The letter does
not provide any explanation for this conclusion.
[22]
The rather succinct decision of the Prothonotary
seems to have been influenced by the written submissions of the applicant. I
have read them. I did not detect in them the reasons allowing to override the principle
that judicial review does not give rise to receiving new evidence. The very
nature of the action simply does not allow for it. Indeed, the Prothonotary referred
in particular to certain paragraphs of the submissions made by the applicant. Further,
the letter was being discussed as describing the progression of the illness. That
is not the case. In my view, there are two possibilities. Either the applicant seeks
to add evidence and, thus, is breaching a fundamental rule, or she seeks to
reach another goal and therefore the relevance of this evidence must be established,
which was not done.
[23]
In my view, it is a clear case of an ex post
facto addition to the record. This passage from Canwood International
Inc v Bork, 2012 BCSC 578, shows very well the attempt made by the
applicant and why it must be rejected:
13 The principle
of so-called "granularity" is not a recognised basis to add to a
record even if the additional material does only amplify, inform, clarify or
explain the evidence before a tribunal. The record is the record. Additional
material changes the record. Admitting additional material compromises the
process of judicial review. To admit additional material in this case would be to
prevent a proper judicial review of the decisions of the Tribunal. That review
should be a review of the decisions of the Tribunal based on the evidence
before it.
[24]
Finally, I add that the probative value of this letter,
when read closely, is very weak and I doubt that it would have had any impact
whatsoever. The applicant argued at the hearing that she wanted to use this
letter to show that this doctor follows this patient, which presumably would
increase her credibility. Medical opinions are part of the judicial review
record and they speak for themselves. Thus, we can
understand why the Prothonotary would have left it in the record since its
relative weight is weak. Further, the principle is clear and it deserves to be
respected. It is for that sole reason that the appeal is allowed.
[25]
The result is that the appeal must be granted. The
letter of November 26, 2013, will not be put on record. The usual deadline to
complete the record before this Court (service and filing of the applicant’s
record) will commence on January 15, 2014.
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