Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.
on appeal from the court of appeal for ontario
Courts ‑‑ Jurisdiction ‑‑ Procedure ‑‑ Immigration review and Federal Court appellate processes from decision on refugee claim exhausted ‑‑ Constitutional challenge of Immigration Act brought in provincial superior court ‑‑ Motion to stay constitutional challenge granted by motions court judge but overturned on appeal ‑‑ Whether any basis for Court of Appeal's interference with the motions court judge's exercise of discretion -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106 -- Immigration Act, R.S.C., 1985, c. I-2, ss. 43(1), 44(1), 48, 82.1, 82.2, transitional provisions, as am.
Immigration ‑‑ Refugee status ‑‑ Immigration review and Federal Court appellate processes from decision on refugee claim exhausted ‑‑ Constitutional challenge of Immigration Act brought in provincial superior court ‑‑ Motion to stay constitutional challenge granted by motions court judge but overturned on appeal ‑‑ Whether any basis for Court of Appeal's interference with the motions court judge's exercise of discretion.
A two‑member "credible‑basis" tribunal established under the Transitional Provisions of the Immigration Act decided that there was no credible basis for referring the respondent's claim to the Immigration and Refugee Board (Convention Refugee Determination Division), and in consequence a deportation order was issued. The respondent then applied, unsuccessfully, to the Federal Court of Appeal for leave to commence a proceeding to set aside the deportation order. The case was reviewed on humanitarian and compassionate grounds by an Immigration officer and reconsidered at respondent's request a number of times. After the last reconsideration the respondent unsuccessfully sought leave to commence judicial review of the officer's decision in the Federal Court, Trial Division.
The respondent subsequently brought an application in the Ontario Court (General Division) for a declaration that: (a) the credible‑basis hearing was contrary to s. 7 of the Canadian Charter of Rights and Freedoms and that the relevant sections of the Act were inoperative, or in the alternative constitutionally inapplicable to the respondent; (b) ss. 44(1) and 48 of the Transitional Provisions of the Immigration Act which operated to permit a removal order to be issued against the respondent were inoperative and constitutionally inapplicable to the respondent; (c) ss. 82.1 of the Immigration Act (requiring leave to commence judicial review in the Federal Court) and 82.2 (prohibiting an appeal of a refusal to grant leave) violate ss. 7 , 15 and 24(1) of the Charter and violate s. 2(e) of the Canadian Bill of Rights. The respondent also brought a motion for an interlocutory injunction restraining the Minister of Employment and Immigration from deporting him pending the final disposition of the respondent's application for declaratory relief.
The Ontario Court (General Division) granted the appellants' motion to stay the respondent's application for declaratory and injunctive relief. The Ontario Court of Appeal stayed the deportation order pending disposition of the respondent's appeal to that court and later allowed the respondent's appeal and ordered that the stay of respondent's application granted by the Ontario Court (General Division) be set aside. At issue here was whether there was any basis for the Court of Appeal's interference with the motions court judge's exercise of discretion.
Held: The appeal should be allowed.
There was no basis for interfering with the motions court judge's decision to stay the proceedings commenced by the respondent. The Ontario Court (General Division) and the Federal Court had concurrent jurisdiction to hear the respondent's application but, under s. 106 of the Courts of Justice Act, any judge of the General Division had a discretion to stay the proceedings. The motions court judge properly exercised his discretion on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum. This was the correct approach.
It was unnecessary to discuss the issue of the application of res judicata and issue estoppel. Since leave to commence judicial review was required in both the Federal Court of Appeal and the Federal Court, Trial Division and since one of the issues was the constitutional validity of the leave procedure itself, the application of either res judicata or issue estoppel was subject to serious doubt.
Whether the exercise of discretion is patently unreasonable is not the appropriate test for reviewing the exercise of judicial discretion. The appropriate test is whether the judge at first instance has given sufficient weight to all relevant considerations.
Cases Cited
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; Maynard v. Maynard, [1951] S.C.R. 346; Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).
Canadian Charter of Rights and Freedoms , ss. 7 , 12 , 15 , 24(1) .
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106.
Immigration Act, R.S.C., 1985, c. I-2. ss. 43(1) [rep. & sub. R.S.C., 1985, c. 28 (4th Supp.), s. 14], 44(1) [rep. & sub. R.S.C., 1985, c. 28 (4th Supp.), s. 14], 48, 82.1 [ad. R.S.C., 1985, c. 28 (4th Supp.), s. 19, rep. & sub. 1990, c. 8, s. 53], 82.2 [ad. R.S.C., 1985, c. 28 (4th Supp.), s. 19, rep. & sub. 1990, c. 8, s. 54], transitional provisions.
APPEAL from a judgment of the Ontario Court of Appeal (1992), 11 O.R. (3d) 65, 58 O.A.C. 377, 98 D.L.R. (4th) 88, 11 C.R.R. (2d) 213, 9 Admin. L.R. 121, allowing an appeal from a judgment of Ferrier J. granting a stay from constitutional challenge. Appeal allowed.
J. E. Thompson, Q.C., and Donald A. MacIntosh, for the appellants.
Mel Green, Barbara Jackman and Carter Hoppe, for the respondent.
Françoise Saint‑Martin, for the intervener the Attorney General of Quebec.
Jean‑François Goyette, for the intervener the Canadian Council for Refugees.
//The Court//
The following is the judgment delivered by
The Court -- This is an appeal from the decision of the Ontario Court of Appeal setting aside an order made by a motions court judge staying the respondent's application for a declaration that certain provisions of the Immigration Act, R.S.C., 1985, c. I-2, operated to deny his rights under the Canadian Charter of Rights and Freedoms and for consequent injunctive relief. The issue on appeal is whether there was any basis for the Court of Appeal's interference with the motions court judge's exercise of discretion.
I. Facts
The respondent came to Canada from Iran in June 1987 and claimed protection as a Convention refugee on the ground that he feared political persecution. On August 30, 1990 a two-member "credible-basis" tribunal established under the Transitional Provisions of the Immigration Act, R.S.C., 1985, c. 28 (4th Supp.), decided that there was no credible basis for referring his claim to the Immigration and Refugee Board (Convention Refugee Determination Division), and in consequence a deportation order was issued. The respondent then applied to the Federal Court of Appeal for leave to commence a proceeding to set aside the deportation order. On January 7, 1991, the Federal Court of Appeal dismissed his application.
The respondent's case was reviewed on humanitarian and compassionate grounds by an Immigration officer and reconsidered at his request a number of times. After the last reconsideration the respondent sought leave to commence judicial review of the officer's decision in the Federal Court, Trial Division. On January 7, 1992, the Federal Court, Trial Division, refused leave.
The respondent subsequently brought an application in the Ontario Court (General Division) for a declaration that:
(a)the credible-basis hearing under s. 43(1) of the Transitional Provisions and consequent sections of the Immigration Act violated s. 7 of the Charter and that, therefore, the relevant sections were inoperative or in the alternative, constitutionally inapplicable to the respondent;
(b)ss. 44(1) and 48 of the Transitional Provisions of the Immigration Act which operated to permit a removal order to be issued against the respondent were inoperative and constitutionally inapplicable to the respondent;
(c)ss. 82.1 of the Immigration Act (requiring leave to commence judicial review in the Federal Court) and 82.2 (prohibiting an appeal of a refusal to grant leave) violate ss. 7 , 15 and 24(1) of the Charter and violate s. 2(e) of the Canadian Bill of Rights, R.S.C., 1985, Appendix III.
The respondent also brought a motion for an interlocutory injunction under the Courts of Justice Act, R.S.O. 1990, c. C. 43, restraining the Minister of Employment and Immigration from removing him from Canada pending the final disposition of the respondent's application for declaratory relief. He claimed that his removal to Iran would violate ss. 7 and 12 of the Charter .
The appellants took the position before the Ontario Court (General Division) that the Court, in its discretion, should decline to exercise its jurisdiction on the ground that it is more appropriate for a constitutional challenge to sections of the Immigration Act to be heard in the Federal Court. On March 24, 1992 Ferrier J. granted the appellants' motion to stay the respondent's application for declaratory and injunctive relief. The deportation order was stayed by Galligan J.A. pending disposition of the respondent's appeal to the Court of Appeal for Ontario. The appellants subsequently consented to the issuance of an interlocutory injunction prohibiting the Minister of Employment and Immigration from removing the respondent from Canada until final disposition of the matters raised in the application. On October 30, 1992, the Court of Appeal for Ontario allowed the respondent's appeal and ordered that the order of Ferrier J. be set aside.
II. Judgments Below
Ontario Court (General Division)
Ferrier J., Endorsement on Motion Record
Ferrier J. stated, "[t]his Court clearly has jurisdiction to grant the relief sought by the Applicant. The issue is whether the Court may decline to exercise its jurisdiction and if so, whether the Court ought to so decline in this case". He then went on to state:
In the absence of any showing that the available review process and appeal process is inappropriate or less advantageous than the habeas corpus jurisdiction of this Court, this Court should, in the exercise of its discretion, decline to grant relief on a habeas corpus application. Both jurisprudence and logic would support that this Court should leave the review of immigration matters with the Federal Court of Canada: Re Peiroo (1989), 69 O.R. (2d) 253 (O.C.A.). To the same effect is the C.A. decision in Sheperd (1989) 52 C.C.C. (3d) 386. I am of course bound by these decisions.
The case at bar does not involve an application for habeas corpus relief, but the relief sought, by way of declaration and injunctive relief, is also discretionary in this Court. The Federal Court has jurisdiction to grant the relief sought in this application and in my view the principles set out by the C.A. in Peiroo and in Sheperd are applicable to the case at bar. The circumstances described by Campbell in Bembeneck 69 C.C.C. (3d) 34 which influenced the Court to take jurisdiction, are not present here.
As to whether the process is less advantageous in the Federal Court, as indicated, the relief is available in that Court and in my view the requirement of leave in that Court to make a claim for a declaratory judgment does not make the process less advantageous....
Accordingly, it is my view that this proceeding should be stayed and I so order.
Ontario Court of Appeal (1992), 11 O.R. (3d) 65
Arbour J.A. (Carthy J.A. concurring)
Arbour J.A. held that the sole issue before the court was: assuming that the Federal Court would have jurisdiction to hear the respondent's application, upon what principles should a provincial superior court decline to hear an application for a remedy under the Charter in deference to a prospective litigation of the issue in the Federal Court?
Dealing first with the argument that the issue falls to be decided by the habeas corpus jurisprudence, Arbour J.A. found that the cases relied upon by the motions court judge merely affirm that a provincial superior court may decline to entertain an application for habeas corpus when the applicant is attempting to bypass a statutory scheme. She held that those cases offered little guidance in the present case where the comprehensive statutory scheme has been exhausted.
Arbour J.A. expressed the view that, assuming that both the Federal Court and the Ontario Court had jurisdiction, the prima facie choice of jurisdiction should have been that of the respondent. She saw no reason why the Ontario Court should defer to the expertise of the Federal Court since this was not an immigration case, but a constitutional one. She held that no principle of curial deference in constitutional adjudication could be relied upon by a provincial superior court to defer to the expertise of the Federal Court merely because the constitutional violation is said to have occurred in the context of an immigration matter.
Although the issue of convenience was not raised as such, Arbour J.A. felt that the trial judge's reference to advantage and inconvenience seemed to originate in the doctrine of forum non conveniens. Referring to the opinion of Lamer J. (as he then was) in Mills v. The Queen, [1986] 1 S.C.R. 863, she stated that the test articulated under that doctrine should not be determinative of the jurisdictional conflict in this case, but agreed that the principles offer useful guidance for the proper exercise of discretion.
After stating the forum conveniens test to be applied where the appropriate forum is at issue, Arbour J.A. said that she disagreed with Ferrier J.'s conclusion that the leave requirement to proceed before the Federal Court did not make the process less advantageous. She was of the view that the leave threshold would operate as a juridical disadvantage to the respondent who could commence the identical procedure as of right in the Ontario Court. Arbour J.A. also noted that the Federal Court of Appeal had already decided against the contentions of the respondent and thus his application was likely to fail in that forum. She held that the respondent was entitled to avail himself of the juridical advantage he would enjoy in the Ontario courts and to choose, between two equally competent forums, the one in which the law was not already settled against his contention. Arbour J.A. concluded by acknowledging the limited usefulness of the forum non conveniens test in constitutional cases, but held that if applied to the present case it could not support the granting of a stay.
Finally, Arbour J.A. stated, at p. 72:
In my opinion, the factors relied upon by the motions court judge in this case did not justify his decision to decline to exercise his jurisdiction and I see no other relevant factor that would. There is no principle which justifies a provincial superior court declining jurisdiction simply because the identical remedy could be pursued in the Federal Court, when a constitutional remedy is sought in good faith before a court fully competent to grant it.
Abella J.A. (dissenting)
Abella J.A. emphasized the breadth of a motions court judge's discretion to grant a stay but held that the discretion should not be exercised in a patently unreasonable manner. She described the respondent's application as follows at p. 76:
The [respondent] could have raised virtually all of his Charter arguments in his numerous immigration and judicial review proceedings. This action is, at heart, an attempt to have the credible basis decision and the deportation order reviewed and relitigated by a different forum by recharacterizing and reformulating as constitutional the outcomes and procedures the [respondent] had previously (and unsuccessfully) invoked. Every opportunity existed for the raising of all of these Charter challenges. But the [respondent] chose instead first to exhaust the forums available in the pursuit of his statutory rights in immigration matters, then to re-explore them in other forums available in the pursuit of his Charter ones.
This application is essentially an application to declare the [respondent's] deportation order and the Federal Court's process unconstitutional. The entire background presented in this appeal through extensive documents and submissions to this court, is based on the particular facts which arose in the [respondent's] own immigration proceedings, proceedings which have been declared by Parliament to be within the jurisdiction of the Federal Court. The [respondent's] application is, while now designated to be constitutional in nature, a constitutional challenge to the results in his own case.
Abella J.A. referred to Maynard v. Maynard, [1951] S.C.R. 346, in support of the proposition that parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case. That case also suggested that the plea of res judicata applies when parties seek to bring forward points which could have been raised in earlier litigation. Abella J.A. found both these propositions germane to the case at bar.
Abella J.A. went on to state that, even if she was wrong to suggest that the new proceedings before the Ontario Court could and should have been raised in any of the immigration and Federal Court procedures, Ferrier J. did not err by deferring this new application to another court of concurrent jurisdiction. In her view there was no obligation on the part of the Ontario Court (General Division) to hear every case presented for adjudication in which there is a constitutional issue raised. She held that the discretion to decline to hear such a case surely exists when not only does the Federal Court have concurrent jurisdiction to deal with the matter, it also has expertise and experience in immigration law, administrative law and Federal Court procedure, the core issues of the respondent's application. She also found it significant that the Federal Court has an exclusive mandate over immigration matters and found the principles from Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (dealing with habeas corpus), were applicable. Abella J.A. noted that the failure to decline to exercise jurisdiction would raise concerns over forum-shopping, inconsistency and multiplicity of proceedings.
In conclusion, Abella J.A. held that a categorical denial of a superior court judge's discretion to decline to exercise jurisdiction in favour of a tribunal of concurrent jurisdiction was not warranted. She held that the discretion not only existed, but should not have been interfered with when, as in the present case, it was reasonably exercised.
III. Analysis
We are all of the view that this appeal should be allowed. We are generally in agreement with the dissenting reasons delivered by Abella J.A. in the Court of Appeal. We are unable to agree, however, with two aspects of Abella J.A.'s reasons.
First, citing cases which deal with the doctrine of res judicata Abella J.A. concluded that all of the issues raised in the respondent's application to the Ontario Court (General Division) could and should have been raised in the proceedings in the Federal Court. We interpret this as a finding that the issues were either res judicata or subject to issue estoppel. In view of the fact that leave to commence judicial review was required in both the Federal Court of Appeal and the Federal Court, Trial Division and one of the issues was the constitutional validity of the leave procedure itself we have serious doubts about the application of either res judicata or issue estoppel. Moreover, in view of the conclusion reached by Abella J.A. and which we share, it was and is unnecessary to address this issue.
Second, Abella J.A. stated that the standard of review for an appellate court reviewing a lower court's exercise of discretion is whether the exercise of discretion is patently unreasonable. While the latter is appropriate in review of decisions of administrative tribunals, the test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 76-77, per La Forest J. See also Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at pp. 154‑55.
These two points aside, we agree with Abella J.A.'s conclusion that there is no basis for interfering with Ferrier J.'s decision to stay the proceedings commenced by the respondent. The Ontario Court (General Division) and the Federal Court had concurrent jurisdiction to hear the respondent's application but, under s. 106 of the Courts of Justice Act, any judge of the General Division had a discretion to stay the proceedings. Ferrier J. properly exercised his discretion on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum. In view of our decision in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, this was the correct approach.
Since Ferrier J. took into account all relevant considerations in exercising his discretion to grant a stay, there is no basis for an appellate court to interfere with his decision. The majority in the Ontario Court of Appeal erred in doing so. Accordingly, the appeal is allowed.
Appeal allowed.
Solicitor for the appellants: John C. Tait, Ottawa.
Solicitors for the respondent: Ruby & Edwardh, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.
Solicitor for the intervener the Canadian Council for Refugees: David Matas, Winnipeg.
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