Date: 20000105
Docket: A-665-00
CORAM: STRAYER J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
KOZAK GEZA, et al
Appellants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: A-666-00
BETWEEN:
SANDOR SMAJDA, ET AL
Appellants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Dealt with in writing without appearance of parties
ORDER delivered at Ottawa, Ontario, January 5, 2001
REASONS FOR ORDER BY: SHARLOW J.A.
CONCURRED IN BY: STRAYER J.A.
EVANS J.A.
Date: 20000105
Docket: A-665-00
CORAM: STRAYER J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
KOZAK GEZA, et al
Appellants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: A-666-00
BETWEEN:
SANDOR SMAJDA, ET AL
Appellants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.A.
The appellants are refugee claimants whose claims have been denied by the Immigration and Refugee Board. They commenced applications for leave and judicial review, and then moved to have their applications for judicial review converted to actions under subsection 18.4(2) of the Federal Court Act, R.S.C. 1985, c. F-7. Those motions were denied on October 16, 2000. (The decisions are now reported as Kozak v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1680 (Court File No. Docket IMM-488-99) and Sandor v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1668 (Court File No. IMM-491-99)). The appellants wish to appeal the decision of the motions judge.
Counsel for the appellants had asked the motions judge to certify a question under subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2, so that her decision on the motions could be appealed. Subsection 83(1) reads as follows:
| 83(1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court -- Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
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| 83. (1) Le jugement de la Section de première instance de la Cour fédérale rendu sur une demande de contrôle judiciaire relative à une décision ou ordonnance rendue, une mesure prise ou toute question soulevée dans le cadre de la présente loi ou de ses textes d'application -- règlements ou règles -- ne peut être porté en appel devant la Cour d'appel fédérale que si la Section de première instance certifie dans son jugement que l'affaire soulève une question grave de portée générale et énonce celle-ci.
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Counsel for the Crown argued that the motions judge was without jurisdiction to certify a question, and the motions judge agreed. She said this (at paragraph 13 of her reasons in IMM-488-99 and paragraph 12 of her reasons in IMM-491-99):
| It seems to me that section 83(1) of the Immigration Act, supra, concerning certification of a question for the purposes of an appeal, applies in relation to a decision made under the Immigration Act, supra. The present Notice of Motion is made within the context of the Federal Court Act, supra. Disposition of this Notice of Motion is not a "judgment" which would trigger application of section 83(1) of the Immigration Act, supra. |
Notices of appeal were filed on October 25, 2000, unsupported by a certified question. Counsel for the Crown wrote to the Court on November 1, 2000 to submit, on the basis of Grandison v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1377 (QL) (F.C.A.), that the Court is without jurisdiction to entertain the appeals because there is no certified question. By an order dated November 10, 2000, the Court required the appellants to show cause by written representations why the appeals should not be dismissed for want of jurisdiction. Written submissions have now been received from both parties.
Generally, a decision of a judge of the Trial Division of the Federal Court may be appealed under subsection 27(1) of the Federal Court Act:
| 27. (1) An appeal lies to the Federal Court of Appeal from any
(a) final judgment,
(b) judgment on a question of law determined before trial,
(c) interlocutory judgment, or
(d) determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada,
of the Trial Division.
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27. (1) Il peut être interjeté appel, devant la Cour d'appel fédérale, des décisions suivantes de la Section de première instance_:
a) jugement définitif;
b) jugement sur une question de droit rendu avant l'instruction;
c) jugement interlocutoire;
d) jugement sur un renvoi d'un office fédéral ou du procureur général du Canada.
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However, that right of appeal is limited by subsection 83(1) of the Immigration Act, quoted above. Any doubt that subsection 83(1) was intended as a limitation is removed by subsection 84(2) of the Immigration Act, which reads as follows:
84(2) In the event of an inconsistency between any of the provisions of sections 82.1 to 83 of this Act and any provision of the Federal Court Act, the provisions of this Act prevail to the extent of the inconsistency.
84(2) Les dispositions des articles 82.1 à 83 de la présente loi l'emportent sur les dispositions incompatibles de la Loi sur la Cour fédérale.
It follows that the Federal Court of Appeal has no jurisdiction to entertain any appeal that is within the scope of subsection 83(1) of the Immigration Act, unless the appeal is supported by a question certified by a judge of the Trial Division.
It is argued for the appellants that subsection 83(1) of the Immigration Act offends section 7 the Canadian Charter of Rights and Freedoms. That argument was considered and rejected in Huynh v. Canada, [1996] 2 F.C. 976, (1996), 34 Imm. L.R. (2d) 199, (1995), 197 N.R. 62, (1995), 134 D.L.R. (4th) 612 (F.C.A.), leave to appeal to the Supreme Court of Canada refused, October 24, 1996 (Court File 25397), which was followed in Grandison (cited above). I see no reason to reach a different conclusion in this case. The other constitutional arguments submitted for the appellants must fail for the same reason.
The question, then, is whether a decision on a motion under subsection 18.4(2) of the Federal Court Act to convert an application for judicial review into an action is within the scope of subsection 83(1) of the Immigration Act because the application for judicial review challenges a decision made under the Immigration Act.
This Court has considered on several occasions whether subsection 83(1) of the Immigration Act applies to decisions on various applications that invoke the jurisdiction of the Trial Division under the Federal Court Act or the Federal Court Rules, 1998 or its predecessor. The earliest such decision is found in an order rendered on January 23, 1995 in Hong v. Minister of Employment and Immigration (Court File No. A-176-94). In that case, a judge of the Trial Division had denied a motion to extend the time to commence an application for judicial review of the decision of a visa officer under section 9 of the Immigration Act. The jurisdiction to extend the time for commencing an application for judicial review has its source in subsection 18.1(2) of the Federal Court Act. The applicant sought to appeal, but the appeal was quashed on the basis that the decision sought to be appealed was within the scope of subsection 83(1) of the Immigration Act (a "judgment ... on an application for judicial review with respect to [a] decision ... made ... under [the Immigration Act]".
Similarly, in Ge v. Canada (Minister of Citizenship and Immigration) (1998), 234 N.R. 87 (F.C.A.), this Court held that a decision to deny a stay of deportation pending disposition of an application for judicial review is incidental to the judicial review and therefore cannot be appealed without a certified question. The jurisdiction of the Trial Division to grant a stay is found in section 18.2 of the Federal Court Act.
The same reasoning was applied in Balaga v. Canada (Minister of Citizenship and Immigration) (1995), 198 N.R. 315, (1995), 33 Imm. L.R. (2d) 74 (F.C.A.). An application for judicial review was before the Trial Division relating to a decision of the Minister that there were insufficient humanitarian and compassionate grounds for the applicant to apply for landing from within Canada. An organization called Defence for Children International - Canada sought leave under one of the predecessors to Rule 109 to intervene in the application for judicial review. The application was dismissed, and an appeal of that decision was commenced but quashed on the basis that there was no certified question. Similarly, in Su v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1717 (QL) (F.C.A.), an appeal of a decision not to award costs under former Rule 1618 was quashed for lack of a certified question.
Finally, in Grandison (cited above), this Court held that a certified question was required to support an appeal of an interlocutory judgment expunging certain material from the applicant's record and ordering costs. Strayer J.A. said this (at paragraph 5):
| Not only is this position, that there can be no appeal of an interlocutory order in such proceedings without a question being certified, supported more clearly by the jurisprudence, it also appears to be more consistent with the purpose of subsection 83(1) of the Immigration Act. The obvious purpose of present sections 82.1 to 84 of the Immigration Act was to reduce the number of frivolous applications for judicial review and appeals from decisions in such cases. Subsection 83(1) was intended generally to make final the decision of the Trial Division, but allowed for the hearing of appeals on important issues which transcended the particular case. The obvious intent was to allow this Court to deal with, but only with, such issues as required to give the Trial Division general guidance where otherwise there might be inconsistencies between the judges of the Trial Division on a "serious question of general importance". This clearly implies that appeals were not to be taken on issues peculiar to a given case such as procedural matters. Thus the limitation on the appeals of a "judgment" in subsection 83(1) must be taken to cover by implication all orders incidental to such a judgment. |
In my view, the same reasoning applies to the decision of the motions judge in this case. I conclude that these appeals must be quashed for lack of a certified question.
That is not the end of the matter, however. The motions judge, having incorrectly concluded that subsection 83(1) of the Immigration Act did not apply, did not consider whether the motions before her raised a serious question of general importance. In fairness to the appellants, this matter will be referred back to the motions judge for consideration of a certified question under subsection 83(1). If a question is certified, the appellants will be at liberty to commence new appeals.
The appellants seek solicitor and client costs. I note that counsel for the Crown has been inconsistent in this matter, arguing before the motions judge that she had no jurisdiction to certify a question, and before this Court that subsection 83(1) of the Immigration Act applied to her decision and that a certified question was required before her decision could be appealed. But for that inconsistency, the motions judge might well have considered the matter of a certified question in the first instance. Instead, the appellants have been compelled to waste time and effort in commencing and defending these appeals. I consider this an appropriate case to award the appellants costs under Rule 22 of the Federal Court Immigration Rules, 1993 in an amount which I fix at $1,500.
Karen R. Sharlow
J.A.
"I agree
B.L. Strayer J.A."
"I agree
J.M Evans J.A."
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