Date: 19990107
Docket: A-522-98
CORAM: THE HONOURABLE MR. JUSTICE MARC NOËL
BETWEEN:
KENNETH M. NARVEY
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and VLADIMIR KATRIUK
Respondents
Heard at Ottawa, Ontario, on Wednesday, January 6, 1999
Order delivered at Ottawa, Ontario, on Thursday, January 7, 1999
| REASONS FOR ORDER BY: NOË J.A. |
Date: 19990107
Docket: A-522-98
CORAM: THE HONOURABLE MR. JUSTICE MARC NOËL
BETWEEN:
KENNETH M. NARVEY
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and VLADIMIR KATRIUK
Respondents
REASONS FOR ORDER
NOËL J.A.
The appellant moves on an urgent basis for an Order expediting the hearing of his appeal and staying the proceedings in the underlying reference before the Trial Division1 "in the sense of postponing any ruling on the merits therein, pending resolution of the present appeal."2
The appeal is from an Order of Nadon J. dismissing the appellant"s motion for leave to intervene which had been sought with the view of convincing Nadon J. that he should recuse himself on account of a reasonable apprehension of bias. The urgency is said to arise because Nadon J. recently announced that he would render his decision on the merits of the reference by Friday, January 8, 1999. The appellant contends that should Nadon J. render his decision before his appeal can be decided, the relief which he seeks will become nugatory. Hence his request for what is in effect an interim injunction preventing Nadon J. from rendering his decision.
[1] A brief review of the relevant facts is necessary.
[2] The evidence in the reference was heard by Nadon J. at various times between December 1, 1997 and June 22, 1998. Argument was completed on July 3, 1998 in Montreal and the matter was taken under advisement with the projected decision date being set for the end of August 1998. On September 1, 1998, the appellant brought a motion before Nadon J. for leave to intervene in the proceedings in order to argue both that certain comments made by Nadon J. during the hearing and the manner in which he had interacted with counsel in respect of their argument gave rise to a reasonable apprehension of bias.
[3] On September 11, 1998, this motion for leave to intervene was heard by conference call. It was dismissed with reasons on September 17, 1998. The next day, the appellant lodged an appeal against this decision.
[4] Thereafter, on September 29, 1998, the appellant brought a motion in the Trial Division for an Order prohibiting Nadon J. from rendering his decision pending the outcome of his appeal before the Court of Appeal. This motion was denied by Muldoon J. by decision rendered on December 3, 1998 on jurisdictional grounds.3
[5] On December 28, 1998 after becoming aware of Nadon J"s intention to release his reasons, the appellant asked that the present motion be set down urgently. By a note to the Registry issued on December 29, 1998, Strayer J.A. directed that the motion be heard before January 8, 1999, the date of the expected release of the decision of Nadon J. on the merits of the reference.
[6] It is important to note that neither party took the position before Nadon J. that there was any merit to the appellant"s claim of bias or reasonable apprehension of bias. While the Minister argued at the time that the appellant should be granted leave to intervene to clear the air, the position adopted by the Minister for purposes of the present motion is as follows:
The Minister remains of the view that on the substantive issue, the appellant"s application is without merit. Furthermore, the Minister is of the view that Mr. Justice Nadon properly exercised his discretion under Rule 109 in rejecting the Appellant"s application to intervene.4
[7] Nadon J. held that it was not open to the appellant to raise an issue which the parties themselves chose not to raise. While he would have allowed the intervention if either party was of the view that he should recuse himself on account of bias, he held that the appellant had no standing to raise this issue if the parties were content to ignore it. Thus, the issue raised in the underlying appeal is not whether the appellant has the standing to intervene but whether bias can only be asserted by the parties and whether bias as alleged by the appellant as an intervener can in fact be established.
[8] In order to obtain the relief sought, it was incumbent upon the appellant to satisfy me that his appeal raises a serious issue, that irreparable harm would result in the absence of the issuance of the injunction and that the balance of convenience operates in his favour. Assuming that I otherwise have the authority to grant the type of relief sought5 and that there is a serious issue to be tried, the appellant has been unable to demonstrate irreparable harm or that the balance of convenience favours granting the requested injunction.
[9] The basis for the "irreparable" nature of the harm alleged by the appellant rests entirely on ss. 18(3) of the Citizenship Act which provides:
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
According to the appellant, the result of this limitation is that while in most cases bias can be raised either before or after a decision on the merits, here bias must be dealt with "before a decision on the merits or not at all because there is no appeal."6
[10] I disagree. Bias, whether real or apprehended, goes to jurisdiction.7 Assuming for present purposes that the appellant can demonstrate that Nadon J. was biased or that bias on his part can be reasonably apprehended, the ensuing result would be that Nadon J. was without jurisdiction to rule on the matter before him. A decision on a reference rendered without jurisdiction is not a decision "under" s. 18 of the Citizenship Act , and specifically, it is not a decision to which the limitation contained in ss. 18(3) applies.8
[11] Absence of jurisdiction, if it can be established, is always coupled with a remedy since it goes to the authority to decide. The right of a non-party to bring an appeal where the party concerned fails to do so is recognized.9 It follows that if the appellant correctly holds the view that Nadon J. was biased, a remedy will lie irrespective of whether Nadon J. proceeds to render his decision.
[12] Further, I do not believe that the balance of convenience operates in favour of the appellant. As noted by the Supreme Court in Tobiass, there is a public interest that citizenship revocation cases be dealt within a timely manner without undue delay. The appellant has already caused extensive delay by effectively preventing Nadon J. from rendering his decision and asks this Court to further prolong the delay. In my view, the balance of convenience favours the interest of the parties and of the public generally in seeing this reference come to a timely conclusion.
[13] In the end, it has not been established that the recourse being pursued by the appellant will be rendered nugatory if Nadon J. is allowed to render his decision on the merits. The motion for an interim injunction is therefore dismissed. For the same reasons, the request that the appeal be expedited is denied.
Marc Noël
J.A.
__________________
1M.C.I. v. Katriuk, Court file T-2408-96, a reference to the Federal Court (Trial Division) pursuant to s. 18 of the Citizenship Act.
2Notice of Motion, page 2, paragraph 2.
3An appeal was filed against this decision on December 7, 1998 and is presently pending.
4Minister"s Motion Record, paragraph 20.
5Rule 398 contemplates the stay of an Order pending an appeal. It does not envisage the type of interim relief sought by the appellant here.
6Notice of Motion, paragraph 28.
7R. v. S. (R.D.), [1997] 3 S.C.R. 484 at 526 per Cory J.
8Reference is made to Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at 410-417 and in particular paragraphs 50 and 61. With reference to paragraph 56, I stress that contrary to what seems to have been assumed in the discussion, the Federal Court of Appeal in Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149 at 151, 152, did not pronounce itself on the question of whether interlocutory decisions rendered in the course of a s. 18 reference are governed by ss. 18(3). I also note that the Supreme Court chose to leave this question to be decided if and when it should arise. In my view, issues that go to jurisdiction whether raised against the ultimate decision or to attack an interlocutory decision are not limited by ss. 18(3).
9See Société des Acadians v. Association of Parents, [1986] 1 S.C.R. 549.
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