Date: 20000825
Docket: A-332-00
CORAM: STRAYER J.A.
LINDEN J.A.
NOËL J.A.
B E T W E E N:
KIRK MEAGELL GRANDISON
Appellant
-- and --
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
RULE 369 MOTION dealt with at Ottawa, Ontario on Friday, August 25, 2000
JUDGMENT delivered at Ottawa, Ontario on Friday, August 25, 2000
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: LINDEN J.A.
NOËL J.A.
Date: 20000825
Docket: A-332-00
LINDEN J.A.
NOËL J.A.
B E T W E E N:
KIRK MEAGELL GRANDISON
Appellant
-- and --
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
[1] The appellant brought an application for judicial review against a decision of the respondent Minister's delegate made under the Immigration Act, who formed the opinion that the appellant constitutes a danger to the public.
[2] On the day prior to the date set for the hearing of the application for judicial review the applicant filed a large volume of new material unsupported by an affidavit. On a subsequent motion by the respondent to expunge most of the material from the record, a motions judge so ordered , holding that it was not properly put before the Court. He also ordered costs in favour of the respondent in respect of her motion. No certification of any serious question of general importance was made by the motions judge.The appellant seeks to appeal both of these interlocutory decisions, neither of which of course determines the outcome of the judicial review.When the appellant first sought to file the notice of appeal the matter was referred to me for direction because no question had been certified as apparently required by subsection 83(1) of the Immigration Act. That subsection provides:
| 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 soulèeve une question grave de portée générale et énonce celle-ci.
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In reviewing the file I noted that there was some difference of approach in our jurisprudence on the issue of whether an interlocutory order in a judicial review proceeding concerning a decision made under the Immigration Act could be appealed without a question being certified under subsection 83(1). I therefore directed that the notice of appeal be filed and that submissions be made by the parties on this issue. I have now reviewed and considered the submissions.
[3] The appellant has relied on only one decision of this Court, Moldevenau v. Canada1 in which an appeal of an interlocutory order (in that case, concerning the admissibility of an affidavit) was entertained notwithstanding the absence of a certification. In that case the Court felt bound by a previous decision of the Court in the same case in which a motion to quash for lack of a certified question had been dismissed. But in the subsequent reported decision determining the appeal itself, the panel noted that no jurisprudence had been cited by the earlier panel in dismissing the motion to quash and that the circumstances were unique. The panel said it could not revisit that decision: the proper procedure for the Crown would have been to appeal it which it had not. The Court remarked that an "opportunity . . . to revisit that decision may present itself in another case . . .".
[4] On the other hand this Court has held that there can be no appeal as to costs2 in, or of a refusal of a stay3 incidental to, an application for judicial review, without a question being certified.
[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.
[6] The appellant is essentially arguing that while final judgment of the Trial Division may not be appealable without a certified question, interlocutory decisions can be appealed at will. This would produce an illogical result and one which would be at direct odds with the purpose of subsection 83(1). Nor would it accord with normal expectations where in many courts the possibility of appealing interlocutory, but not final, orders is seriously curtailed.
[7] The appellant argues en passant that subsection 83(1) cannot constitutionally bar an appeal of an interlocutory order as this would amount to a violation of section 7 of the Charter. This Court in Huyn v. M.E.I.4 has already rejected that argument.
[8] The appellant seemingly misunderstood my direction to be an invitation to argue the merits of his appeal. He has argued that the motions judge awarded costs against him in error. I am not considering those aspects of his submission as these would be matters to be argued in the appeal itself.
[9] The appeal should therefore be dismissed, this Court having no jurisdiction to entertain it as no serious question of general importance was certified by the Trial Division judge.
J.A.
I agree A.M. Linden J.A.
I agree Marc Noël
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1 (1888) 235 N.R. 192.
2 Su v. Canada (1997) 225 N.R. 34.
3 Ge v. Canada (1998) 234 N.R. 87.
4 (1996) 197 N.R. 62; leave to appeal refused by S.C.C. 206 N.R. 238 (note).
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