Date:
20090226
Docket: A-244-08
Citation: 2009 FCA 59
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
TRUDEL J.A.
BETWEEN:
QIANHUI DENG,
ADMINISTRATOR ON BEHALF OF THE
ESTATE OF SHIMING DENG (DECEASED)
Appellant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
This is an
appeal from a decision of Pinard J. of the Federal Court rendered in
immigration matters. By that decision, he refused to grant an extension of time
for bringing an application for judicial review and he dismissed the pending
application for judicial review.
[2]
The
fundamental issue is whether this Court has jurisdiction to entertain the
appeal in view of paragraphs 72(2)(e) and 74(d) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
[3]
Paragraph
72(2)(e) prohibits appeals from the decision of the court with respect
to an application for judicial review and with respect to an interlocutory
judgment.
[4]
Under
paragraph 74(d), a judgment disposing of a judicial review application
may not be appealed unless the judge, when rendering the judgment, certifies
that a serious question of general importance is involved and states the
question. In the case at bar, Pinard J. refused to certify a question.
Facts and Proceedings
[5]
On October 26, 2005, an immigration officer
prepared a report under section 44 of the IRPA. In that report, he expressed
the opinion that Mr. Shiming Deng was inadmissible to Canada for serious criminality as a result of a
conviction for assault. He confiscated the Chinese passport of Mr. Deng
pursuant to section 140 of the IRPA.
[6]
A senior
immigration officer reviewed the report. He then referred Mr. Deng, under
subsection 44(2) of the IRPA, to the Immigration Division for an admissibility
hearing.
[7]
On November 22, 2005, Mr. Deng died in tragic
circumstances. Nearly two years later, on October 12, 2007, the appellant, who
is the father of Mr. Deng and the administrator of his estate, brought an
application for leave to commence judicial review proceedings and sought an
order granting an extension of time for filing and serving the application. The
object of the challenge was the referral to the admissibility hearing and the
confiscation of his dead son’s passport more than two years earlier.
[8]
On January
31, 2008, a judge of the Federal Court sitting as a motions judge granted the
appellant leave to commence judicial review proceedings and set out a
time-frame for completing the proceedings. At the hearing of the application
for judicial review before Pinard J., the respondents raised as a preliminary
issue the fact that no decision had been rendered granting an extension of time
to commence the judicial review proceedings.
[9]
Pinard J.
dealt with this preliminary issue raised by the respondents. He agreed with
their submissions that the question of the extension of time had not been
determined. He then considered the appellant’s request for an extension of
time. He denied it and dismissed the application for judicial review.
Whether this Court has jurisdiction to
hear the appeal
[10]
On May 21,
2008, Pinard J. rendered two decisions: one dismissing the motion for an
extension of time, and the other dismissing the application for judicial
review.
[11]
The
decision dismissing the motion and refusing the extension of time is an
interlocutory decision. Clearly, under paragraph 72(2)(e), that
interlocutory decision cannot be appealed.
[12]
Counsel
for the appellant relies upon the decision of this Court in Subhaschandran
v. Canada, [2005] 3 F.C.R. 255 where Sexton J.A. found that the adjournment
of a stay motion to a time when the stay matter would be moot amounted to a
constructive refusal to exercise jurisdiction which called for a remedy in the
nature of mandamus. He submits that Pinard J., in the present instance,
refused to exercise his jurisdiction.
[13]
I disagree
with this submission. Pinard J. did exercise a jurisdiction when he dealt with
the motion for an extension of time and denied it. He also exercised his
jurisdiction when he dismissed the application for judicial review.
[14]
In the
alternative, counsel for the appellant contended that Pinard J. had no
jurisdiction to review the decision of the motions judge and deny the leave
application that the motions judge had granted. According to counsel, Pinard J.
had no power to review the merits of the decision rendered by another judge of
coordinate jurisdiction. Counsel refers us to the decision of our Court in Bubla
v. Solicitor General, [1995] 2 F.C. 680, at page 692.
[15]
With
respect, I do not think that this is what Pinard J. did in the present
instance. The order of the motions judge was silent on the issue of the
extension of time. The order contained no conclusion either granting or denying
an extension. Pinard J. made a finding of fact that the matter had been
overlooked by the motions judge. That finding is not unreasonable in the
circumstances. The memorandum of fact and law of the appellant and that of the
respondent, while dealing in their arguments with the extension of time,
contained in the part relating to the Order sought no demand regarding an
extension of time. That may explain the oversight: for another example of an
omission to consider the request for an extension of time, see Nayyar v. Canada (Minister of Citizenship and
Immigration)
(2007), 62 Imm. L.R. (3d) 78.
[16]
The
appellant submits that it should be inferred from the granting of the leave, by
the motions judge, to commence the application for judicial review that the
motions judge also granted an extension of time. A similar situation occurred
in Canada (Minister of Human Resources
Development) v. Eason
(2005), 286 F.T.R. 14 (F.C.) where Tremblay-Lamer J. refused to draw that kind
of inference. I agree with the following assertion that she makes at paragraph
20 of her reasons for judgment:
[20] However, as
stated above, the member was silent on the issue of extension of time. The
respondent suggests that as leave to appeal cannot be granted unless an
extension of time is also granted, it can be inferred from the member’s
decision to grant leave that she also granted an extension of time. I disagree.
While Mr. Eason did apply for the extension of time and for leave, it cannot
automatically be inferred that the member turned her mind to the issue of
extension of time simply because she granted leave. The granting of an
extension of time must be explicitly considered by the decision maker.
[17]
Since the
motion for an extension of time had not been dealt with by the motions judge,
Pinard J. had jurisdiction to decide the issue.
[18]
In dismissing
the motion for an extension of time, Pinard J. disposed, by the same occasion,
of the application for judicial review because that application had no valid
legal existence unless duly authorized by a judge to be commenced after the
expiry of the limitation period. To put it differently, the dismissal of the
application for judicial review was a necessary corollary and consequence of
the refusal to extend the time limit.
[19]
As Pinard
J. refused to certify a question when he rendered his judgment on the application
for judicial review, paragraph 74(d) of the IRPA prohibits an appeal.
[20]
For these
reasons, I would dismiss, without costs, this appeal for lack of jurisdiction.
“Gilles Létourneau”
“I
concur
Alice
Desjardins J.A.”
“I
concur
Johanne Trudel J.A.”
Email this Content