Date: 20100610
Docket: A-432-09
Citation: 2010 FCA 157
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
SYED MOHAMMAD ARIF
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an appeal from
a decision of Lemieux J. of the Federal Court refusing to grant an application
for reconsideration of a decision rendered by a Deputy Judge pursuant to subsection
14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act). By that
decision, the Deputy Judge set aside the decision of a Citizenship Judge
denying Mr. Arif’s application for citizenship and returned the matter before a
different Citizenship Judge for a new hearing. A subsequent decision issued by
the same Deputy Judge one month later in the same matter (the second decision)
came to the opposite conclusion.
[2]
The Minister of
Citizenship and Immigration (the Minister) brought an application pursuant to
Rules 397 and 399(2)(a) of the Federal Courts Rules, SOR/98-106
(the Rules) seeking to have the first decision reconsidered and replaced by the
second decision or, in the alternative, asking that both decisions be set aside
and that the appeal be heard again before a different judge of the Federal
Court.
[3]
A motion for
reconsideration pursuant to Rule 397 must be heard by the judge who issued the
decision sought to be reconsidered. However, in this case the Deputy Judge was
unable to act for medical reasons with the result that another judge had to
assume that task.
[4]
Lemieux J. denied the
motion for reconsideration on the basis that the first decision was not issued
in error; that the Deputy Judge was functus officio after having issued
it, and that the interest of justice would not be served by setting aside the
two decisions and ordering a new appeal.
[5]
The present appeal
ensued. Shortly after the notice of appeal was filed, the respondent brought a
motion before this Court seeking to have it struck out on the basis that it was
frivolous, vexatious and bereft of any chance of success. The underlying
argument was that no appeal lies from a decision of the Federal Court rendered
pursuant to an appeal from a decision of a Citizenship Judge approving or
denying an application for citizenship and that accordingly this Court was
without jurisdiction to hear the appeal.
[6]
In this respect, subsection
14(6) provides:
|
14. (6) A decision of the [Federal]
Court pursuant to an appeal made under subsection (5) is, subject to section
20, final and, notwithstanding any other Act of Parliament, no appeal lies
therefrom.
|
14. (6) La décision de la Cour
[fédérale] rendue sur l’appel prévu au paragraphe (5) est, sous réserve de
l’article 20, définitive et, par dérogation à toute autre loi fédérale, non
susceptible d’appel.
|
[7]
Nadon J.A., sitting
singly, denied the motion to strike by order dated November 27, 2009. No
reasons were given.
[8]
In resisting the
appeal, the respondent again raises his jurisdictional objection to the hearing
of the appeal. The Minister for his part argues that Nadon J.A. finally disposed
of this issue when he denied the motion to strike and that the matter is,
accordingly, res judicata.
[9]
There is no basis for
this last contention. The issue before Nadon J.A. on the motion to strike was
whether it was “plain and obvious” that the appeal filed by the Minister had no
chance of success (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959). It
follows that the fact that Nadon J.A. allowed the appeal to proceed despite the
objection raised on behalf of Mr. Arif cannot be construed as a final
pronouncement on the issue of jurisdiction. At most, it indicates that he was
not convinced at that juncture that the Court was without jurisdiction to hear
the appeal.
[10]
In any event, if
Nadon J.A. had purported to finally decide the issue of jurisdiction (which he
did not), his decision would not be binding on the panel hearing the appeal (Horne
v. Canada (Minister of Citizenship and
Immigration) 2010 FCA 55
at para. 5).
[11]
The respondent’s
argument as to jurisdiction is simply that if this Court is precluded from
hearing appeals from decisions of the Federal Court pursuant to an appeal under
subsection 14(5), it cannot logically have jurisdiction to hear appeals from
decisions of the Federal Court reconsidering or refusing to reconsider these very
decisions. To hold otherwise would effectively allow parties to a citizenship
appeal to circumvent Parliament’s clearly expressed intent that decisions
rendered by the Federal Court pursuant to an appeal under subsection 14(5) are
final and that no appeal lies therefrom.
[12]
The Minister resists
this argument relying on the decision of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Tobiass,
[1997] 3 S.C.R. 391 (Tobiass). One of the issues in that case was
whether this Court had jurisdiction to hear an appeal from a decision of the
Federal Court granting a stay of a citizenship revocation proceeding. Using
language similar to that found in subsection 14(6), subsection 18(3) of the Act
provides that no appeal lies from a decision of the Federal Court “made under
subsection (1)” which deals with whether a person has obtained citizenship by
false representation or fraud.
[13]
The Supreme Court
concluded (Tobiass, paras 50 to 53) that the decision to stay the
proceeding was not made under subsection 18(1), since the proceedings were
stayed for reasons unrelated to the circumstances surrounding the question
whether citizenship was obtained by fraud. Applying this reasoning, the
Minister contends that the questions which Lemieux J. was called upon to decide
(i.e., whether the first decision was validly issued; whether the Deputy Judge
was functus officio after having issued it; whether the second judgment
can be considered as a new “matter” within the meaning of Rule 399(2)(a)
and whether it would be in the interest of justice that the two decisions be
set aside and a new appeal be ordered) turn on issues which are separate and
distinct from the question which underlies the citizenship appeal (i.e.,
whether the Citizenship Judge properly held that Mr. Arif’s citizenship
application should be denied).
[14]
This Court has
recently taken a close look at the interpretation of subsection 14(6) in Canada
(Minister of Citizenship and Immigration) v. Saji, 2010 FCA 100 (Saji).
The issue in that case was whether subsection 14(6) prevented an appeal from an
interlocutory judgment of the Federal Court refusing to grant the Minister’s
motion to strike Mr. Saji’s appeal from a decision rendered under subsection
14(5) as out of time. After reviewing the case law and in particular Tobiass,
the Court held that an appeal from the decision of a Federal Court disposing of
a motion to strike as being out of time is not barred by subsection 14(6).
[15]
The exact reasoning
of the Court is set out in the following passage (Saji, para. 29):
…, an appeal from the
Federal Court to this Court is only precluded by subsection (6) as a decision
made “pursuant to an appeal under subsection (5)” if the decision in question
relates to the ultimate question, namely, whether the [C]itizenship [J]udge
erred in approving or not approving a citizenship application, or in
determining a question related to it. In my view, a decision by a Federal
Court Judge disposing of a motion to strike an appeal as being out of time is
not related to the ultimate question to be decided on that appeal, regardless
of whether the motion is granted or denied. This is because, in the words used
in Tobiass at [paragraph] 58, the decision “will not be made in order to
more efficiently determine the ultimate question”.
[Emphasis
added.]
[16]
The proposition so
stated is that this Court has jurisdiction if the decision of the Federal Court
sought to be appealed does not dispose of, and is not related to, the ultimate
question in the citizenship appeal. A decision that is made “to more
efficiently determine the ultimate question” is a decision that relates to the
ultimate question.
[17]
In my view the
decision of Lemieux J. clearly comes within this description. Confronted with a
difficult and unusual situation he attempted to identify the most efficient way
of dealing with the ultimate question. In dealing with the Minister’s
contention that he should set aside both decisions and order that the appeal be
heard de novo, Lemieux J. considered the merits of the decision of the
Citizenship Judge and concluded that a new appeal would not be a useful step (Order,
p. 10):
…, I consider
the Citizenship Judge’s decision which gave rise to the appeal at issue to be
weak in the sense that her reasons for refusing Mr. Arif’s citizenship
application are not at all clear nor is her application of the relevant
jurisprudence on establishment of residence and once residence established, the
impact of the absences on residence or whether Mr. Arif had, in any event, been
physically present in Canada for sufficient days to meet the requirements of [paragraph]
5(1)(c). In these circumstances, another [appeal] is likely not to be
productive.
[18]
Lemieux J. also
considered that no prejudice would be suffered by either party if, rather than
ordering a new appeal, the matter was referred the matter back to a different
Citizenship Judge, as had been ordered by the first decision.
[19]
These considerations,
amongst others, led Lemieux J. to deny the Minister’s request that a new appeal
be ordered.
[20]
Counsel for the
Minister was critical of Lemieux J.’s incursion into the merits of the decision
of the Citizenship Judge. He suggested that his assessment of the merits was
unwarranted since it was not relevant to the issue which he was called upon to
decide.
[21]
With respect, this
contention is baseless. In deciding whether it would be in the interest of
justice to order a new appeal, as he was being asked to do by the Minister,
Lemieux J. was obviously entitled to consider whether an appeal would be
productive. That is the context in which he considered the merits and concluded
that referring the matter back to a different Citizenship Judge was the most
efficient solution.
[22]
It is apparent from
the foregoing that not only is the decision of Lemieux J. related to the
ultimate question to be decided in the citizenship appeal but that he arguably pronounced
on it when he held that a fresh appeal would not be productive.
[23]
It follows that
applying the test set out in Saji, this Court is without jurisdiction to
hear this appeal.
[24]
I would dismiss the
appeal with cots.
“Marc
Noël”
“I agree.
Johanne
Trudel J.A.”
LÉTOURNEAU J.A. (Concurring Reasons)
[25]
I endorse the
conclusion reached by my colleagues. However, I want to address three errors
committed by Lemieux J. (the judge) in determining the issue before him.
[26]
The first relates to
his interpretation of the word “matter” in Rule 399(2)(a) of the Federal
Courts Rules. The judge ruled that the rendering of the second decision by
the Federal Court was not a “new matter” (fait nouveau) within the meaning of
the Rule because, in his view, the Federal Court was functus officio at
that time and therefore the second decision is void and does not legally exist.
Rule 399(2)(a) reads:
|
Setting aside or variance
399.
(2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that
arose or was discovered subsequent to the making of the order;
…
|
Annulation
399. (2) La Cour peut, sur requête, annuler
ou modifier une ordonnance dans l’un ou l’autre des cas suivants :
a) des faits nouveaux sont
survenus ou ont été découverts après que l’ordonnance a été rendue;
[…]
|
[27]
With respect, Rule
399(2)(a) is concerned with the existence of a new matter, a new fact
discovered subsequent to the making of the order, not the validity, legitimacy
or appropriateness of that new matter. It cannot be denied as a fact or a
matter that a second conflicting, irreconcilable decision was rendered by the
same judge of the Federal Court on the very same issue. It is a fact or a
matter that is new in relation to the first decision. It is also a new fact or
matter that casts doubt on the whole process, on the regularity of the first
decision and on how the Federal Court really intended to dispose of the appeal
on the merits.
[28]
The judge also erred
when he concluded that Rule 399(2)(a) was not an exception to the functus
officio principle. There is clear authority from this Court that the Rule
is an exception to the principle: see Apotex Inc. v. Zeneca Pharma Inc.,
196 D.L.R. (4TH) 299, at page 303. The Rule allows a judge to
reconsider and alter his or her decision on account of a new matter which,
incidentally, ought not to be confused with new evidence and the new evidence
rule which is more limited in its scope of application: see Saywack v.
Canada (M.E.I.), [1986] F.C. 189, at pages 202-203.
[29]
Thirdly, the judge
took a stringent approach to the functus officio rule and made an overly
strict application of it. However, there are compelling authorities stating
that the functus officio rule does not apply strictly, and even does not
apply, when no further appeal lies from the decision rendered.
[30]
In Reekie v. Messervey,
[1990] 1 S.C.R. 219, at pages 222-223 (Reekie), the Supreme Court of
Canada, under the pen of Sopinka J., wrote in relation to Rule 50 of its own
Rules and the common law rule of functus officio:
In
my opinion, it would be extraordinary if the Court were powerless to remedy the
injustice that is conceded as present in this case. As a general
principle, the rules of procedure should be the servant of substantive rights
and not the master. I believe that this is the underlying rationale of
Rule 7 which states:
…
Rule
50 is a reflection of the common law rule of functus officio. This
rule was developed to achieve a finality of proceedings which were subject to a
full appeal: see Chandler v. Alberta Association of Architects,
[1989] 2 S.C.R. 848. Its narrow scope may be appropriate when applied
to judgments which can be corrected on appeal, but is inappropriate to
decisions of this Court which are not subject to appeal. Any error
creating an injustice can only be cured by a reconsideration of the decision by
this Court.
[Emphasis added.)
[31]
In Doucet-Boudreau
v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at
page 48, Iacobucci and Arbour JJ., quoting the decision in Reekie,
reasserted the principle that the functus officio rule “exist to allow
finality of judgments from courts which are subject to appeal”: see also Luc
Huppé, Le régime juridique du pouvoir judiciaire, Wilson et Lafleur ltée,
Montréal, 2000, at pages 151 et 152.
[32]
In matter of
citizenship, judgments of the Federal court are not subject to a further
appeal. In the present instance, the judge erred in his interpretation and
application of the functus officio rule.
“Gilles Létourneau”
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