[1] This is a motion by the respondents to dismiss an appeal for mootness. The appeal arises from the consolidation of over 100 judicial reviews in the Trial Division. The Minister of Citizenship and Immigration says the appeal is not moot, but even if it is, this Court should exercise its discretion to hear and decide the appeal in accordance with the principles set forth in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

[2] The Minister has processed the respondents' applications for permanent resident visas under the former Immigration Act, R.S.C. 1985, c. I-2, in compliance with the decision of Kelen J. of February 21, 2003, (2003 FCT 211) which is the decision under appeal. That is what the respondents were seeking in their judicial review applications. They say they have no interest in the appeal of Kelen J.'s decision. We are satisfied they do not. We are unable to discern any live controversy or concrete dispute remaining between the parties. The appeal is, therefore, moot.

[3] Borowski identifies certain considerations a court may take into account in deciding whether to hear and decide a moot appeal. The first is whether an adversarial context still exists in the litigation. As indicated, the respondents say they have no interest in the appeal. The Minister relies on the fact that two persons who have filed applications to seek judicial review in the Trial Division have sought and were granted intervener status on this motion to dismiss for mootness. It was also argued that additional persons could be expected to seek intervention status in the appeal.

[4] It is true that an adversarial context may exist where interveners are prepared to take over the litigation for one of the parties (see Borowski at page 360). The difficulty here is that there were no interveners before Kelen J. and there are none presently in the appeal. The interveners before the Court today have limited their intervention to this motion only. It is one thing for interveners who have participated throughout and whose circumstances are similar to those of the respondent, or perhaps, public interest or jurisprudential interveners, to take over the carriage of the litigation. It is another for interveners who feel obligated to intervene at the appeal stage because they fear the outcome of an appeal may adversely affect their personal interests to take over the litigation from disinterested respondents. In our view, this is an unsatisfactory basis upon which to create an adversarial context.

[5] Because the respondents have no interest in the appeal, it is the potential interveners who will have the carriage of the litigation on behalf of the respondents. However, the potential interveners' cases are based on different facts than the respondents' cases. Potential interveners may, therefore, seek to adduce new evidence particular to them for purposes of the appeal. It is, of course, not the function of an appellate court to decide cases de novo.

[6] There may be an unwieldy number of interveners. The Court was told that in 78 proceedings in the Trial Division which are now being case managed, there are some 5,500 individuals represented.

[7] Finally, the question of intervention at this point is simply speculative. The two interveners before the Court today are interveners only on this motion to dismiss. While there are 78 proceedings in the Trial Division, we have no assurance of any applications to intervene should we decide to proceed with the appeal.

[8] A second Borowski consideration relates to judicial economy. We understand that the Minister is of the view that, if the Court decides the appeal, some important issues that affect the many other actions or applications to seek judicial review may be resolved, at least at this Court level. In this connection, we are told that the Minister has not agreed to be bound by the decision on appeal in the cases presently before the Trial Division in the event the appeal is dismissed. Apparently, counsel for the Minister in the Trial Division has taken the position that the entitlement to mandamus sought by some applicants in that Court is an individual matter related to the facts of each case.

[9] In addition, it is by no means certain that, in deciding the appeal, the Court will address the issues the Minister wants addressed; further, there also appear to be other issues that are not issues in the appeal that will be raised in the Trial Division.

[10] It is, therefore, not at all clear that a decision on this appeal would satisfy the objective of judicial economy.

[11] We recognize that the Minister is faced with potential double processing of permanent resident applications under the old and new immigration legislation that would be avoided if a number of legal issues were finally resolved by the Court. We also understand that there are additional costs to the Minister and delay to permanent resident applicants if double processing occurs. Neither prospect is desirable.

[12] However, it seems to us that proceeding with the appeal will create is own set of complications that will impede rather than expedite the resolution of the issues in the pending proceedings in the Trial Division. We are told that if the appeal proceeds, because it does not cover all of the issues raised in the proceedings in the Trial Division, it will be necessary for both the Minister and applicants or plaintiffs in the Trial Division to continue litigating in the Trial Division, while at the same time pursuing this appeal. Proceedings in the Trial Division are under the case management of Gibson J. We think it more efficacious for the Trial Division proceedings to be expedited to the extent reasonable.

[13] The motion to dismiss on the grounds of mootness will be granted and the appeal will be dismissed with costs of $3,000, inclusive of fees, disbursements and GST, to the respondents.

"Marshall Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-133-03

STYLE OF CAUSE: The Minister of Citizenship and Immigration

-vs-

Laurentiu Dragan

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: May 22, 2003

REASONS FOR JUDGMENT

OF THE COURT : (ROTHSTEIN, SEXTON and SHARLOW JJ.A.)

RENDERED FROM

THE BENCH BY: ROTHSTEIN J.A.

APPEARANCES:

Ms. Ursula Kaczmarczyk FOR THE APPELLANT

Mr. Kevin Lunney

Ms. Leena Jaakkimainen

Mr. Lorne Waldman FOR THE RESPONDENT

Mr. Adam Dodek FOR THE INTERVENER

SOLICITORS OF RECORD:

Mr. Morris Rosenberg FOR THE APPELLANT

Deputy Attorney General of Canada

Waldman & Associates FOR THE RESPONDENT

Toronto, Ontario

Borden Ladner Gervais FOR THE INTERVENER

Toronto, Ontario

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Canada (Minister of Citizenship and Immigration) v. Dragan, 2003 FCA 233

Citations2003 FCA 233

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2003 FCA 233