Li v. Canada (Minister of Citizenship and Immigration), 2004 FCA 267

Date: 20040723

Docket: A-31-04

Citation: 2004 FCA 267

PRESENT:      NOËL J.A.

BETWEEN:

                                                                     YI MEI LI

                                                                                                                                            Appellant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                       "Dealt with in writing without appearance of parties.

                                     Order delivered at Ottawa, Ontario, on July 23, 2004.

REASONS FOR ORDER BY:                                                                                            NOËL J.A.

Date: 20040723

Docket: A-31-04

Citation: 2004 FCA 267

PRESENT:      NOËL J.A.

BETWEEN:

                                                                     YI MEI LI

                                                                                                                                            Appellant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

NOËL J.A.

[1]                The Court is seized with applications for leave to intervene by the Canadian Council for Refugees (the Council) and by the Immigration and Refugee Board (the Board). The respondent resists both applications while the appellant consents to the application by the Board and takes no position with respect to the application brought by the Council.

[2]                I have come to the conclusion that neither the Board nor the Council ought to be granted leave.

[3]                The Board alleges that it has specialized knowledge that will assist the Court in determining the issue raised on appeal. For that purpose, the Board proposes to file a twenty-five page factum, adduce new evidence in the form of an affidavit by the Director General Reform and Strategic Directions of the Board, and make oral submissions on the merits of the appeal.

[4]                The Supreme Court of Canada has held that the role of an administrative tribunal whose decision is at issue before an appellate court, even where the right to appear is given by statute, is limited to an explanatory role with reference to the record before it and to making representations relating to jurisdiction:

It has been the policy in this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction. ...

Where the parent or authorizing statute is silent as to the role or status of the tribunal in appeal or review proceedings, this Court has confined the tribunal strictly to the issue of its jurisdiction to make the order in question. (Vide Central Broadcasting Company Ltd. v. Canada Labour Relations Board and International Brotherhood of Electrical Workers, Local Union No. 529 [[1977] 2 S.C.R. 112">[1977] 2 S.C.R. 112].). (emphasis added)

Northwestern Utilities Ltd. v. Edmonton, [1979] 1 S.C.R. 684">[1979] 1 S.C.R. 684 at 709-10.

[5]                The proposed factum filed by the Board shows that it intends to address the substantive issue raised in this appeal, namely, the applicable standard of proof under section 97 of the Immigration and Refugee Protection Act (IRPA) and to add fresh evidence with respect to this point. As was held by this Court in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1998] F.C.J. No. 1141 (F.C.A.), it is inappropriate for an intervening administrative tribunal to make arguments that go to the heart of the litigation stemming from its decision:

It is clear to me that, in paragraphs 69 to 99 and paragraphs 101 and 102 of its memorandum, the intervenor, the Canadian Human Rights Commission, develops arguments defending the correctness of its interpretation of section 11 of the Canadian Human Rights Act. Such interpretation raises questions that are at the heart of the litigation and, if they may be said to go to jurisdiction, they cannot be defined as being questions relating to its "jurisdiction stricto sensu," within the meaning I gave to the expression in my order of May 22, 1998 which was the one given by Beetz J. in Union des employés de service, Local 298 v. Bibeault, [1988] 2 S.C.R. 1048. It follows that, in view of the limited intervenor status granted to the Commission by my order, which, without departing from the principles established by the case law following the leading decision of the Supreme Court in [1979] 1 S.C.R. 684">Northwestern Utilities Ltd. et al v. Edmonton, [1979] 1 S.C.R. 684, wanted, because of the circumstances, to be restrictive enough to keep the tribunal out of the adversarial aspects of the proceedings, those paragraphs should not have been included in the intervenor's memorandum and should be struck out.

[6]                In this instance, the proposed factum is directed exclusively at the substantive issue which arises in the appeal. It does not deal in any way with the Board's jurisdiction to hear and dispose of claims pursuant to section 97 of IRPA. The Board in framing its application seems to have overlooked the limited scope of intervention assigned by the case law to a tribunal in a proceeding relating to its own decision.

[7]                The other proposed intervener has also failed to satisfy the requirements set out in rule 109 of the Federal Court Rules, 1988, and by the case law (C.U.P.E. v. Canadian Airlines International Ltd., [2001] F.C.J. No. 1110, 2001 F.C.A. 233). While the Council has an interest in the outcome of the appeal, it has not demonstrated that its intervention would add anything to the debate.

[8]                The international human rights law perspective which the Council proposes to bring to the attention of the Court is being canvassed by the parties to the litigation and the position which the Council proposes to advance (i.e. that a lower standard of proof would better conform to international human rights instruments, international jurisprudence as well as the wording of paragraph 97(1)(b) of the IRPA) is adequately defended by the appellant.

[9]                In the end, what the Council proposes to do is support the position of the appellant by repeating in its own words the arguments that the appellant has already placed before the Court. That type of contribution, if it can be labelled as such, is incompatible with a proper intervention.

[10]            Both applications will accordingly be dismissed.

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:A-31-04

STYLE OF CAUSE:YI MEI LI AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:Noël J.A.

DATED:July 23, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: