Docket: A-117-14
Citation: 2015 FCA 144
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CORAM:
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RYER J.A.
WEBB J.A.
RENNIE J.A.
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BETWEEN:
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DOUGLAS MICHAEL KEARNEY
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Appellant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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Heard at Toronto, Ontario, on June 15, 2015.
Judgment delivered from the Bench at Toronto, Ontario, on June 15,
2015.
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REASONS FOR JUDGMENT OF THE COURT BY:
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RYER
J.A.
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Docket: A-117-14
Citation:
2015 FCA 144
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CORAM:
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RYER J.A.
WEBB J.A.
RENNIE J.A.
|
|
BETWEEN:
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DOUGLAS MICHAEL KEARNEY
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Appellant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on June 15, 2015).
RYER J.A.
[1]
We are all of the view that the appeals in files
A-117-14, a decision of Boivin J. (as he then was) and A-320-14, a decision of
Gleason J. (collectively Boivin J. and Gleason J. are referred to as the “Federal
Court Judges”) are moot. The applications that were before the Federal Court Judges
in these appeals were for orders of mandamus to compel the Minister of
Citizenship and Immigration to process applications for permanent residence
under the federal Immigrant Investor Program (“IIP”) in the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, (“IRPA”) that had
not been processed as fast as the applicants desired.
[2]
The decision under appeal in A-320-14 was
rendered on June 23, 2014. Four days earlier, section 87.5 of the IRPA
came into force. Its effect was to terminate all of the applications of the
appellants in these appeals.
[3]
Before this Court, the Crown asserts that the
effect of section 87.5 of the IRPA is to render all of the appeals moot
on the basis that all of the applications have been terminated.
[4]
The leading case on mootness is Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342. At page 353 Justice Sopinka states:
The doctrine of mootness is an aspect of a
general policy or practice that a court may decline to decide a case which
raises merely a hypothetical or abstract question. The general principle
applies when the decision of the court will not have the effect of resolving
some controversy which affects or may affect the rights of the parties. If the
decision of the court will have no practical effect on such rights, the court
will decline to decide the case. This essential ingredient must be present not
only when the action or proceeding is commenced but at the time when the court
is called upon to reach a decision. Accordingly if, subsequent to the
initiation of the action or proceeding, events occur which affect the
relationship of the parties so that no present live controversy exists which
affects the rights of the parties, the case is said to be moot. The general policy
or practice is enforced in moot cases unless the court exercises its discretion
to depart from its policy or practice. The relevant factors relating to the
exercise of the court's discretion are discussed hereinafter.
[5]
In the present circumstances, the live controversy
was whether the Minister could be compelled by mandamus to process the
applications that were outstanding at the time that the mandamus
applications were made to, and heard by, the Federal Court Judges.
[6]
The enactment of section 87.5 terminated all of
the applications under the IIP. As a result, the issue of whether the Minister
could be forced to process these applications was no longer a live controversy.
[7]
The constitutional validity of section 87.5 of
the IRPA was not part of the controversy before either of the Federal
Court Judges. Neither was the question of whether an order of mandamus could
be granted, on some basis, to compel the Minister to process applications under
the IIP that had been terminated. We are not inclined to entertain these issues
as a matter of first instance on appeal.
[8]
Having concluded that the appeals are moot, we
are not inclined to exercise our discretion to hear them, as we believe that
doing so would have no practical effect.
[9]
For the foregoing reasons, we would dismiss the
appeals without costs. A copy of these reasons should be placed in the files in
both A-320-14 and A-117-14.
"C. Michael Ryer"
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