Docket: A-71-14
Citation: 2014 FCA 160
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CORAM:
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GAUTHIER J.A.
MAINVILLE J.A.
BOIVIN J.A.
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BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Appellant
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and
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VITALY SAVIN
ARTEM GARANIN
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
[1]
The Minister of Citizenship and Immigration is
appealing from a direction of a Federal Court judge, given on November 21,
2013, during the hearing of docket No. IMM-1975-13.
[2]
By order dated January 22, 2014, Justice Trudel
allowed the notice of appeal to be filed because the Minister’s argument
regarding the judge’s jurisdiction had sufficient merit, in light of the record
as it stood at that preliminary stage in the proceedings, that it was worth
being heard on the merits by this Court (Rock St-Laurent v. Canada (Minister
of Citizenship and Immigration), 2012 FCA 192; Canada (Solicitor General)
v. Subhaschandran, 2005 FCA 27 [Subhaschandran]).
[3]
The underlying application for judicial review
concerns a decision of the Immigration and Refugee Board that rejected the
claim for refugee protection of the respondents, two homosexuals alleging a
risk of persecution by reason of their sexual orientation should they be
removed to Russia, their country of origin.
[4]
The oral direction at issue in this appeal reads
as follows:
[translation]
The matter is adjourned. If the government
does not agree to concede the case, then both counsel will be in a situation
where the suggested timetable for the additional documents will be submitted to
the Court. Under the proposed timetable the applicant shall file a new
memorandum by April 1, 2014, and the respondent shall file a response by
May 1, 2014. Given the situation in the courtroom regarding the documents
in the record that did not show the entire situation following the developments
in the country in question, the case is adjourned until May 1, 2014 as regards
the documents to be received. In addition, a date will be fixed for the hearing
of the case, except if the government concedes so that the case is referred
back to the IRB for rehearing, which would result in the case being withdrawn
from the Court.
A joint letter is to be filed with the
Court, as requested by Justice Shore at the hearing on 21-11-2013, [translation] “in which it shall be
stated whether the government concedes with respect to referring the matter
back to the IRB, or on the contrary, that the parties will be filing additional
documents with a view to continuing the application for judicial review in
accordance with the terms set out in the oral direction”.
[5]
The appellant did not file an affidavit in
support of his arguments based entirely on the hearing transcript and on the
above text of the direction. The respondents, on the other hand, filed an
affidavit that explains what happened at the hearing, particularly during the
brief recess mentioned in the transcript.
[6]
The appellant interprets this direction as a
refusal by the judge to exercise his jurisdiction. On this point, the appellant
argues in particular that the judge refused to exercise his jurisdiction in
adjourning for several months, without valid reason, a case that he should have
disposed of without delay and in a summary way under paragraphs 74(b)
and (c) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 [IRPA].
[7]
Moreover, he appellant also submits that the
judge exceeded his jurisdiction in asking the parties to file additional
representations regarding developments in the situation of homosexuals in
Russia — that is, regarding events subsequent to the decision under judicial
review.
[8]
In response, the respondents present an entirely
different version of the facts, which is based on the way in which the hearing
was conducted according to the transcript, and on the affidavit of Didier
Leroux.
[9]
According to the respondents, the judge clearly
asked for additional representations well before the possibility of a settlement
was raised. In addition, it was the respondents who asked for a brief recess
before the end of their oral presentation and who then proposed to the
appellant a settlement of the case. It was after this proposal that the parties
asked the judge to adjourn the hearing for a week.
[10]
There is no question that the direction is
poorly worded. Among other things, it does not reflect the proceedings as
described in the transcript. And the language used, such as the word [translation] “concede”, is certainly unfortunate.
That being said, when the direction is read in its context and in the light of
the evidence before us, this is not enough to persuade us that the version of
the relevant facts put forward by the appellant is the correct one.
[11]
It should be noted that the appellant admitted
at the hearing before this Court that the judge did not put any pressure
whatsoever on the appellant to settle the case, contrary to what the appellant’s
written submissions suggest. This issue is therefore no longer before us. However,
it must be stated that a party should not make such allegations against a judge
without having serious grounds for doing so, which was not the case here.
[12]
The appellant had the burden of proving that this
Court has jurisdiction given the plain language of paragraph 72(2)(e)
of the IRPA, which prohibits appeals of interlocutory judgments, and of
paragraph 74(d) of the IRPA, which limits the right of appeal to
cases where the Federal Court has certified a question.
[13]
The appellant has not persuaded us that this is
a case that falls within the well-defined and very limited circumstances in
which this Court may nevertheless intervene.
[14]
This is not a situation analogous to that
described in the case law on which the appellant relies. In Subhaschandran,
the long adjournment ordered by the judge amounted to granting the remedy sought
— a stay — without having to exercise his jurisdiction. Such is not the case
here.
[15]
Furthermore, there is no evidence before us that
indicates that the parties objected before the judge to the timetable set for
filing additional submissions. In addition, we do not know whether the parties
and the judge were available to resume the hearing at an earlier date. All that
we know is that the parties had requested a one-week adjournment. The Court
cannot presume that the judge acted in bad faith, nor can it ascribe to him any
particular intent.
[16]
If the time limit fixed by the judge was too
long, the appellant certainly had the opportunity to ask him for a tighter
timetable after receiving instructions from his client regarding the settlement
proposed by the respondents. These are case management issues that cannot be
appealed.
[17]
Regarding the filing of additional
representations, the appellant could very well have included in such
representations the arguments that he seeks to advance before us, and he may
still do so. We cannot make any assumptions as to what the judge will
ultimately decide in this regard.
[18]
While the law on when new evidence can be
considered on judicial review is clear, the respondents argue, and they have in
fact served a notice of constitutional question in this regard, that this case
raises a new issue, in light of the amendments to the applicable statutory
regime. In their view, the judge should have considered these new facts so as
to avoid infringing their rights under section 7 of the Canadian Charter
of Rights and Freedoms. It is premature for us to deal with these issues.
The parties will have the opportunity to have a question in this regard
certified in due course, if need be. Therefore, in this case, absent such a
certified question, this Court simply does not have jurisdiction.
[19]
This appeal clearly delayed the progress of the
case before the Federal Court. In the circumstances, and to ensure that it is
dealt with as soon as possible, the matter will be referred to the office of
the Chief Justice of the Federal Court, who is to see to it that a new hearing
date is set as quickly as possible. It will be up to the Chief Justice to
decide whether, to that end, the hearing should continue before the judge or
should be taken over by another judge.
[20]
The appeal will therefore be dismissed for lack
of jurisdiction, with costs.
“Johanne Gauthier”
“Robert M. Mainville”
“Richard Boivin”
Certified true translation
Erich Klein
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