Date: 20241120

Docket: IMM-11320-23

Citation: 2024 FC 1851

Ottawa, Ontario, November 20, 2024

PRESENT: The Honourable Madam Justice Kane

BETWEEN:

MEKALAN VIGNESWARABALAN

Applicant

and

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

Respondent

JUDGMENT AND REASONS

[1] The Applicant, Mekalan Vigneswarabalan, seeks judicial review of the August 24, 2023, decision of the Immigration Appeal Division [IAD]. The IAD found that it lacked jurisdiction to reopen Mr. Vigneswarabalan’s appeal of the Deportation Order (also referred to as a removal order) rendered by the Immigration Division [ID]. The IAD found that its appeal decision, dated December 9, 2021, which granted Mr. Vigneswarabalan a stay of the ID’s Deportation Order was cancelled by operation of law and the appeal was terminated due to Mr. Vigneswarabalan’s subsequent criminal conviction and in accordance with subsection 68(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. The IAD concluded that it did not retain the jurisdiction to reopen Mr. Vigneswarabalan’s appeal pursuant to section 71 for an alleged breach of natural justice.

[2] Mr. Vigneswarabalan disputes the IAD’s interpretation of section 71 of the Act, which permits the IAD to reopen an appeal where the IAD is “satisfied that it failed to observe a principle of natural justice” and subsection 68(4) of the Act, which cancels a stay of deportation where the subject of the stay is convicted of an offence referred to in subsection 36(1) of the Act during the term of the stay of deportation. He argues that the IAD conflated discretion with jurisdiction and fettered its discretion by declining jurisdiction to reopen the appeal.

[3] For the reasons that follow, the application for judicial review is granted. The IAD erred in finding that it had no jurisdiction to consider whether a breach of natural justice had been established, and if so, to reopen the appeal. Where a breach of natural justice is established, there must be a remedy for the breach.

I. Background

[4] Mr. Vigneswarabalan is a citizen of Sri Lanka. He arrived in Canada in 2004, at the age of 10, as a permanent resident.

[5] Mr. Vigneswarabalan was convicted twice of one count of assault with a weapon contrary to subsection 267(1) of the Criminal Code, RSC 1985, c C-46 [the Code] in December 2016 and subsequently, in September 2018.

[6] Due to the criminal convictions, the ID held an admissibility hearing. On January 15, 2021, the ID issued a Deportation Order to Mr. Vigneswarabalan. He appealed the Deportation Order to the IAD. Mr. Vigneswarabalan was represented by counsel.

[7] Five months later, on May 18, 2021, Mr. Vigneswarabalan was charged with impaired driving. He retained the same counsel to represent him at his criminal proceeding.

[8] On December 9, 2021, the IAD heard Mr. Vigneswarabalan’s appeal and granted him a two-year stay of his Deportation Order pursuant to paragraph 67(1)(c) of the Act on terms and conditions. (In other words, he would not be removed from Canada if he complied with certain conditions and his appeal of the Deportation Order would be considered again at the end of the two-year period). At the time of the IAD hearing, Mr. Vigneswarabalan had not yet been convicted of the impaired driving charge, but he advised the IAD of his intention to plead guilty.

[9] On July 25, 2022, eight months after the IAD granted Mr. Vigneswarabalan a two-year stay of his deportation, he entered a guilty plea and was convicted of the impaired driving offence.

[10] On September 28, 2022, Mr. Vigneswarabalan was notified that the IAD had cancelled the stay of his Deportation Order and that his appeal (i.e., of the ID decision, which would otherwise have been considered again by the IAD in two years’ time) was terminated in accordance with subsection 68(4) of the Act due to his criminal conviction. As a result, his Deportation Order could be executed.

[11] Mr. Vigneswarabalan’s counsel advised him to seek a Pre-Removal Risk Assessment [PRRA]. On March 29, 2023, the PRRA was refused.

[12] Mr. Vigneswarabalan retained new counsel and applied to the IAD to reopen the IAD’s December 2021 appeal decision of the ID’s Deportation Order and to restore the IAD’s order staying his deportation. He argued that inadequate legal representation by his previous counsel breached principles of natural justice and that the IAD’s December 2021 decision was reached as a result of this breach. He also noted that the IAD found him to be remorseful and his outstanding charges to be minor, and noted that he was taking steps to ensure he would not reoffend.

[13] The Minister opposed the application to reopen the appeal, noting among other things, that: there was no response from the previous counsel regarding the allegation of incompetence; the objective evidence was that Mr. Vigneswarabalan wanted to defer his plea to retain his driver’s licence for work purposes; the IAD’s December 2021 decision clearly stated the consequences of a subsequent conviction; despite any claim of inadequate legal representation, there was no breach of natural justice given that Mr. Vigneswarabalan was clearly aware of the consequences before he entered his guilty plea; it is simply speculation that the IAD would have granted the stay regardless of the subsequent conviction, noting that the stay was imposed with conditions (i.e. the appeal was not allowed but rather would be considered again in two years’ time to assess whether the terms and conditions were met and whether the appeal should be allowed, dismissed or a further stay ordered); all parties were aware of the pending charge at the time the stay was granted; reopening the appeal would by-pass the consequences of subsection 68(4); and, the IAD does not have jurisdiction to ignore subsection 68(4).

[14] Mr. Vigneswarabalan provided additional submissions in response to the Minister. He acknowledged that he was clearly caught by subsection 68(4) of the Act.

[15] Mr. Vigneswarabalan again argued that his application to reopen the Appeal was to remedy a breach of natural justice caused by the incompetence of his previous counsel. He cited the jurisprudence that establishes the test to be met, noting among other things: that previous counsel advised him to plead guilty to the impaired driving charge but did not advise him that the timing of entering his plea would have implications for his stay of deportation; previous counsel acknowledged their errors; he was prejudiced by the cancellation of his stay and termination of his appeal; but for the errors made by previous counsel, there was a reasonable probability that his stay would not have been cancelled (i.e., subsection 68(4) would not have applied as he would have been convicted before the IAD considered his appeal); and, that the IAD would have granted him a stay of deportation despite his conviction. Mr. Vigneswarabalan further submitted that the “Important Warning” on the December 2021 IAD stay order was not easily understood by a lay man and not sufficient notice of the consequences, and too late for him to avoid the consequences of subsection 68(4).

[16] Mr. Vigneswarabalan acknowledged that section 71 permits the IAD to reopen an appeal only when there is a breach of natural justice, but argued that there are no other restrictions and that section 71 permits the IAD to reopen an appeal even when the appeal has been terminated by operation of law due to subsection 68(4). He argued that Parliament did not intend that subsection 68(4) could remove the IAD’s jurisdiction or discretion to remedy a breach of natural justice.

[17] On August 24, 2023, the IAD rendered its decision refusing to reopen Mr. Vigneswarabalan’s appeal and reconsider whether his stay of the Deportation Order should be granted (despite his subsequent conviction). The IAD’s August 24, 2023, decision is the subject of this Application for Judicial Review.

[18] Mr. Vigneswarabalan complied with his Deportation Order and departed Canada on August 29, 2023.

II. The Decision under Review

[19] The IAD set out the context, noting that Mr. Vigneswarabalan’s “appeal was terminated on the basis of the subsequent criminal conviction during the term of the stay”. The IAD acknowledged the submissions of the Respondent and of the current counsel for Mr. Vigneswarabalan, as described above.

[20] The IAD accepted that a breach of procedural fairness may result from incompetent representation if a miscarriage of justice results. However, the IAD did not make any finding that there had been a breach of natural justice due to the incompetence of counsel. (The IAD interchangeably refers to a breach of natural justice and procedural fairness, meaning the same thing.)

[21] The IAD noted that there were two decisions relevant to the application to reopen the appeal of the ID’s Deportation Order: the December 2021 decision and the September 2022 decision.

[22] The IAD found that the alleged breach of natural justice pertained only to the December 2021 decision, which granted the stay of deportation. The IAD acknowledged that it would have had jurisdiction to reopen its December 2021 decision if that decision had been reached based on a breach of the principles of natural justice. The IAD found, however, that Mr. Vigneswarabalan’s application to reopen the appeal would have had to have been made before his impaired driving conviction and it was not. The IAD noted that subsection 68(3) would permit the IAD to reconsider an appeal on application or on its own initiative; however, the impaired driving conviction “triggered” subsection 68(4), which cancelled the stay and terminated the appeal of the Deportation Order.

[23] The IAD noted that it had convened the September 2022 hearing to determine whether the requirements of subsection 68(4) were met and found they were met. As a result, Mr. Vigneswarabalan’s appeal of the ID’s Deportation Order was terminated. The IAD noted that the “clear intention of Parliament was to remove jurisdiction from the IAD”, and found that as a result, it did not have jurisdiction to order that the appeal continue or that the stay of deportation be reconsidered. The IAD noted that this was not a discretionary decision, but rather was required upon determining that subsection 68(4) applied.

[24] The IAD found that Mr. Vigneswarabalan’s challenge to the September 2022 decision that cancelled the stay and terminated the appeal had “no merit because the impaired driving conviction removed jurisdiction from the IAD to reinstate the stay and reopen the appeal by statute. This decision also removed jurisdiction from the IAD to revisit the December 2021 decision to grant the stay because the appeal has been terminated”

[25] The IAD further found that even if its September 2022 decision had been tainted by the December 2021 decision “in which there was a breach of natural justice”, reopening the appeal would lead to the same result; the IAD would redetermine the appeal on the basis of the same evidence, including the subsequent conviction during the term of the stay of the Deportation Order. The IAD found that because the criteria for subsection 68(4) were established, the IAD would still be required to cancel the stay and terminate the “reopened removal order appeal”.

[26] The IAD agreed that section 71 “does not deprive the IAD of jurisdiction to reopen any decision if principles of natural justice were violated” but concluded that on the particular facts, reopening the appeal would serve no useful purpose.

[27] The IAD then found that it was unnecessary to determine whether Mr. Vigneswarabalan’s previous counsel’s conduct met the high standard for establishing a breach of natural justice because, in order to do so, the IAD would need to reopen an appeal which “has already been terminated without legal authority”.

[28] In conclusion, the IAD noted that “although a potential breach of natural justice may have affected the December 2021 proceedings and decision”, Mr. Vigneswarabalan was convicted of an offence during the term of the stay of his Deportation Order, which triggered the consequences of subsection 68(4). The IAD again noted that any remedy from the IAD arising from an alleged breach of natural justice would have to have been pursued before the conviction.

[29] To summarize, the IAD made three findings:

• The IAD found that it did not have jurisdiction to reopen the appeal pursuant to section 71 because the IAD lost jurisdiction over the appeal as a result of subsection 68(4), which cancelled the stay and terminated the appeal by operation of law.

• The IAD found that even if it could reopen the appeal for a breach of natural justice because a “potential breach of natural justice may have affected the December 2021 proceedings and decision”, there would be no point to do so because the IAD would still be required to apply subsection 68(4) given the subsequent conviction.

• The IAD found that it was not necessary to determine whether there was a breach of natural justice caused by the alleged incompetence of the previous counsel.

III. The Statutory Provisions

IV. The Applicant’s Submissions

[30] Mr. Vigneswarabalan submits that the sole issue on this Application is whether the IAD fettered its discretion in declining to apply section 71 of the Act to reopen the December 2021 appeal of his Deportation Order. He submits that by fettering its discretion, the IAD’s decision is not reasonable.

[31] Mr. Vigneswarabalan argues that the IAD erred in finding that because his appeal was terminated by operation of law due to subsection 68(4) it lacked jurisdiction to reopen the appeal pursuant to section 71.

[32] Mr. Vigneswarabalan makes many of the same arguments that he made to the IAD as noted above.

[33] Mr. Vigneswarabalan agrees that section 71 permits the IAD to reopen an appeal only where there has been a breach of natural justice. He argues that the IAD failed to consider that the conduct of his previous counsel clearly amounted to a breach of natural justice that should be attributed to the IAD, and this vitiates the IAD’s December 2021 decision that granted the stay of deportation for a two-year period.

[34] The thrust of Mr. Vigneswarabalan’s argument is that, but for the bad advice or lack of advice, he would have entered a guilty plea and been convicted of impaired driving before December 2021 and the IAD would have considered this additional conviction when determining whether to grant him a stay of removal. He submits that the IAD would have granted the stay regardless, given the IAD’s comments that this was a minor charge, that he was on the right path and that humanitarian and compassionate factors were present to overcome the impact of his reportable offences. If this had occurred, his post-stay conviction would not have resulted in the cancellation of his stay of removal in accordance with subsection 68(4) of the Act.

[35] Mr. Vigneswarabalan notes that his previous counsel acknowledged his inadequate representation due to illness and lack of familiarity with the Act and the implications of a subsequent conviction. Mr. Vigneswarabalan adds that his previous counsel mistakenly thought that disclosing the outstanding criminal charge and Mr. Vigneswarabalan’s intention to plead guilty would be sufficient to avoid the consequences of subsection 68(4).

[36] Mr. Vigneswarabalan acknowledges that he was also reluctant to enter a guilty plea earlier as this would have required him to surrender his driver’s licence.

[37] Mr. Vigneswarabalan disputes the IAD’s finding that Parliament clearly intended to remove jurisdiction from the IAD where subsection 68(4) was triggered. He argues that subsection 68(4) does not state that the termination of an appeal removes the jurisdiction of the IAD, noting that this would mean that no administrative body has jurisdiction. He adds that the Act does not define what it means for an appeal to be “terminated”.

[38] Mr. Vigneswarabalan submits that the IAD has both the jurisdiction and the discretion to reopen an appeal pursuant to section 71 even where subsection 68(4) applies.

[39] Mr. Vigneswarabalan also argues that the IAD’s second finding—that there would be no point to reopen the appeal because the IAD would be required to make the same decision to terminate the appeal due to subsection 68(4)—renders the IAD’s authority to reopen an appeal to remedy a breach of natural justice meaningless.

V. The Respondent’s Submissions

[40] The Respondent notes that it is not disputed that Mr. Vigneswarabalan was convicted of an offence of serious criminality subsequent to his stay being granted and, as a result, he falls within subsection 68(4) of the Act. The Respondent submits that subsection 68(4) expressly limits the IAD’s jurisdiction by automatically cancelling an applicant’s stay of removal by operation of law and terminating the appeal.

[41] The Respondent notes that it is also not disputed that section 71 of the Act permits the IAD to reopen an appeal only if the IAD is satisfied that it failed to observe a principle of natural justice.

[42] The Respondent submits that given that Mr. Vigneswarabalan’s stay was cancelled by operation of law and his appeal was terminated pursuant to subsection 68(4) of the Act, it was open to the IAD to find that it did not have the jurisdiction to reopen the December 2021 appeal decision pursuant to section 71.

[43] The Respondent points to this Court’s jurisprudence that has found that absent an explicit condition at the time of an applicant’s initial stay, subsequent convictions for pre-existing charges are caught by subsection 68(4), which cancels the stay and terminates the appeal (Caraan v Canada (Public Safety and Emergency Preparedness), 2013 FC 360 at paras 44-48 [Caraan]; Canada (Citizenship and Immigration) v Bui, 2012 FC 457 at paras 31-53 [Bui]).

[44] The Respondent notes that although the IAD was aware of Mr. Vigneswarabalan’s impaired driving charge at the time the IAD granted the stay of the Deportation Order, the IAD did not include a condition to address the possible post-stay conviction that could result for the pre-stay charge.

[45] The Respondent submits that Mr. Vigneswarabalan merely speculates that the IAD would have granted him the stay regardless of his additional conviction or that he would not again face the consequences of subsection 68(4) if the IAD’s decision is set aside and redetermined.

[46] The Respondent submits that the IAD also reasonably concluded that even if there were a breach of natural justice, the outcome would be the same on reconsideration. The Respondent submits that Mr. Vigneswarabalan would likely be again caught by subsection 68(4) of the Act.

VI. The Issues

[47] As noted, Mr. Vigneswarabalan identifies one issue; whether the IAD fettered its discretion by finding that it did not have jurisdiction to reopen the appeal.

[48] The more general issue is whether the IAD’s decision to not reopen Mr. Vigneswarabalan’s appeal is reasonable. This entails consideration of the reasonableness of the IAD’s three findings:

1. Whether the IAD reasonably found that it could not reopen the appeal—even if a breach of natural justice were established—because the requirements of subsection 68(4) were met, which cancelled the stay of deportation, terminated the appeal and removed jurisdiction from the IAD.

2. Whether the IAD reasonably found that even if it could reopen the appeal for a breach of natural justice there would be no point to do so because the IAD would still be required to apply subsection 68(4) given the subsequent conviction.

3. Whether the IAD reasonably found that it was unnecessary to determine whether the alleged incompetence of counsel amounted to a breach of natural justice.

VII. The Standard of Review

[49] In Mason v Canada (Citizenship and Immigration), 2023 SCC 21, at para 38, [Mason], the Supreme Court of Canada affirmed that the presumptive standard of review for administrative decisions is reasonableness, including when the interpretation of a statutory provision is at issue as in the present case. No established exception to the presumption of review for reasonableness applies in this case (Mason at paras 39-47).

[50] Whether the decision is reasonable is reviewed in accordance with the principles set out in Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 [Vavilov]. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at paras 85, 102, 105–107). The court does not assess the reasons against a standard of perfection (Vavilov at para 91). A decision should not be set aside unless it contains “sufficiently serious shortcomings ... such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100).

[51] Where allegations of a breach of procedural fairness are made against the decision‑maker, the court must determine whether the procedure followed is fair having regard to all of the circumstances. The court must ask “with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed” (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54). Where a breach of procedural fairness is found, no deference is owed to the decision‑maker.

[52] In the present case, the allegations of a breach of procedural fairness or natural justice relate to the conduct of counsel, not of the IAD. It is well-established that a breach of natural justice or procedural fairness may arise from representation by incompetent counsel; however, the threshold to establish incompetence constituting such a breach is high.

[53] In Zakeri v Canada, 2023 FC 421 [Zakeri], a judicial review of a decision of the Refugee Appeal Division, Justice Gascon explained at para 19:

[19] The tripartite test to establish a procedural fairness violation resulting from incompetent representation requires an applicant to demonstrate the following: i) prior counsel’s acts or omissions constituted incompetence; ii) a miscarriage of justice resulted, in the sense that, but for the alleged conduct, there is a reasonable probability that the result would have been different; and iii) the prior counsel was given a reasonable opportunity to respond (Rendon Segovia v Canada (Citizenship and Immigration), 2020 FC 99 [Rendon Segovia] at para 22; Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at para 11; Pathinathar v Canada (Citizenship and Immigration), 2013 FC 1225 at para 25; Nagy v Canada (Citizenship and Immigration), 2013 FC 640 at para 25).

[54] In Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 [Satkunanathan], in the context of a judicial review of the IAD’s decision to dismiss the applicant’s appeal (not an application to reopen pursuant to section 71), Justice Pamel considered whether the applicant was denied procedural fairness in her appeal as a result of negligent or incompetent representation, such that judicial review of the IAD decision was warranted.

[55] Justice Pamel cited the two-part test in Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 36‑38, noting at para 36:

First, an applicant must establish that his/her previous counsel’s acts or omissions constituted incompetence. Second, the acts or omissions must have resulted in a miscarriage of justice.

[56] Justice Pamel found on the facts of the case that the former counsel did not have sufficient knowledge to advance the applicant’s case and that “it is because of such shortcomings on the part of Former Counsel that the Applicant was deprived of a full and complete hearing before the IAD (Mathon v Canada (Minister of Employment and Immigration), [1988] FCJ No 707 (QL))”.

VIII. The Jurisprudence – What is Settled and What is Not Settled

A. Section 71

[57] In Nazifpour v Canada (Minister of Citizenship and Immigration), 2007 FCA 35 [Nazifpour], Justice Evans considered section 71 following amendments enacted in 2001. Justice Evans considered the legislative history, the principles of statutory interpretation and the intention of the legislator and concluded, at para 71, that the effect of section 71 was to “restrict the IAD’s right to reopen to cases [to] where there had been of breach of a principle of natural justice.”

[58] Justice Evans responded to the certified question, at para 83, agreeing that:

[…] section 71 of IRPA extinguish[es] the continuing “equitable jurisdiction” of the IAD to reopen an appeal against a deportation order, except where the IAD has failed to observe a principle of natural justice[.]” [Emphasis added.]

[59] Section 71 would apply where an appeal has been dismissed, resulting in a removal or deportation order being active, but where deportation has not been executed and the person remains in Canada, or where a stay of removal has been granted for a period of time, but due to the breach of a condition, the removal order could be executed. There would appear to be no need for the IAD to “reopen” an appeal in any other context, given that judicial review could be sought for a decision to grant or dismiss an appeal. Mr. Vigneswarabalan falls within the scope of section 71; his Deportation Order was in effect but he had not yet left Canada at the time he sought to reopen his appeal of his Deportation Order.

[60] There is no longer any dispute that section 71 permits the IAD to reopen an appeal only for a breach of natural justice; however, the wording, “if it is satisfied that it failed to observe a principle of natural justice”, differs from other provisions in the Act and in the Immigration and Refugee Board rules that address a breach of natural justice. For example, paragraph 67(1)(b) of the Act refers to where “a principle of natural justice has not been observed”, and Rule 62(6) of the Refugee Protection Division Rules, SOR/2012-256 provides that the Refugee Protection Division “must not allow the application [to reopen the claim] unless it is established that there was a failure to observe a principle of natural justice.” A strict interpretation of section 71 suggests that the IAD may reopen an appeal only where the IAD has failed to observe a principle of natural justice. The other provisions are broader and would address any breach of natural justice.

[61] However, despite the wording of section 71, decisions of the IAD and of this Court have accepted that where the incompetence of counsel meets the high threshold to constitute a breach of natural justice, the failure “to observe a principle of natural justice” is attributed to the IAD. Where the alleged breach of natural justice does not arise from the incompetence of counsel, the Court has interpreted section 71 as limited to a breach by the IAD itself.

[62] In Kaur v Canada (Citizenship and Immigration), 2014 FC 505 [Kaur], the IAD had found that the IAD had jurisdiction to reopen an appeal on the basis of the alleged incompetence of counsel, but ultimately found that relief was not warranted because the applicant was not credible and the outcome of the appeal would not have been any different regardless of any such incompetence by counsel.

[63] On judicial review, Justice Noël addressed the applicant’s submission that the IAD had denied relief based on finding that the IAD had to be the cause of the breach of natural justice. Justice Noël noted that the IAD made no such finding, but addressed that issue. Justice Noël accepted that section 71 applies where there has been a breach of natural justice, noting at para 19, “[a]t the heart of the IAD’s decision to reopen an appeal is the determination of whether or not a breach of natural justice has occurred” [Emphasis added].

[64] With respect to whether the incompetence of counsel could call for a reopening of an appeal pursuant to section 71, Justice Noël stated at para 23:

[…] In cases where counsel incompetence leads to a breach of procedural [fairness] which changes the result of the claim, the IAD’s intervention in reopening the appeal pursuant to section 71 of the IRPA would be warranted.

[65] Justice Noël emphasized that the onus of establishing that the incompetence of counsel resulted in a breach of procedural fairness rests on the applicant and the well-established three‑prong test must be met.

[66] In Canada (Citizenship and Immigration) v Lui, 2021 FC 306 [Lui], Justice Walker found several errors in the decision of the IAD, which refused to reopen the applicant’s appeal of her removal order. Justice Walker cited Kaur and found that the IAD failed to cite or apply the test in section 71. Justice Walker stated at para 25:

Section 71 requires the IAD to make a finding that there was a breach of a principle of natural justice in the course of an applicant’s appeal proceedings. The breach must have been caused by the IAD itself or, for purposes of this case, by the negligence or incompetence of counsel that rises to the level of a breach of natural justice. As stated above, the IAD made no such finding in the Decision. The IAD was also required to consider the three Yang factors and did not. I find that the IAD’s analysis is not justified against the statutory and jurisprudential scheme within which it was required to exercise its discretion.

[67] As noted above, where the alleged breach of natural justice is not based on allegations of the incompetence of counsel, the Court has interpreted section 71 as requiring that the breach must be that of the IAD.

[68] In Canada (Public Safety and Emergency Preparedness) v Philistin, 2014 FC 762, Justice Roy found, at paras 24-25, that the basis of the alleged breach of natural justice was not clear. Justice Roy noted, at para 26, that Mr. Philistin was represented at the IAD and that there was no reason to “cause even a suspicion that Mr. Philistin did not have adequate representation”.

[69] With respect to the interpretation of section 71, Justice Roy stated:

[30] The respondent is also faced with jurisprudence from this Court stating that the failure to observe a principle of natural justice comes from the IAD itself. Accordingly, not only does new evidence not give rise to a remedy under section 71 of the Act (Nazifpour v Canada (Minister of Citizenship and Immigration), 2007 FCA 35, [2007] 4 FCR 515 [Nazifpour]) but the failure to observe a principle of natural justice must come from the IAD itself, which will then want to correct the error (Canada (Citizenship and Immigration) v Ishmael, 2007 FC 212; Canada (Citizenship and Immigration) v Kang, 2009 FC 941; Wilks v Canada Immigration and Refugee Board, 2009 FC 306). This approach seems to flow naturally from the English version of section 71, which speaks in terms of “may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice”. The failure to observe must be the IAD’s. [Emphasis added.]

[70] In Wilks v Canada (Citizenship and Immigration), 2009 FC 306, the Court noted at para 38:

The wording of section. 71 of IRPA, “[T]he Immigration Appeal Division … may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice” (emphasis added), makes it clear that the breach must be the fault of the IAD as an entity and not merely to the decision maker who determines the appeal to be abandoned.

[First emphasis in original; second emphasis added.]

[71] In Canada (Citizenship and Immigration) v Kang, 2009 FC 941 at para 29, the Court also found that section 71 applies where the breach of natural justice is that of the IAD:

[29] The enabling statutory provision and the jurisprudence of this Court makes it quite clear that in order for an appeal to be reopened, the IAD must be satisfied that it has itself failed to observe a principal of natural justice (Ye v. Canada (Minister of Citizenship and Immigration), 2004 FC 964, 254 F.T.R. 238; Nazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35, [2007] 4 F.C.R. 515; Canada (Minister of Citizenship and Immigration) v. Ishmael, 2007 FC 212, 309 F.T.R. 147; Wilks v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 306, [2009] F.C.J. No. 354 (QL) (Wilks)) […]

B. Subsection 68(4)

[72] In Ferri v Canada (Citizenship and Immigration), 2005 FC 1580 [Ferri], the applicant sought judicial review of the IAD’s decision that refused to consider a constitutional challenge because the IAD found it had lost jurisdiction pursuant to subsection 68(4) due to the applicant’s subsequent conviction.

[73] Justice Mactavish found, at paras 39-41, that subsection 68(4) limits the IAD’s jurisdiction to establishing whether the criteria of subsection 68(4) have been met, and stated at para 41:

If the answer to each of these questions is in the affirmative, as is admittedly the case here, then the section is clear: the IAD loses jurisdiction over the individual, with the stay being cancelled and the appeal being terminated by operation of law. [Emphasis added.]

C. Exceptions to subsection 68(4)

[74] In Canada (Minister of Citizenship and Immigration) v Malarski, 2006 FC 1007 [Malarski], the IAD granted the applicant a three-year stay of his deportation. The stay order included a provision exempting the applicant’s anticipated conviction on outstanding charges to ensure that the conviction would not result in the breach of the stay order [the Exception]. However, following the applicant’s conviction for these offences, the Minister notified the applicant that his stay had been cancelled and his deportation order was in force. The IAD declined to cancel the stay noting the Exception and commenting that the Minister’s approach was an abuse of process.

[75] On judicial review, Justice Simpson noted that, but for the Exception, the post-stay conviction would result in a breach of the stay; the stay would be cancelled by operation of law pursuant to subsection 68(4) and the appeal terminated. Justice Simpson found that the IAD did not err in finding that the stay had not been breached because the Exception applied, noting at para 18:

The Cancellation refers only to the Conviction and, in view of the Exception, the Conviction did not breach the Second Condition of the Stay. Accordingly, subsection 68(4) of the IRPA did not, in fact, cancel the Stay by operation of law based on a breach of the Stay. For this reason, the Cancellation is of no force and effect.

[76] In other words, the Court gave effect to an exception for the subsequent conviction of the outstanding charge that was included as a condition of the stay order, which avoided the application of subsection 68(4).

[77] In Bui, the IAD had granted a three-year stay of the removal order issued by the ID subject to several conditions. Three years later, in April 2011, the IAD requested written submissions about Mr. Bui’s compliance with the conditions of his stay. On May 27, 2011, counsel for Mr. Bui responded that Mr. Bui had complied with the conditions, but had recently been sentenced for an offence he had committed in May 2006 (three years before his stay of removal was granted). The Canada Border Services Agency [CBSA] notified Mr. Bui that his stay was cancelled by operation of subsection 68(4) of the Act. However, the IAD refused to cancel the stay finding that the new offence must be committed after the stay is granted to fall within subsection 68(4).

[78] On judicial review, Justice Martineau found that the IAD misinterpreted the plain meaning of subsection 68(4) which states “convicted of another offence” [emphasis added] and misinterpreted the intention of Parliament. He noted that the criteria for subsection 68(4) to apply as set out in Ferri were established. Justice Martineau concluded, at paras 48-50, that for the purpose of subsection 68(4) the date of the commission of the offence is not relevant, but rather, the date of conviction.

[79] Justice Martineau acknowledged Mr. Bui’s submissions regarding fairness, noting that the IAD and Minister were aware of the pending criminal charges at the time the IAD granted the stay in 2008, but confirmed that subsection 68(4) applied to the post-stay conviction of a pre‑stay charge (Bui at paras 39-45).

[80] In Caraan, the ID issued a deportation order to the applicant, who was found inadmissible to Canada. In response to the applicant’s appeal to the IAD, the respondent provided a disclosure package of information to the applicant and the IAD, which included the background regarding the applicant’s convictions underlying the inadmissibility report and noted that there was an outstanding criminal charge. In April 2009, the IAD stayed the applicant’s deportation for a two-year period based on joint submissions. The applicant was not represented by counsel.

[81] In 2010, the applicant attended at the local police to obtain a background check and was advised of an outstanding arrest warrant for another criminal offence (uttering a forged document) dating back to September 2006. In December 2010, the applicant was convicted of the 2006 offence.

[82] The IAD cancelled the applicant’s stay pursuant to subsection 68(4) given that the conviction occurred during the two-year period of his stay of deportation. The IAD noted that there was no condition included in the IAD’s 2009 stay order to exclude the application of subsection 68(4).

[83] The applicant alleged an abuse of process and breach of natural justice because the respondent and the IAD had not advised him of the consequence of a conviction for the outstanding charge. The applicant also argued that the IAD erred in not finding an implicit condition in the stay order excluding the application of subsection 68(4).

[84] The applicant argued that even though he signed an agreement for the stay order that clearly indicated his stay would be cancelled if he were convicted of another offence, the duty of fairness required the respondent to inform him of the implications, given that he was not legally represented. He claimed that if he had known the consequences, he would have sought an adjournment of his appeal to the IAD and dealt with his other charge before the appeal was heard.

[85] The Court concluded that there was no abuse of process or breach of natural justice. The Court found that, although the respondent may have known that subsection 68(4) would be triggered, the applicant was clearly made aware of this outcome given that the agreement he signed was unambiguous (Caraan at para 41). The Court also noted that although the charge was outstanding at the time the IAD granted the stay, it was not known whether the applicant would plead guilty or would be convicted (Caraan at para 43).

[86] The Court, at para 44, also found that there was nothing in the agreement for the stay order to support the applicant’s contention that there was an implied condition to exclude the application of subsection 68(4) for a post-stay conviction on the outstanding charge.

[87] With respect to the IAD’s interpretation of subsection 68(4) and the relevant jurisprudence, the Court stated at paras 46-47:

[46] The IAD correctly concluded that Malarski, above, supported the principle that, but for an explicit exclusionary term in the stay order, post-stay convictions for pre-stay charges trigger the operation of subsection 68(4).

[47] The Court finds that subsection 68(4) of the IRPA was enacted to remove the discretionary power normally held by the IAD to grant a stay of a removal order when a person who has already benefited from a positive decision of the IAD commits another serious offence, as defined in subsection 36(1) of the IRPA, thereby demonstrating that he is not rehabilitated. It automatically cancels their stay and their appeal is terminated.

D. What is settled?

[88] The key points from the jurisprudence that apply to this Application are::

• Section 71 permits the IAD to reopen an appeal only if it is satisfied that “it failed to observe a principle of natural justice” (Nazifpour, at para 83); however, the incompetence of counsel which causes a miscarriage of justice constitutes the IAD’s failure to observe a principle of natural justice (Kaur at para 23; Lui at para 25).

• The threshold to establish that the incompetence of counsel results in a breach of natural justice is high (Zakeri at para 24; Satkunanathan at para 34).

• Subsection 68(4) applies to a pre-stay charge where the conviction is entered post-stay (i.e., during the period of the stay) (Malarski at para 11; Bui at paras 39-45; Caraan at para 46). The date of the commission of the offence is not relevant—only the date of conviction (Bui at paras 48-50).

• Where the elements of subsection 68(4) are established, the stay of deportation is cancelled and the appeal is terminated and the IAD loses jurisdiction over the appeal (Ferri at para 41).

• Although Mr. Vigneswarabalan submits that there is no definition of “terminate”, no definition is needed as the meaning is clear. The ordinary dictionary definition as noted in the Oxford English Dictionary includes the same concepts: bring to an end, end, close, conclude, finish, cease, stop, discontinue, and “pull the plug on”.

• Contrary to Mr. Vigneswarabalan’s contention that if the appeal were terminated and the IAD loses jurisdiction the applicant would be left in “limbo”, the termination of the appeal results in the Deportation Order being in effect.

• Conditions may be included in a stay order to make an exception for a subsequent conviction for a pre-stay outstanding charge, thereby avoiding the consequences of subsection 68(4) (Malarski at para 18; Caraan at paras 45-46). However, the IAD’s awareness of an outstanding charge at the time of granting a stay does not constitute an implicit exception to subsection 68(4) (Caraan at para 44).

E. What is not settled?

[89] The jurisprudence has not addressed, or at least no jurisprudence has been brought to the attention of the Court that has addressed, the circumstances that arise in the present case: whether section 71 permits the IAD to reopen an appeal to address a breach of natural justice once the appeal has been terminated due to the application of subsection 68(4).

IX. The IAD’s Decision is Not Reasonable

A. Generally, subsection 68(4) cancels a stay of deportation and terminates an appeal

[90] The IAD did not err in finding that where subsection 68(4) applies, the stay is cancelled and the appeal is terminated. The jurisprudence is clear that this is the effect of a subsequent conviction during the period of the stay of deportation. Mr. Vigneswarabalan does not dispute that he was convicted during the period of his stay of deportation.

[91] The IAD’s decision of September 2021 includes terms and conditions of the stay of deportation. The conditions include that Mr. Vigneswarabalan notify the CBSA of any changes in his circumstances or contact information, report every six months to the CBSA, and “not commit an offence under an Act of Parliament or an offence, that if committed in Canada, would constitute an offence under an Act of Parliament”. The decision also notes, under the heading “Final Reconsideration”, that the IAD would again consider Mr. Vigneswarabalan’s case in two years’ time and at that time could change or cancel any non-prescribed conditions, or cancel the stay and then allow or dismiss the appeal. In other words, at the end of the two-year period, the IAD would determine whether to cancel the stay and dismiss the appeal of the Deportation Order (i.e., which would result in the Deportation Order being executed) or cancel the stay and allow the appeal, which would result in the dismissal of the Deportation Order.

[92] The “Important Warning” states:

This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.

[93] Mr. Vigneswarabalan claims that his previous counsel did not alert him to this warning and he did not understand it. He submits that his previous counsel thought that it was sufficient to disclose to the IAD that there was an outstanding charge to avoid the consequences of subsection 68(4). He also argues, somewhat inconsistently, that his previous counsel was not aware of the consequences of subsection 68(4).

[94] The IAD did not include any exception in the stay order to exclude the operation of subsection 68(4) for the pre-stay charge that Mr. Vigneswarabalan disclosed to the IAD.

[95] Contrary to Mr. Vigneswarabalan’s submission to the Court that the IAD has no authority to include such a condition, the jurisprudence has addressed circumstances where such exceptions were included (Caraan at para 45-46; Malarski at para 18). Although the inclusion of an exception would appear to thwart the intent of subsection 68(4), the Court has not been directed to any other jurisprudence or statutory provision that would prohibit the inclusion of such an exception.

[96] The IAD did not err regarding the impact of subsection 68(4) in the absence of a breach of natural justice. However, as explained below, the IAD erred in foreclosing consideration of whether a breach of natural justice had been established due to the alleged incompetence of counsel, which affected its December 2021 process and outcome, and which would have permitted the IAD to reopen the appeal.

B. The IAD erred in finding that it had no jurisdiction to reopen an appeal to consider whether a breach of natural justice was established

[97] If there were no allegations of a breach of natural justice, the IAD’s finding would prevail; the appeal would be terminated and the Deportation Order would be in effect.

[98] Section 71 permits the IAD to reopen an appeal only where there is a breach of natural justice (either by the IAD or due to the incompetence of counsel). However, if subsection 68(4) prohibits the IAD to reopen an appeal, there would be no remedy for a breach of natural justice that may have affected the IAD’s decision to the extent of vitiating the decision (Nazifpour at para 52).

[99] The IAD’s decision is not a model of clarity. The IAD’s three findings display the IAD’s uncertainty regarding the fundamental issue. On one hand, the IAD found that it did not have jurisdiction to reopen the appeal due to the application of subsection 68(4). On the other hand, the IAD acknowledged that there could have been a breach of natural justice that affected the December 2021 decision. However, the IAD failed to consider that if a breach were established, it would have vitiated the December 2021 decision that granted the stay in the first place. The IAD’s decision does not display a rational chain of analysis.

[100] The IAD took a more mechanical approach to the interplay between subsection 68(4) and section 71 without considering the fundamental issue of whether there actually was a breach of natural justice.

[101] The IAD accepted that section 71 would permit the IAD to reopen an appeal where a breach of natural justice had occurred. However, the IAD did not determine whether there had been a breach of natural justice. Nor did the IAD grapple with the issue of how a breach of natural justice could be remedied where subsection 68(4) applied. The IAD’s conclusion that it had no jurisdiction overlooks that this approach would leave no remedy for a breach of natural justice.

[102] The IAD did not address whether Mr. Vigneswarabalan had established that the incompetence of counsel resulted in a breach of natural justice, despite his submissions, based on the IAD’s conclusion that it had no jurisdiction to do so. The IAD’s finding fails to recognize its “chicken and egg” analysis—that the IAD did not have jurisdiction to reopen the appeal due to a breach of natural justice, so the IAD could not assess whether there was a breach of natural justice. The incompetence of counsel could constitute a breach of natural justice that would vitiate the decision where that incompetence affected the process or the outcome of the decision. In this case, the December 2021 IAD decision granting the stay is at issue, but if that decision cannot stand, the September 2022 decision cancelling the stay also cannot stand. The IAD should have taken the next step and determined whether Mr. Vigneswarabalan had met the high threshold to establish that the incompetence of his previous counsel amounted to a breach of natural justice in accordance with the three-part test established in the jurisprudence (Kaur at para 23). If the IAD found such a breach, the IAD would again consider the appeal of the ID’s decision. The IAD would then determine whether to allow the appeal, dismiss the appeal or grant a stay of deportation on terms and conditions, taking into account the facts as described above.

[103] As noted, Mr. Vigneswarabalan submits that he was unaware that by deferring his guilty plea to the outstanding pre-stay charge he would be caught by subsection 68(4)—despite the clear terms and conditions and the “Important Warning” in the IAD’s decision granting the stay of deportation. Although it is not possible to speculate whether the outcome would have been different if he had been advised by counsel of the implications of subsection 68(4) before the IAD held the hearing to determine whether to grant a stay, to include an exception for a subsequent conviction on the outstanding charge, or to dismiss or allow his appeal, the outcome could have been different.

[104] The Court is not suggesting that the IAD should find that there was a breach of natural justice, but rather that the IAD should have determined whether there was such a breach. The next step—if a breach were established—would be for the IAD to determine whether to exercise its discretion to reopen the appeal.

C. The IAD erred in finding that reopening the appeal would serve no useful purpose

[105] The IAD erred in finding that there would be no point to open the appeal, even if it found that it had the jurisdiction to do so. The IAD’s finding that it would be required to reach the same conclusion—i.e., that subsection 68(4) would apply—overlooks that if the December 2021 IAD decision is set aside (which would also result in the September 2022 decision that cancelled the stay being set aside) and the IAD again considers the appeal of the Deportation Order, the information before the IAD would differ. The IAD would be aware of the additional conviction, Mr. Vigneswarabalan could make submissions addressing his additional conviction and other relevant factors, and the IAD would make its determination in accordance with sections 67 or 68 of the Act. The IAD would again decide whether to grant the appeal, dismiss the appeal or grant a stay. The IAD could consider whether to include an exception to address the consequences of subsection 68(4). Although including such an exception may thwart the intention of subsection 68(4), the jurisprudence reflects that such exceptions have been included in the terms of a stay order.

[106] Again, the Court is not suggesting that the IAD should do so, only that this could be an option. The IAD must consider the statutory provisions governing appeals of ID deportation orders and all the relevant circumstances.

X. Proposed Question for Certification

[107] The Applicant asks this Court to certify the following questions:

1. Does section 71 of the Act empower the IAD to reopen an appeal to the point where the breach of a principle of natural justice occurred, so as to cure the breach?

2. Once an appeal is terminated under subsection 68(4) of the Act, does the IAD have jurisdiction to reopen an appeal based on a breach of natural justice that arose in relation to the initial IAD decision where, but for that breach, subsection 68(4) would not have been engaged?

[108] The Applicant submits that the proposed questions focus on issues of statutory interpretation and, as such, are issues of general importance; the questions arise from the facts and responses would be dispositive of an appeal.

[109] The Respondent opposes the certification of the proposed questions arguing that the questions do not meet the test for certification (see for example, Varela v Canada (Citizenship and Immigration), 2009 FCA 145 at para 28).

[110] The Respondent submits that the jurisprudence is settled regarding the scope of section 71. With respect to the second question, the Respondent submits that there is no evidence on the record that the IAD’s decision to grant the stay in December 2021 included an explicit or implicit condition to exclude a conviction for the outstanding charge so as not to be caught by subsection 68(4) of the Act. The Respondent adds that the jurisprudence is settled that subsection 68(4) limits the discretion of the IAD.

[111] The Court finds that the second question should be certified with minor modifications. The Court has noted above at paras 86-92 what has been settled in the jurisprudence and what has not. The second question arises from the facts and raises an issue not yet settled in the jurisprudence. The determination of the issue would be dispositive of an appeal.

[112] The Court certifies the following question:

Where an appeal is terminated under subsection 68(4) of the Act, and the IAD otherwise loses jurisdiction over the appeal, does the IAD have jurisdiction pursuant to section 71 to reopen the appeal where a breach of natural justice is established that would affect the initial IAD decision where, but for that breach, subsection 68(4) would not have applied?

 

JUDGMENT in file IMM-11320-23

THIS COURT’S JUDGMENT is that

1. The Application for Judicial Review is granted.

2. The following question is certified:

Where an appeal is terminated under subsection 68(4) of the Act, and the IAD otherwise loses jurisdiction over the appeal, does the IAD have jurisdiction pursuant to section 71 to reopen the appeal where a breach of natural justice is established that would affect the initial IAD decision where, but for that breach, subsection 68(4) would not have applied?

"Catherine M. Kane"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-11320-23
STYLE OF CAUSE:	MEKALAN VIGNESWARABALAN v THE MINISTER OF PUBLIC SAFETY, AND EMERGENCY PREPAREDNESS
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	October 8, 2024
JUDGMENT and reasons:	KANE J.
DATED:	november 20, 2024

APPEARANCES:

David Orman	For The Applicant
Margherita Braccio	For The Respondent

SOLICITORS OF RECORD:

Orman Immigration Law Barristers and Solicitors Toronto, Ontario	For The Applicant
Attorney General of Canada Toronto, Ontario	For The Respondent