Date: 20020205
Docket: IMM-6095-00
Neutral Citation: 2002 FCT 137
BETWEEN:
FIROZ RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARGRAVE P.
[1] This judicial review proceeding was commenced, principally, to obtain an order of mandamus in order to force the Minister of Citizenship and Immigration to make a decision on Mr. Rahman's application for permanent residence. That application has been pending since 1994, a delay which counsel for the Minister characterizes as one of several years.
[2] These reasons arise out of a motion, on behalf of the Minister, to dismiss the judicial review proceeding as moot. The grounds are that the Minister granted Mr. Rahman permanent residence status last Fall, about a year after this proceeding was commenced and immediately before this application was to have been heard on its merits.
[3] Unfortunately I must dismiss the proceeding as moot. However, Mr. Rahman will be generously dealt with as to costs, to the extent that reimbursement is available to a self-represented litigant. I will first touch upon some of the relevant short term background.
BACKGROUND
[4] By way of fairly current background, on 19 October 2001 a judge of the Court, in initially dealing with the Crown's motion to dismiss the application on the grounds of mootness, did so on the mistaken belief that the motion was not opposed. To rectify that oversight the Court set aside the dismissal order and ordered an oral hearing, which took place 28 January 2002.
CONSIDERATION
[5] The Crown, on a brief motion, a brief affidavit and equally brief representations, submitted that permanent residence status having been granted, the judicial review proceeding was moot. A simple approach, indeed a simplistic and unacceptable approach. And all the more so, for Mr. Rahman, a layman without legal representation, acts for himself. Here I note that the Registry advises me of receipt earlier today of uninvited written argument from the Crown: such argument is too late, for if considered it would place Mr. Rahman at a disadvantage. While Mr. Rahman is well spoken, apparently well educated and presented a reasonable and cogent factual background and natural justice argument, I believe he has little idea of the law as to either dismissing a judicial review proceeding for mootness, or the discretionary relief available. However, many of the factual and natural justice points made by Mr. Rahman were those needed in the context of an examination of mootness and discretion within Borowski v. Canada [1989] 1 S.C.R. 342. The brief written representations and the oral presentation of counsel for the Respondent were not enlightening either to Mr. Rahman or to the Court. Thus there were two alternatives. First, I could dismiss the motion, however that would only, as happens from time to time, invite a properly prepared and argued appeal. Second, the law being well established, I might take the representations of counsel and of Mr. Rahman and apply to them the appropriate law. I have elected this latter approach in order to save time and expense for all concerned.
[6] To begin, this judicial review application seeks, primarily, a writ of mandamus, ordering the Respondent to deal with the Applicant's request that he be given permanent resident status. However it also raises a number of peripheral issues, for which declaratory relief is sought, including a 29 March 1999 letter, as to the reopening of the issue of admissibility said to be without valid and legitimate cause and is an attempt to cover up a request for a bribe; a declaration that the Crown has prolonged the whole affair, such being abusive; a declaration that a letter of 7 July 1999, advising that proceedings under section 27 of the Immigration Act were likely, knowing that to be a false and premature statement and again, an attempt to extort a bribe; a declaration that various inquiries made to the Canadian High Commissioner in Bangladesh were unreasonable and particularly out of place given that they were made after the Applicant placed on record an attempt to extort from him the offer of a bribe; and a declaration that a 29 March 1999 decision was made, not for a legal reason, but as punishment for having resisted and complained of an attempt to extort the offer of a bribe. The Applicant also seeks a writ of certiorari and a writ of prohibition, the former to set aside the refusal to process the Applicant's application for permanent residence and the latter to prevent further inquiry into an investigation in respect of the Applicant's application for permanent residence.
[7] The permanent residence status having been granted, the relief sought by way of the three writs, of certiorari, prohibition and mandamus, is now moot. However, there remains the declaratory relief and the question of whether the Court ought to hear the judicial review application even though its principal underpinnings are now moot.
[8] In the present instance the Respondent moved to have the judicial review proceeding dismissed. The usual procedure, where a moot application is not dealt with by a consent dismissal, would be for the respondent to move to strike out the originating document, here the Application for Leave and for Judicial Review. Striking out is, in appropriate circumstances, the practical remedy, notwithstanding that the correct and proper way to deal with an application for judicial review is to proceed to a hearing on the merits, a point made by Mr. Justice of Appeal Strayer in David Bull Laboratories (Canada) v. Pharmacia Inc. (1995) 176 N.R. 48 at page 52. However Mr. Justice of Appeal Strayer went on to say, at page 55, that in the very exceptional case a motion ". . . so clearly improper as to be bereft of any possibility of success", might on occasion be struck out. As I noted in Kinetic Construction Ltd. v. Canada (2000) 166 F.T.R. 134 at 136, there is no hard and fast rule either as to the definition of an exceptional case or as to a nature of the test and why "so clearly improper as to be bereft of any possibility of success", differs from that applied in the case of a pleading to be struck out under Rule 221, except to observe that the hurdle to be overcome is clearly at least as stringent a test as those which are applied under Rule 221 itself.
[9] The Federal Court has in fact struck judicial review applications by reason of mootness, applying the David Bull exception in conjunction with the mootness analysis used by the Supreme Court of Canada in Borowski v. Canada (supra): here I have in mind, as an example, the decision of Mr. Justice McKeown in Fogal v. Canada (2000) 167 F.T.R. 266, from which I borrow on a liberal basis.
[10] In Fogal, at page 269-270, Mr. Justice McKeown began with a reference to Labbé v. Létourneau (1997) 128 F.T.R. 291, in which Mr. Justice MacKay had made two applicable observations:
An application for judicial review ordinarily is considered on its merits in an expeditious process and it is unusual to strike out an originating motion for such review without hearing the merits. Nevertheless, it is clear that the court will dismiss an originating motion in a summary manner where the motion is without any possibility of success.
and
In my opinion, the originating motion of Colonel Labbé in this case has no possibility of success. Its purpose and the relief sought had become moot before the hearing of this application by the appearance of Colonel Labbé before the Commission and his acceptance of arrangements made to testify, commencing the day this matter was heard. (page 300)
[11] Accepting that I may strike out an originating application for judicial review in a summary manner, where it is without any possibility of success. The general analysis is first, whether the relief sought by Mr. Rahman has become moot, as opposed to there being a live controversy and second, if the matter is moot, ought I to exercise my discretion so that the application for judicial review might be heard in any event. I thus turn to Borowski v. Canada (supra).
Borowski v. Canada
[12] The leading case, dealing with the doctrine of mootness is Borowski v. Canada (supra), in which Mr. Justice Sopinka gave the judgment for the Court. He explained the doctrines of mootness at page 353:
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.
Mr. Justice Sopinka, having touched upon the requirement of a live controversy then set out a basic two part analysis:
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. (loc. cit.)
Throughout Mr. Justice Sopinka emphasizes the test for mootness, being that of whether there remains a live controversy.
[13] The analysis, under Borowski, then turns to a consideration of whether, assuming a finding of mootness, the Court should exercise its discretion to hear the application for judicial review in any event and here I will quote at length from passages from Borowski. Mr. Justice Sopinka referred to three rationales which the Court might use to exercise its discretion to hear a moot application, noting that one ought to examine the underlying foundation or justification for the exercise of discretion in favour of hearing a moot application:
The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context. This was one of the factors which played a role in the exercise of this Court's discretion in Vic Restaurant Inc. v. City of Montreal, supra. (pages 358-359)
Mr. Justice Sopinka then went on to consider a second broad rationale, the concern for judicial economy as a factor in deciding not to hear a moot case and indeed, to hear such a moot case only if the special circumstances of the case made it worthwhile to apply scarce judicial resources in its resolution:
The second broad rationale on which the mootness doctrine is based is the concern for judicial economy. . . . It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants. The fact that in this Court the number of live controversies in respect of which leave is granted is a small percentage of those that are refused is sufficient to highlight this observation. The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. (page 360)
Mr. Justice Sopinka limited this special circumstances test by observing that even the possibility of a recurrence of the same point ought not to be decided in a moot context, but that the Court ought to wait and determine the point in a genuine adversarial context:
The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. (page 361)
He then also dealt with the rather nebulous concept of public importance and public interest as an answer to the bar of mootness:
There also exists a rather ill-defined basis for justifying the deployment of judicial resources in cases which raise an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law. (page 361)
In Borowski the Court felt that it would be asked to examine the same question, in the future, but not in an abstract and moot context.
[14] Mr. Justice Sopinka then turned to the third rationale:
The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. This need to maintain some flexibility in this regard has been more clearly identified in the United States where mootness is one aspect of a larger concept of justiciability. (page 362)
Here the concern is that a court, in the absence of a live dispute affecting the rights of the parties, ought not to intrude into what may be the domain of the legislative branch of government.
[15] To recapitulate, the three fundamental justifications or rationales are first, that there must be an adversarial context by parties having a stake in the outcome, in order to justify hearing a moot issue. Second, is a question of whether, an issue being moot, the Court ought to apply scarce and I would add expensive, judicial resources, to resolve the point and again here I would add the concept of whether it is proper to ask the taxpayer to bankroll a large part of the legal process where it is not worthwhile to do so. Third, the Court must be aware of its role as an adjudicative body, so as not to rush into a matter in which there is no dispute involving the rights of parties and all the more so when to do so might intrude into the domain of the legislative branch of government.
[16] In Borowski Mr. Justice Sopinka decided the matter on the basis of the third rationale of the mootness doctrine, believing that an important element of the third factor was ". . . the need to demonstrate some sensitivity to the effectiveness or efficacy of judicial intervention" (page 365). He felt that:
The need for courts to exercise some flexibility in the application of the mootness doctrine requires more than a consideration of the importance of the subject matter. (page 365)
In the case of Mr. Borowski the Supreme Court noted that to decide the moot issue in question would be to ". . . intrude on the right of the executive in order to reference and preempt a possible decision of Parliament by dictating the form of legislation it should enact. To do so would be a marked departure from the traditional role of the Court." (page 365). This last concept, of refraining from dictating to government what it ought to legislate is one of several applicable in the present instance.
Mootness and Declaratory Relief
[17] Before turning to a consideration of the present case, in the context of the Borowski framework, I should comment upon the pleas by Mr. Rahman for declaratory relief. Certainly the permanent residence aspect of this judicial review is moot. However, Mr. Rahman also seeks declarations as to discriminatory and improper actions of the Crown which surrounded the delay in provision of permanent resident status. In Fogel (supra) Mr. Justice McKeown considered whether, the underpinnings of the application being gone, by reason of mootness, the plaintiff still had a right to go to a trial judge for the surrounding declaratory relief.
[18] Mr. Justice McKeown's analysis began with a consideration of Federal Court Rule 64, a permissive rule, which allows the Court to make binding declarations whether or not consequential relief might be claimed:
64. Declaratory relief available -- No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed.
Mr. Justice McKeown observed that "Mootness cannot be avoided by using rule 64." (page 274), relying on a passage from Operation Dismantle Inc. v. Canada [1985] 1 S.C.R. 441 at 481-482:
The appellants acknowledge that a declaration of unconstitutionality is a discretionary remedy (Solosky v. The Queen, [1980] 1 S.C.R. 821) but say that the discretion lies with the trial court and is exercisable only after a trial on the merits. Accordingly, their claim for this relief should not have been struck out at the preliminary stage regardless of the fate of their other claims. However, as the respondents point out, declaratory relief is only discretionary in the sense that a court may refuse it even if the case for it has been made out: see Zamir, The Declaratory Judgment (1962), at p. 193. The court, therefore, on a motion to strike on the basis that no reasonable cause of action has been disclosed in the statement of claim is not in any sense usurping the discretionary power of the trial court.
Mr. Justice McKeown's observation, that mootness cannot be avoided by way of Rule 64, does not mean that the declaratory relief is automatically gone, once the principal relief falls as moot, but rather that the judge or prothonotary hearing a motion to strike out for mootness still has the discretion to decide whether the whole matter, not only the principal moot point, but also the plea for declaratory relief, ought still to proceed to trial on the basis of Borowski.
Live Controversy
[19] I turn first to a brief consideration of whether there is in the present instance a live controversy by which to avoid the doctrine of mootness. As Mr. Justice Sopinka pointed out, in the first passage which I quoted from Borowski, the general principle is that a court will decline to hear a question unless it will have the effect of ". . . resolving some controversy which affects or may affect the rights of the parties.". From that it followed that if there was no live controversy the case is regarded as moot.
[20] Mr. Rahman, in his Application for Leave and for Judicial Review, seeks "The matter of the disposition by Citizenship & Immigration Canada of the Applicant's application for permanent residence.". Under that heading the Applicant goes on to allege, as basic, but unparticularized details, various acts and omissions, including the failure to make a decision despite the unreasonable passage of time, deliberate dilatoriness, unfairness, bias, oppression and the attempted extortion of a bribe.
[21] The reason given for the judicial review has now been satisfied, with the grant of permanent resident status. The Crown submits that there is no longer a live controversy. Turning to Mr. Rahman's position, he cannot claim a live controversy as to the permanent resident status, however he feels that there remain live controversies in that the Minister has not addressed underlying problems in the system, which may be ongoing; that his passport, said to have been mutilated by Canadian Security Intelligence Services in a fit of pique and then confiscated by the Immigration authorities as altered, events not denied, has not been returned to him; that the public has an interest in rooting out corrupt officials; that there is a live issue as to costs; and that the Court, having spent considerable time on the matter, ought to insist that the proceeding come to a proper conclusion. These concerns lead to the declaratory relief which Mr. Rahman seeks. However, as I have already pointed out, the doctrine of mootness may not be avoided merely by seeking declaratory relief. I would comment further, first that the interest of the public is an aspect to be considered when determining whether the matter ought to proceed despite it being moot; second, that the Court is in a neutral position, not being a part of any controversy; third, that the passport issue is separate and should be considered in a separate proceeding, for by Rule 302 only one issue may be dealt with in a judicial review proceeding; and finally that costs are not part of the controversy, but rather are a procedural matter, which I have dealt with at the end of these reasons. There being no tangible and concrete dispute, giving rise to a live controversy, I now turn to a consideration of whether I ought to exercise my discretion and determine that this matter should, in the circumstances, proceed, notwithstanding that it is moot.
Continuance of a Moot Proceeding
[22] I must first consider whether, despite the cessation of a live controversy, there is still an adversarial relationship which will prevail to the extent of assisting the Court sufficiently to resolve the moot legal dispute.
[23] Certainly Mr. Rahman feels strongly as to his declaratory relief and has the necessary zeal to uphold his half of an adversarial proceeding. However, I have serious doubts that the Crown has any particular reason to become wholeheartedly involved. This is so in that much or perhaps all of the declaratory relief is either of a nature that is not justiciable in the present proceeding, or ought not to be dealt with under the third test from Borowski. Were this somewhat suspect lack of an adversarial context the only issue to deal with, I would tend to exercise my discretion and allow the matter to proceed. However, the second and third rationales, referred to by Mr. Justice Sopinka, in Borowski, are determinative.
[24] The second test from Borowski has its justification in the fact that there is not enough court time to hear every matter to a conclusion, merely because a party, believing strongly in a case, wishes to have his or her day in court. Certainly, a party ought not easily to be deprived of a day in court. However, overcrowded court dockets and overworked judges, resulting in the need to ration scarce judicial resources, make it necessary to find special circumstances in order to apply those resources to a moot case. While I have some sympathy with Mr. Rahman and can appreciate many of the points which he makes, none of them constitutes special circumstances making it appropriate or worthwhile that this matter proceed, for there are also many live judicial review proceedings for which applicants will not receive leave to proceed, a point highlighted by Mr. Justice Sopinka at page 360, a passage which I have quoted above. On this basis the matter should not proceed.
[25] Third, in a consideration of the exercise of discretion to allow a moot matter to proceed, is the need for the Court to be sensitive to its role in our system, a role which ought not to trench upon the role of the legislative branch of government. Here the issue is clearly moot. It would be improper to intrude upon the legislative function of Parliament with a preemptive decision: this would be an improper departure from the traditional role of a court. To make the declarations sought by Mr. Rahman the Court would most certainly be intruding, by dictating legislation and steps, which are clearly within the role of the legislative branch of government.
[26] This is not to say that Mr. Rahman's points, which he hoped would lead to declarations, are unimportant. Rather, they ought to be dealt with in the context of a live dispute, as opposed to a moot issue. This, of course, does not bar Mr. Rahman from taking separate and discreet proceedings, for example, judicial review as to his passport or a proceeding to claim damages for loss of income. That is not to say that such proceedings would prevail, however such causes of action have no place in the present application for judicial review.
[27] I decline to exercise my discretion to allow this matter to proceed. The motion, which I characterize as a motion to strike out by reason of mootness, is granted. The application for judicial review is dismissed. However this leads to the matter of costs.
COSTS
[28] A party who acts for himself or herself is unable to receive counsel's fees, which are the costs referred to in Federal Court Rule 400 and set out as fees in the table in Tariff B. That counsel fees may not go to successful lay litigants was pointed out clearly by the Court of Appeal in Lavigne v. Canada (1998) 229 N.R. 205 at 206. Mr. Justice of Appeal Marceau went on to say that a change of the Federal Court Act or the Federal Court Rules would be needed to provide lay litigants with the fees that have always been reserved to counsel.
[29] The move toward statutory authority for payment of a lay litigant's costs, comment upon by Mr. Justice Marceau, apparently came about in the United Kingdom, where the matter of the costs of a lay litigant is dealt with by the Litigants in Person (Costs and Expenses) Act, 1975, chapter 47. The Alberta Court of Queen's Bench considered the legislation in Khokhar v. Blackburn [1994] 2 W.W.R. 202, where Mr. Justice McDonald denied an allowance to a lay litigant to cover lost wages, but did allow some compensation, under the Alberta Provincial Court Act, for preparing and arguing an appeal. While this may be sensible and proper, under the Alberta legislation, Mr. Rahman cannot receive more, in this Court, than Mr. Justice Tietelbaum would allow a lay litigant in Canada v. Kahn (1999) 160 F.T.R. 83.
[30] In Canada v. Kahn a successful lay defendant claimed not counsel costs under Tariff B, but rather out-of-pocket expenses paid to legal counsel for advice and for lost time in defending his interests. Mr. Justice Tietelbaum made much of the fact that Mr. Kahn was forced to defend his legal interests in a judicial review application. Yet here, given the inability of the Minister of Citizenship and Immigration, to make a decision as to Mr. Rahman's permanent residency, Mr. Rahman really had no choice but to commence these proceedings and indeed, they were effective given, as I have already pointed out, that the Crown produced permanent resident status when faced with the eminent hearing of this judicial review application. Thus the present situation falls clearly within Kahn.
[31] In Kahn Mr. Justice Tietelbaum, as I say, awarded fees paid to counsel for advice, his disbursements, the cost of time spent in consultation with his legal counsel, an allowance for time spent in photocopying documents and the service of documents and a lump sum for time lost.
[32] As in Kahn, Mr. Rahman is here entitled not only to his out-of-pocket disbursements, but also to a reasonable sum, as a lump sum, to reimburse him for lost time in pursuing his legitimate interests. Such a lump sum, as pointed out by Mr. Justice Tietelbaum in Kahn, is designed to cover disbursements for court attendance and for time spent in pursuing his legitimate interests: see page 91.
[33] In the present instance Mr. Rahman may have his reasonable, actual out-of-pocket disbursements: if these cannot be agreed upon they may be taxed. Mr. Rahman is awarded a lump sum of $1,350 to go toward reimbursing him for lost time in pursuing his interests. In arriving at that sum I have taken into account that the permanent resident status was granted not long before this matter was scheduled to have been heard. I have also taken into account that Mr. Rahman was not successful in his efforts to oppose the motion to strike out the proceeding for mootness, however neither have I awarded costs of the motion to the Respondent, by reason by lack of effort on the part of the Respondent.
[34] I would conclude this subject of costs by making it clear that the allowance to Mr. Rahman for lost time in pursuing his interests is not designed to be a full reimbursement, any more than our solicitor-client costs under Federal Court Tariff B.
CONCLUSION
[35] I have some sympathy for Mr. Rahman, who may well have been abused and badly done by, all at a slow pace, by the Crown. However, the status of permanent resident having been granted, I do not see the utility of proceeding with a moot issue, or with declaratory relief, relief which would neither be as broad as the Applicant thinks it would be, nor as effective in providing for fair play in the future. The application for judicial review is struck out and the proceeding dismissed.
[36] Mr. Rahman shall have an allowance, not as costs, to go toward reimbursement of his time spent in pursuing his legitimate interests, in the amount of $1,350 with out-of-pocket disbursements, if not agreed, to be taxed.
(Sgd.) "John A. Hargrave"
Vancouver, British Columbia
5 February 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6095-00
STYLE OF CAUSE: Firoz Rahman v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 28, 2002
REASONS FOR ORDER : HARGRAVE P.
DATED: February 5, 2002
APPEARANCES:
Firoz Rahman FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Firoz Rahman FOR APPLICANT
Morris Rosenberg FOR RESPONDENT
Attorney General of Canada