Toronto, Ontario, January 26, 2006
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application is focused on an interpretation of s.71 of the IRPA by the Immigration and Appeal Division ("IAD"). In its decision, the IAD found it is bound by Justice Kelen's decision in Ye, Ai Hua v. M.C.I. 2004 FC 964. In Ye, in finely detailed and carefully written reasons applying principles of statutory construction, Justice Kelen determined that s.71 limits or restricts the jurisdiction of the IAD to reopen appeals to breaches of the rules of natural justice; that is, s.71 implicitly excludes the common law jurisdiction to reopen appeals to permit an appellant to present additional or new evidence.
[2] The natural justice issue before the IAD in the present case concerned the conduct of the immigration consultant representing the Applicant at the initial IAD appeal hearing held prior to the IRPA coming into effect. In that appeal hearing, the immigration consultant did not call family members to testify on the equitable issue of the level of family hardship that would be caused by the Applicant's removal from Canada. As a result, the IAD conducting that hearing did not grant equitable relief. In the decision presently under review, the IAD found that there is insufficient evidence to conclude that the immigration consultant was incompetent which, if found, would amount to a breach of natural justice. It is agreed that the standard of review of this finding is reasonableness. As I expressed during the course of the oral hearing of the present Application, I have no evidence upon which to decide that the IAD's finding was unreasonable. Consequently, this aspect of the Applicant's argument in the present Application is dismissed.
[3] On the issue of the correct interpretation of s.71 of the IRPA, it is important to note that Justice Kelen's decision has been followed by Justice Noël in Griffiths v. Canada (Minister of Citizenship and Immigration) 2005 FC 971, and Justice Heneghan in Nazifpour v. Canada (Minister of Citizenship and Immigration) 2005 FC 1694.
[4] Consequently, three judges of this Court have made carefully reasoned decisions with respect to the interpretation of s.71. Nevertheless, in the present Application, Counsel for the Applicant asks that I find that Justice Kelen's decision is wrongly decided. In support of this proposition, Counsel for the Applicant argues that Justice Kelen: misapplied the principles of statutory interpretation relied upon; failed to apply s.11 of the Interpretation Act; failed to apply s.44 of the Interpretation Act; ruled inconsistently with respect to the objectives of the IRPA; failed to give effect to the need to consider new evidence respecting the best interest of an affected child, based on considerations such as the Convention on the Rights of the Child; and s.7 of the Charter; and failed to apply Article 10 of the Universal Declaration of Human Rights.
[5] The Applicant's argument raises the issue of the application of the concept of judicial comity. That is, the issue is whether I should exceed to the Applicant's request to make a finding that Justice Kelen, and indeed Justices Noël and Heneghan are in error in reaching their interpretation of s.71. A detailed definition of "judicial comity" is supplied by the British Columbia Court of Appeal as follows:
The generally accepted view is that this court is bound to follow a previous decision of the court unless it can be shown that the previous decision was manifestly wrong, or should no longer be followed: for example, (1) the decision failed to consider legislation or binding authorities which would have produced a different result, or (2) the decision, if followed, would result in a severe injustice. The reason generally assigned for this approach is a judicial comity. While doubtless this is a fundamental reason for the approach, I think that an equally fundamental, if not more compelling, reason is the need for certainty in the law, so far as that can be established. Lawyers would be in an intolerable position in advising clients if a division of the court was free to decide an appeal without regard to a previous decision or the principle involved in it
(Bellv. Cessna Aircraft Co., [1983] 149 D.L.R. (3d) 509 at 511)
This authority has been applied by Justices of this Court, specifically, Justice Richard (as he then was) in Glaxo Group Ltd. v. Canada(Minister of National Health and Welfare), [1995] F.C.J. No. 1430, and Justice Mactavish in Aventis Pharma Inc. v. Apotex Inc., [2005] F.C.J. No. 1559. The Court of Appeal has also confirmed that the question is whether the decision being considered is fundamentally flawed (see Janssen Pharmaceutica Inc. v. Apotex Inc., [1997] F.C.J. No. 169).
[6] In my opinion, there is nothing in the Applicant's argument that allows me to find that Justice Kelen is manifestly wrong in the decision rendered in Ye, and there is no reason to say that Ye should no longer be followed. As a result, by applying Ye, I find that the IAD was correct in its interpretation of the IRPA.
ORDER
Accordingly, I dismissed the present Application.
There is no question that the Applicant's argument with respect to Justice Kelen's decision in Ye raises a matter of general importance which should be considered on appeal. Therefore, I certify the following question for consideration by the Federal Court of Appeal:
1. Does s.71 of the IRPA extinguish the common law continuing "equitable jurisdiction" of the IAD to reopen an appeal except where the IAD has failed to observe a principle of natural justice?
"Douglas R. Campbell"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8987-04
STYLE OF CAUSE: NAIPAUL BALDEO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 25, 2006
APPEARANCES:
| Ronald Poulton
|
|
| Mielka Visnic
|
SOLICITORS OF RECORD:
| Mamann & Associates Toronto, Ontario |
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
|