IMM-2761-96
BETWEEN:
OLUWATOYIN PETER OGUNFOWORA
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
I have been asked to reconsider the terms of an Order that I signed on April 16, 1997 in the case of Oluwatoyin Peter Ogunfowora v. the Minister of Citizenship and Immigration, IMM-2761-96, April 16, 1997 F.C.J. No. 456 (Q.L.). On that date, I issued Reasons for Order in which I quashed the decision of a visa officer who had denied Mr. Ogunfowora's request for a visa on compassionate and humanitarian grounds under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2. I held that the visa officer had committed reviewable errors by fettering his discretion and by failing to act with regard to the totality of the evidence. The Order dated April 16, 1997 was silent on the issue of whether the case raised serious questions of general importance for certification under subsection 83(1) of the Immigration Act.
| A judgment of the Federal Court-Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court-Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
The respondent, (I refer to the Minister as respondent as the minister was the respondent in the motion for judicial review) the Minister, now brings a motion to vary the terms of the original Order to certify three questions.
ISSUES:
The Court must separate the issue of how the Minister brought the current motion for reconsideration from the distinct issue of the contents of the proposed questions for certification.
1. What are the procedural conditions for bringing a motion to certify serious questions of general importance once the original Order has been issued?
2. Do the actual questions posed by the respondent raise serious questions of general importance?
DISCUSSION:
1.The Procedural Issue:
Counsel for the applicant objected to the Minister's procedures for bringing the motion for reconsideration on two grounds. First, the applicant argues a point of law and submits that the Minister"s motion for reconsideration is without merit. According to the applicant, if a matter were truly a serious question for certification, it is inconceivable that it could remain invisible until after a decision is made on a judicial review application: see Illanko v. Solicitor General of Canada (1995), 27 Imm. L.R. (2d) 106 (hereinafter Ilanko). The applicant brought a counter-motion to dismiss the Minister"s original motion for reconsideration on the basis of Ilanko .
Second, the applicant objects to the Minister"s belated delivery of the contents of the proposed questions for certification. He disputes the fairness of having received the contents of the proposed questions for certification only moments before the hearing of the Minister's motion for reconsideration.
On July 29, 1997, I dismissed the applicant"s counter-motion to dismiss the Minister"s motion for reconsideration. I gave no written reasons for dismissing the applicant"s counter-motion. However, it is well understood that one cannot strike a notice of motion by a subsequent motion except in very exceptional circumstances (see David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at 596-597), which were not present in the case at bar.
In effect, I took issue with the applicant"s chosen method of contesting the appropriateness of the Minister"s motion for reconsideration. The substance of the applicant"s objection based on the Ilanko case was not specifically addressed in the July 29, 1997 Order dismissing the applicant's counter-motion. Neither did the applicant make any argument on the merits of his objection to the Minister's motion for reconsideration. However, the Minister did offer a preliminary analysis of the caselaw under Section 83 of the Immigration Act, including the holding in Ilanko.
For instance, in Huynh v. Canada, [1996] 2 F.C. 976 (hereinafter Huynh), the Federal Court of Appeal ruled contrary to Ilanko. In Huynh, the Court was asked to rule on the constitutionality of Section 83 of the Immigration Act. Justice Hugessen, for the unanimous Court, held that Section 83 did not violate the Canadian Charter of Rights and Freedoms. The Court found that the limitation on the right to appeal found in Section 83 did not breach the appellant's rights under Section 7 of the Charter to life, liberty or security of the person. In making this primary finding, Justice Hugessen also offered comments in obiter on the alleged non-compliance of Section 83 with the requirements of fundamental justice. Justice Hugessen examined the principle established by Justice Simpson in Ilanko, supra at page 109 that "it is inconceivable that a serious question of general importance which transcends the interests of the parties could remain invisible until after a decision is made on a judicial review application".
On the Ilanko decision, Justice Hugessen wrote at page 994 in Huynh:
| While I have some sympathy with the views expressed by Simpson J. and agree that in the great majority of cases (of which, as we shall see, this is one) any potential question of general importance will be obvious to both counsel and the Court long before the hearing is concluded, I think that she was wrong to say that it was "certain" that such would always be the case and "inconceivable" that a question could remain invisible until after the reasons were given. It can and does happen that judges will decide a case on a point that was not taken by counsel; perhaps the most common example would be where, after the hearing, a higher court renders a decision which, in the judge's view, is dispositive of the matter. The judge's interpretation of the higher court decision may, in its turn, conceivably raise a question of general importance. Where that is the case, it would seem to me that the provisions of Rule 1733 could appropriately be invoked. Better still, if there is any uncertainty at all as to whether his grounds for decision may raise a new question which was not foreseeable by counsel, or if the claimant is unrepresented, the preventive technique employed by Joyal J. in Grygorian, supra, [Grygorian v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm L.R. (2d) 52 ] should be employed. |
Before going any further, I should explain two of the references in Justice Hugessen's analysis of Ilanko: "Rule 1733" and Justice Joyal's "preventive technique" in Grygorian, supra. Rule 1733 of the Federal Court Rules sets out how a party might move to set aside or vary a judgment after it has been issued. It reads:
| A party entitled to maintain an action for the reversal or variation of a judgment or order upon the ground of matter arising subsequent to the making thereof or subsequently discovered, or to impeach a judgment or order on the ground of fraud, may make an application in the action or other proceeding in which such judgment or order was delivered or made for the relief claimed. |
In Ilanko, supra, Justice Simpson held contrary to Popov v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 90 and determined that Rule 1733 cannot be invoked to allow a party to seek certification of a question under Section 83 of the Immigration Act after the issuance of the underlying judicial review application. However, as is evident from the passage cited above from the Court of Appeal's decision in Huynh, Rule 1733 can in fact be invoked in a certification matter.
Finally, the reference in Justice Hugessen's decision in Huynh to Justice Joyal's "preventive technique" in Grygorian, supra, must be addressed. In Grygorian, Justice Joyal anticipated the difficulties that might arise, where in Justice Hugessen's phrase in Huynh at page 992, "a judge's reasons for disposing of the judicial review application turn on a question which was not argued fully or at all at the hearing". Justice Joyal in Grygorian at page 56 concluded his reserved reasons for order with the following passage:
| At the hearing of this application, it was mentioned by counsel that the issue before the Court might merit the certification of a question to the Federal Court of Appeal. If that still holds true, the parties might agree as to the text of it or otherwise advise the Court of their position. Two weeks from the date of these Reasons for Order should give counsel sufficient time to respond, after which I will issue a formal Order. |
From my reading of the Federal Court of Appeal's decision in Huynh, it is clear that contrary to the holding in Ilanko, a serious question of general importance can be certified after the reasons for judgment have been issued. The applicant's arguments based on Ilanko must therefore be rejected. Nonetheless, the facts in the case at bar do not easily fit the narrow window of opportunity identified by Justice Hugessen in Huynh. One must not forget that Justice Hugessen qualified his critique of Ilanko by stating that in "the great majority of cases ....any potential question of general importance will be obvious to both counsel and the Court long before the hearing is concluded...". As an instance of an exceptional circumstance requiring certification after the conclusion of the hearing, Justice Hugessen specifically addressed the case of a judge deciding on the basis of a higher Court's subsequent decision. In that particular circumstance, Rule 1733 would be appropriately invoked. In the case at bar, the decision dated April 16, 1997 did not turn on a higher Court's subsequent decision.
As well, the Grygorian precedent cited by Justice Hugessen in Huynh can be distinguished from the case at bar. At the hearing of the applicant's underlying application for judicial review in February 1997, there was no "mention" by counsel as there was in Grygorian, supra, that a question for certification might arise. Indeed, during the hearing of the Minister's motion for reconsideration on July 29, 1997, counsel for the Minister admitted that at the judicial review hearing, she merely had a question "en esprit", kept entirely to herself. This unarticulated question apparently vaguely turned on the issue of the fettering of discretion. In my opinion, therefore, the Minister is hard pressed to argue that the case at bar fits the principles stated in Huynh.
Moreover, counsel for the Minister also acknowledged on July 29, 1997 that she had only actually drafted the proposed questions for certification on July 28, 1997, one day before the hearing of the Minister's motion and some four months after both the original Reasons for Order were issued on April 16, 1997 and the Minister's request for reconsideration was made on April 28, 1997. This belated drafting of the questions does not bode well for the "serious[ness]" or "general importance" of the questions.
On the issue of the timeliness of the Minister's drafting, the applicant objected to the fairness of the Minister"s actions. The Minister only provided the applicant with the actual questions for certification on July 29, 1997, moments before the hearing of the Minister"s Motion before the Court. Counsel for the applicant had originally asked to see the contents of the questions for certification on May 27, 1997. However, he was rebuffed. The applicant therefore raised the issue of whether the Minister must present the contents of the questions for certification to the opposing party before the hearing of a motion for reconsideration seeking to vary the terms of the previous Order.
Another hearing day was set aside to permit counsel to prepare arguments concerning the timing issue and the actual contents of the questions for certification. However, the precedent cited by the Minister during the oral hearing on July 29, 1997, Mak v. Canada (Minister of Citizenship and Immigration), IMM-2228-96, April 4, 1997, [1997] F.C.J. No. 375, does not address in any fashion the required delivery date of questions for certification on a motion for reconsideration. The caselaw on Rule 337(5)(b) does not reveal any discussion on the issue. Rule 337(5)(b), the provision on motions for reconsideration in the Federal Court Rules, allows a party to move for reconsideration of a matter if it should have been dealt with and has been overlooked or accidentally omitted by the Court: (see Boateng v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R.. (2d) 9). I did note during the course of the hearing held on July 29, 1997, that I had neglected on February 11, 1997, the date of the original hearing for judicial review, to ask the parties if there were questions for certification. Rule 18 of the Federal Court Immigration Rules, 1993 [SOR/93-22] does provide:
| 18.(1)A judge shall not render judgment in respect of an application for judicial review without first giving the parties an opportunity to make a request that the judge certify that a serious question of general importance as contemplated by section 83 of the Act is involved. |
I agree with the submission of respondent that it is the responsibility of the judge to request of the parties if they have a question to be certified.
Aside from any oversights on the Court's behalf, I believe that the Minister did press the boundaries of fairness by refusing or being unable to provide the applicant the proposed questions for certification until the very last moment. However, the fairness of the delivery is a moot point since I granted another hearing date on September 5, 1997 in order to give the applicant an opportunity to consider the proposed questions.
Therefore, to sum up on the first issue of the procedural conditions for bringing a motion to certify serious questions of general importance, in my view, the Minister's motion does not neatly fit into the Huynh criteria of exceptional cases. In other words, I have some reservations that this is a case where serious questions of general importance were not apparent during the course of the hearing. As discussed in greater detail below, I believe that the Minister is overstating the situation in arguing that the Reasons for Order came as a complete surprise. The Reasons for Order dated April 16, 1997 did turn on a question, the fettering of discretion, that was argued at hearing. Thus, the reasons for the April 16, 1997 decision granting judicial review were on the record.
Arguably, however, the Minister did not have an opportunity to raise questions for certification, although it is equally true that the Minister made no effort during the hearing itself or in the three months between the hearing and the Reasons for Order to propose a question for certification. In a brief decision, Canada (Minister of Citizenship and Immigration) v. Jhatu (1996), 124 F.T.R. 183 (hereinafter Jhatu), the Associate Chief Justice did certify a question even though there was no apparent mention of the need to certify a question before the Reasons for Order were issued themselves in August, 1996.1. There was also some form of time delay between the original reasons for dismissing the judicial review application in Jhatu and the Order certifying a question. Justice Jerome issued the Order to certify the question some four months after his original reasons. The Minister's current motion for reconsideration on the basis of a failure to certify serious questions of general importance is therefore not without precedent.
However, there is no discussion in Jhatu of any of the procedural wrinkles bedeviling the case at bar such as the Minister's belated delivery of the proposed questions to the applicant or the Court's failure to give counsel an opportunity to submit questions for certification.
I shall now address the Minister's proposed questions for certification.
2.The Contents of the Questions
The first proposed question reads:
| When assessing an application for humanitarian and compassionate relief presented pursuant to subsection 114.(2) of the Immigration Act and based solely on an alleged danger of return to the Applicant's country of origin, can an Immigration Officer consider the opinion of a post claim determination officer in reaching his or her decision? |
The first proposed question is already answered in the caselaw, even if not by he Court of Appeal, and this jurisprudence was in fact cited with approval in the decision dated April 16, 1997. Both parties offered argument on the applicability of Al-Joubeh v. Canada (Minister of Citizenship & Immigration) (1996), 109 F.T.R. 235 (hereinafter Al-Joubeh). In Al-Joubeh, Justice Campbell held that a visa officer did not fetter his or her discretion by consulting a PDRC officer's assessment of risk. During the judicial review hearing, the applicant had raised the fettering of the visa officer"s discretion as an issue because the visa officer had consulted the PDRC officer"s separate assessment of the risk of return. It is my opinion, therefore, that the first proposed question must be rejected because it raises a question of law that has already been determined by a decision of the Federal Court.
The second proposed question reads:
| Is the length of time taken by an Immigration Officer in assessing an application for humanitarian and compassionate relief presented pursuant to subsection 114.(2) of the Immigration Act and after considering the opinion of a post claim determination officer on the presence of an alleged danger of return to the Applicant"s country of origin, an indication (a showing) that he fettered his discretion? |
The second question turns on a nuance of the fettering of discretion argument. The Reasons for Order dated April 16, 1997 distinguished Al-Joubeh, supra, on the facts and honed in on the particular one day interval between the visa officer"s decision and the PDRC officer's assessment as an indication that the visa officer had indeed fettered his discretion. Neither party during the judicial review of the visa officer"s decision made any direct argument on the interval issue. It is therefore plausible that the crux of the April 16, 1997 decision was unexpected for the Minister. However, the basic question for me is whether the proposed question for certification is solely dependent on a factual issue or whether the time interval matter does in fact raise a distinct question of law of general importance. My preliminary opinion is that the question falls into the grey zone of fact and law. I am of the opinion that in such a case, it is better that a definitive answer be given by the Court of Appeal.
I believe that the question raises a question of law worthy of certification, I would still quarrel with the Minister's wording of the question. It is garbled and seems to raise almost two separate ideas, the interval of time and the actual length of time, rather than focusing solely on the relevant question of the time interval. As such, I would suggest the following question for certification:
| Is the length of time between an Immigration Officer"s assessment of an application for humanitarian and compassionate relief presented pursuant to subsection 114.(2) of the Immigration Act and the Immigration Officer"s consideration of the opinion of a post claim determination officer on the presence of an alleged danger of return to the Applicant"s country of origin, an indication (a showing) that the Immigration Officer fettered his discretion? |
The third proposed question reads:
| When an immigration officer has assessed an application for humanitarian and compassionate relief pursuant to subsection 114.(2) of the Immigration Act, does the officer have an obligation to mention specifically in his decision or in an affidavit what evidence from the applicant he has considered? |
The third proposed question is the easiest to dismiss. According to Associate Chief Justice Jerome's decision in Jhatu, supra, at page 184, the test is whether I am satisfied that the matter "transcends the interests of the immediate parties to the litigation and that it is appropriate to certify the question proposed by the applicant for consideration by the Federal Court of Appeal". The Minister's proposed question is not one of general importance that transcends the parties because it has already been answered and addressed in the caselaw. The Reasons for Order dated April 16, 1997 acknowledge at page 10, the "presumption that a decision-maker takes into account all of the evidence provided, and the rule that there is no need for the decision-maker to explicitly refer to each piece of evidence: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N. R. 317 (F.C.A.)". Once again, the decision focused not on a question of law, but on a particular fact and the exceptional circumstances in the case itself. My decision stated at pages 10-11, "If the respondent chooses to elaborate on the decision-making process in a voluminous affidavit, it must bear the consequences if the affidavit casts doubt on the thoroughness of this process".
In that I neglected to give the parties an opportunity to submit questions to be certified for appeal, the present application for reconsideration of my decision of April 16, 1997 is allowed.
The questions to be certified are the following:
| (1) Is the length of time between an Immigration Officer"s assessment of an application for humanitarian and compassionate relief presented pursuant to subsection 114.(2) of the Immigration Act and the Immigration Officer"s consideration of the opinion of a post claim determination officer on the presence of an alleged danger of return to the Applicant"s country of origin, an indication (a showing) that the Immigration Officer fettered his discretion? |
| (2) Does "giving the parties an opportunity to make a request that the judge certify that a serious question of general importance as contemplated by section 83 of the Act is involved" pursuant to subsection 18(1) of the Federal Court Immigration Rules mean that it is the sole responsibility of the judge hearing the judicial review to ask the parties if they wish to submit such a question for certification or must a party to the proceedings state to the Court that such a question arises from the proceedings before the Court. |
This second question was not proposed by either party to these proceedings but is proposed by the Court.
In that the second day of hearing resulted from the fact that counsel for the respondent failed to give the proposed questions to be certified to the counsel for the applicant at the first hearing, respondent shall pay to the applicant forthwith costs in the sum of $750.00.
"Max M. Teitelbaum" J U D G E
OTTAWA
September 9, 1997
__________________1 Justice Jerome's reasons for dismissing the original judicial review application are found at Canada (Minister of Citizenship & Immigration) v. Jhatu (1996), 117 F.T.R. 236