EVANS J.A.
PELLETIER J.A.
BETWEEN:
SHURLYN CATHY ANN JONES, SHURNIKAY JONES
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on August 17, 2006.
REASONS FOR ORDER BY: EVANS J.A.
CONCURRED IN BY: RICHARD C.J.
PELLETIER J.A.
Docket: A-173-06
Citation: 2006 FCA 279
Present: RICHARD C.J.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
SHURLYN CATHY ANN JONES, SHURNIKAY JONES
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR ORDER
[1] This is a motion in writing under Rule 369 of the Federal Courts Rules brought by the Minister of Citizenship and Immigration. The Minister requests the Court to dismiss for mootness the appellants’ appeal from an order of Justice Mosley of the Federal Court, dated April 10, 2006. Justice Mosley’s order states that their application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board is dismissed in respect of certain issues which he had decided.
[2] In that decision, dated May 5, 2005, the Board had dismissed the claim of Shurlyn Cathy Jones, the principal claimant, and her daughter, Shurnikay, to be recognized in Canada as refugees.
[3] Prior to Justice Mosley’s decision, there were a number of applications for judicial review in the Federal Court raising an important question of law affecting many cases before the Board, namely, the validity of a procedural guideline (“Guideline 7”) issued by the Chair of the Board under the power conferred by paragraph 159(1)(h) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[4] Guideline 7 provides for “reverse order questioning” of a refugee claimant: that is, the Refugee Claims Officer questions the claimant before the claimant’s lawyer. In the Federal Court, the applicants argued that the Guideline was invalid on various Charter and administrative law grounds, including procedural unfairness, the deprivation of Board members’ adjudicative independence, and the fettering of their discretion.
[5] Nineteen of these applications, including the appellants’, were consolidated and heard together by Justice Mosley on March 7-8, 2006. On April 10, 2006, he rendered his decision finding that Guideline 7 was valid and certified that each application involved the same seven serious questions of general importance pursuant to paragraph 74(d) of the Act. The order dismissed the application for judicial review “with respect to the issues heard by the Court” at the hearing held on March 7-8, 2006. Justice Mosley’s decision is reported as Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461.
[6] Like several of the nineteen applicants, the appellants also challenged the validity of the Board’s rejection of their claim on other grounds, which were set down to be heard in separate hearings before different Judges of the Federal Court. The “non-Guideline 7” aspects of the appellants’ application for judicial review were heard by Justice Snider on March 21, 2006.
[7] In a decision bearing the same date as Benitez, April 10, 2006, Justice Snider found that the Board had committed a number of reviewable errors unconnected with Guideline 7, allowed the appellants’ application for judicial review, quashed the Board’s decision and remitted the matter for re-determination by a differently constituted panel of the Board.
[8] In her order, Justice Snider directed the Board to defer the hearing of the appellants’ claim “until any appeal of the decision regarding other aspects of this application for judicial review is disposed of in the Federal Court of Appeal or the time in which a party may file a Notice of Appeal to that Court has expired, whichever last occurs.” Justice Snider’s decision is reported as Jones v. Canada (Minister of Citizenship and Immigration), 2006 FC 405.
[9] On April 21, 2006, the appellants filed their notice of appeal in this Court from the decision of Justice Mosley. The Minister filed the present notice of motion on July 18, 2006.
[10] In support of the motion to dismiss, the Minister says that the appellants’ appeal from the order of Justice Mosley is moot, on the ground that Justice Snider granted the very relief which the appellants would obtain if their Guideline 7 appeal succeeded, namely, a quashing of the Board’s refusal of their refugee claims and a remittal to the Board for re-determination. The appellants raise three issues in response to the motion to dismiss their appeals.
[11] First, they argue that the Crown’s motion should be dealt with on the basis of an oral hearing, not the written submissions from the parties under Rules 369. They submit that if the Minister’s motion were granted, they would be deprived of an important right, namely the right to appeal against the decision of Justice Mosley. Further, they allege, the issues raised by the motion are sufficiently complex that they can only be properly explored at an oral hearing.
[12] I do not agree. Rule 369 imposes no express limits on the exercise of the Court’s discretion to dispose of a motion under Rule 369 in writing or after an oral hearing. Neither the text of the Rule nor the jurisprudence supports the position that motions to dismiss an appeal may not be determined on the basis of written submissions. Rather, the Court exercises its discretion by asking whether, in all the circumstances of the given case, it can fairly dispose of the motion without the delay and additional expense of an oral hearing.
[13] The questions in dispute on this motion are purely legal and, in my opinion, not unduly complex. None of the factors listed by Prothonotary Hargrave in Karlsson v. Canada (Minister of National Revenue) (1995), 97 F.T.R. 75 at para. 10, as warranting an oral hearing is present here.
[14] I am satisfied that, assisted by the full and able written submissions of counsel for the parties, I am in a position to dispose fairly of the motion without an oral hearing, whether held at the beginning of the hearing of the appeals, or at any other time.
[15] Second, the appellants argue that, when Justice Mosley dismissed their application for judicial review on the Guideline 7 issues, and certified questions for appeal, they had an unqualified right to appeal his decision. This right could not be removed by the order of Justice Snider allowing the application for judicial review and quashing the Board’s decision. They had, they argue, only one application for judicial review before the Federal Court, a fact that was not altered when the Court bifurcated the application by separating the Guideline 7 issues from the other grounds on which they sought to have the Board’s decision quashed.
[16] I agree that the appellants had only one application for judicial review before the Federal Court, which the Court bifurcated in order to enable it to deal efficiently and fairly with the pressing problem caused by the large number of cases raising the same general legal issue about the propriety of an important and pervasive aspect of the Board’s process.
[17] When Justice Mosley rejected the attack made by the applicants, including the present appellants, on the validity of Guideline 7, and certified questions for appeal, it is clear from his order that he was not disposing finally of the application for judicial review, but only dismissing it on the Guideline 7 issues. Justice Snider’s order finally disposed of the application by granting it.
[18] The basic problem with the appellants’ position is that, having been granted the relief by Justice Snider that they sought in their application, they, in effect, want to appeal against Justice Mosley’s reasons. While the parties do not dispute that Justice Mosley’s order dismissing the application on certain issues is an order from which the appellants may appeal, that appeal is rendered moot by the order of Justice Snider.
[19] The appellants cannot have it both ways. They cannot both claim the benefit of Justice Snider’s order for the purpose of having their case re-heard by the Board, and, at the same time, assert that they have the right to challenge Justice Mosley’s order denying them the relief which Justice Snider granted.
[20] I am satisfied that the procedure creatively adopted by the Federal Court for dealing with multiple applications raising, among others, a single issue, does not result in any unfairness to the appellants. I find it inconceivable that the Board would proceed with the hearing of the appellants’ claim before this Court disposes of the appeals from Justice Mosley’s order which go forward. It is immaterial that Justice Snider’s direction to the Board to defer the hearing of the appellants’ claim may appear to assume that the appellants’ appeal will proceed, when, as result of the Court’s order disposing of this motion, it will not.
[21] Since other appeals from Justice Mosley’s order will be heard by this Court, dismissing the appellants’ appeal does not preclude the Court from determining the validity of Guideline 7. Indeed, I understand that the Court is likely to receive submissions from the appellants’ counsel who is representing other appellants in the Guideline 7 appeals. If these appeals are successful, the Board will re-determine the present appellants’ refugee claim in the light of this Court’s decision.
[22] True, the appellants may be adversely affected by a decision of this Court upholding the validity of Guideline 7, a question on which they will not have been heard by this Court. However, it is in the nature of adjudication, and the doctrine of precedent, that a decision of one court may effectively determine the rights of third parties in other proceedings. Moreover, since their counsel is representing other appellants, the present appellants will indirectly have the benefit of his submissions.
[23] In brief, the appellants’ position is not materially different from what it would have been if all the issues in their application for judicial review had been heard and decided by one judge, who found against them on the Guideline 7 issue, but allowed their application on other grounds.
[24] Accordingly, the appellants’ appeal is moot and no useful purpose would be served if, in the exercise of the Court’s discretion, I allowed it to proceed.
[25] Third, the appellants ask for costs, whether or not the Minister’s motion is granted, on the ground that the Minister did not file this motion until July 18, 2006, more than three months after the appellants had filed their notice of appeal. The Minister must have been aware that, by mid-July, counsel would have done a lot of work preparing for the appeal. Counsel filed the appellants’ appeal book on July 24, 2006, after obtaining from counsel for the Minister a short extension of time, on condition that the appellants’ counsel filed his memorandum of fact and law no later than August 12, 2006. In these circumstances, counsel argues, the appellants should be awarded costs on a solicitor-client basis in respect of this motion.
[26] Costs are not awarded in proceedings arising under the Immigration and Refugee Protection Act, unless “for special reasons” the Court so orders: Federal Court Immigration and Refugee Protection Rules, SOR/93-22, section 22.
[27] Despite counsel’s submissions, I am not persuaded that the circumstances of this case constitute “special circumstances”. In my opinion, the appeal was fundamentally misguided and, having decided to pursue it, the appellants must be taken to have assumed the risk that the normal costs consequences would follow. The benefit of section 22 was available to the appellants if their appeal failed on its merits; that benefit does not become a burden when their appeal is dismissed summarily.
[28] For these reasons, I would grant the motion and dismiss the appeal for mootness.
“John M. Evans”
“I agree.
J. Richard C.J.”
“I agree.
J.D.Denis Pelletier J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-173-06
STYLE OF CAUSE: Shurlyn Cathy Ann Jones; Shurnikya Jones v. The Minister of Citizenship and Immigration
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Evans J.A.
CONCURRED IN BY: Richard C.J.
Pelletier J.A.
WRITTEN REPRESENTATIONS BY:
|
FOR THE APPELLANTS
|
|
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Galati, Rodrigues & Associates Toronto, Ontario |
FOR THE APPELLANTS
|
|
Deputy Attorney General of Canada |
FOR THE RESPONDENT
|