A-938-96
CORAM: STRAYER J.A.
ROBERTSON J.A.
McDONALD J.A.
B E T W E E N:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
" and "
ADRIAN MACARTNEY FORDE
Respondent
HEARD at Toronto, Ontario, on Monday, March 17, 1997.
JUDGMENT delivered from the Bench at Toronto, Ontario, on Monday, March 17, 1997.
REASONS FOR JUDGMENT BY: STRAYER, J.A.
A-938-96
CORAM: STRAYER J.A.
ROBERTSON J.A.
McDONALD J.A.
B E T W E E N:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
" and "
ADRIAN MACARTNEY FORDE
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto,
Ontario, on March 17, 1997)
STRAYER J.A.
We are all of the view that the motion to quash the appeal must be dismissed and the appeal of the Minister of Citizenship and Immigration must be allowed.
The appeal is against a decision of Cullen J. of the Trial Division dated November 21, 1996, in which he ordered that a "stay currently exists in this case and the respondent's application [for reconsideration] is dismissed with costs in the cause".
On December 20, 1994, a deportation order was made against the respondent Forde. He appealed that decision to the Appeal Division of the Immigration and Refugee Board but before the appeal was heard subsection 70(5) of the Act was enacted1 which prohibited the continuation of an appeal from such a deportation order, if not yet heard, where the Minister is of the opinion that the person in question constitutes a danger to the public in Canada. The same legislation provided that in lieu of such appeal in these circumstances the person ordered deported could seek judicial review of the deportation order.
On January 16, 1996 the Minister made such an order in respect of the respondent Forde. On February 2, 1996, Forde filed an application for leave to seek judicial review, not of the deportation order but of the Minister's order determining him to be a danger to the public.
On March 18, 1996, McKeown J. of the Trial Division issued a stay of deportation to last
| until such time as the application for judicial review is finally disposed of. |
As a challenge to the Minister's order could affect the appealability of the deportation order, McKeown J.'s stay order was clearly ancillary to the leave application then pending and was authorized, inter alia, by section 18.2 of the Federal Court Act.
On August 30, 1996, Cullen J. dismissed the application for leave and thus terminated any judicial review proceeding. By its terms the original stay as properly granted by McKeown J. came to an end with the end of the leave proceedings.
However Forde sought, and Cullen J. granted on September 12, 1996, a "continuation" of the already terminated stay
| until such time as a question for certification re: section 70(5) is determined by the Federal Court of Appeal. In the event that such a question has not been certified and will not be certified in the Williams case, the stay of execution shall be terminated. |
This was later amended on October 9, 1996, in an application for "reconsideration" of Cullen J.'s August 30 dismissal of the application for leave, by altering the closing sentence to read
| In the event that such question has not been certified and will not be certified in the Williams case, then an application may be brought by the respondent requesting that the stay be lifted. |
When the Minister subsequently applied for a new "reconsideration" of Cullen J.'s order of October 9 and a declaration that the stay no longer existed, the learned judge made the order of November 21, 1996 now appealed from in which the continuation of the stay was purportedly confirmed.
In confirming that the stay continued notwithstanding the dismissal of the leave application Cullen J. stated the following in his reasons:
| In my view, McKeown, J. made it quite clear that the stay would be extended until the matter of the application for judicial review was finally disposed of and I have indicated it is still ongoing with the decision to be made in the Williams case as the determinate for the end of the stay period (depending of course on the decision to made by the Federal Court of Appeal). |
We understood the phrase "it is still ongoing" to refer to Forde's application for leave, and the learned judge was thus saying that such application would somehow continue until the Williams case was decided. This is clearly inconsistent with his order issued on August 30, 1996 that the leave application be dismissed.
The Trial Division has a carefully defined judicial review jurisdiction in respect of "any decision or order made, or any matter arising, under [the Immigration] Act".2 The decision of the Minister under subsection 70(5) is such a decision. During the course of disposing of an application for leave to seek judicial review of such a decision the Court is authorized by section 18.2 of the Federal Court Act to make ancillary orders, such as a stay order, "pending the final disposition of the application". Here the leave application was disposed of on August 30, 1996 and at this point the stay issued by McKeown J. as a matter of law as well as by its own terms came to an end. Even if the later applications for reconsideration could arguably have kept the leave application alive, those applications were all finally dismissed by November 21, 1996. By that time, at the very latest, the Trial Division was functus officio in relation to the deportation order.
There was thus no longer a leave or review proceeding to which the stay could be ancillary under section 18.2 of the Federal Court Act. The rationale for its grant was apparently that, although there were no new decisions to be awaited in Forde's case, something might turn up in his favour if the Federal Court of Appeal were to find, in the Williams case, that the power conferred on the Minister to make orders against someone else under subsection 70(5) is unconstitutional. Paragraph 50(1)(b) of the Federal Court Act, invoked by Forde here, was never in our view intended to give a general mandate to the Trial Division to stop deportations which are no longer under attack in the Court, directly or indirectly, just because some day there might be jurisprudence more favourable to a deportee. If this were permitted under section 50, litigants having lost in an application for leave or for judicial review, and having failed to obtain or declined to seek the certification of questions for appeal, could nevertheless negate the effects of the court decision by seeking a stay based on the prospects of others in their litigation.
For these reasons the stay as continued by the order of November 21, 1996 is invalid and must be set aside. The appeal was properly brought without a question having been certified as the putative stay was no longer related to any application for leave proceeding under subsection 82.1(1) of the Immigration Act. An appeal is therefor not barred by section 82.2.
There will be no order as to costs on the appeal or the application as the Minister has requested none. We regard the motion judge's award to Forde of "costs in the cause" to be a nullity, there being no continuing "cause" to whose disposition they can attach.
| "Barry L. Strayer" |
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: A-938-96
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
| ADRIAN MACARTNEY FORDE |
DATE OF HEARING: MARCH 17, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STRAYER, J.A.
Delivered from the Bench at Toronto, Ontario
on Monday, March 17, 1997
APPEARANCES:
Mr. Stephen H. Gold
For the Appellant
Mr. Osborne G. Barnwell
For the Respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
For the Appellant
FERGUSON, BARNWELL
Barristers & Solicitors
National building
347 Bay Street, Suite 502
Toronto, Ontario
M5H 2R7
For the Respondent
FEDERAL COURT OF CANADA
Court No.: A-938-96
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Appellant
- and -
| ADRIAN MACARTNEY FORDE |
Respondent
REASONS FOR JUDGMENT
__________________
1 S.C. 1995, c.15, s.13.
2 R.S.C. 1985, c.I-2, ss.82.1(1).