Date: 19990618
Dockets: IMM-4204-98
T-1767-98
BETWEEN:
MANSOUR AHANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
MANSOUR AHANI
Plaintiff
and
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Defendants
REASONS FOR ORDER AND ORDER
ON PRELIMINARY MOTION
[Delivered from the Bench at Toronto, Ontario
on Tuesday, June 15, 1999]
McGILLIS J.
[1] At the outset of the proceedings, counsel for the respondent, Mr. James Leising, made a preliminary motion requesting the Court to adopt the recent decision of McKeown J. in Suresh v. Minister of Citizenship and Immigration(File No. IMM-117-98, June 11, 1999), insofar as it decides the same constitutional issues raised in the present cases.1 In particular, he submitted that I am bound to follow the decision of McKeown J., unless the applicants can demonstrate that the facts in the present cases differ materially from those in Suresh v. Minister of Citizenship and Immigration, supra, or that the decision is manifestly wrong. In support of his position, Mr. Leising relied on the cases Janssen Pharmaceutical Inc. v. Apotex Inc. (1997), 72 C.P.R. (3d) 179 (F.C.A.); Eli Lilly and Co. v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 377 (F.C.A.), reversed on other grounds [1998] 2 S.C.R. 129; and Glaxo Group Ltd. v. Canada (Minister of National Health and Welfare (1996), 64 C.P.R. (3d) 65 (F.C.T.D.).
[2] In response, counsel for the applicant, Mr. Lorne Waldman, submitted that the principle of stare decisis did not apply to judges of the same Court exercising concurrent jurisdiction. He further submitted that, given the requirement in subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended to certify a question for appeal, the applicants would suffer prejudice in the event that McKeown J. did not certify a question for appeal in Suresh v. Minister of Citizenship and Immigration, supra.2 Finally, he submitted that the cases relied on by counsel for the respondent were distinguishable in that the present cases raise issues of fundamental human rights and complex questions concerning the Canadian Charter of Rights and Freedoms. Despite those submissions, Mr. Waldman nevertheless candidly submitted that it would not be an efficient use of resources to re-litigate exactly the same constitutional issues as decided in Suresh v. Minister of Citizenship and Immigration, supra. However, absent an agreement with counsel for the respondent to apply the certified questions, if any, in Suresh v. Minister of Citizenship and Immigration, supra, to the present cases, Mr. Waldman had to protect the interests of the applicants/plaintiffs by opposing the preliminary motion advanced by counsel for the respondent.
[3] In order to decide the preliminary motion raised by counsel for the respondent, reference must be made to the jurisprudence.
[4] In Glaxo Group Ltd. v. Canada (Minister of National Health and Welfare), supra, Richard J. (as he then was) considered whether he was bound, by reasons of judicial comity, to apply a decision of Noël J. (as he then was) on one of the identical issues raised before him. In reviewing the principle of judicial comity and its application, Richard J. stated as follows:
The principle of judicial comity has been expressed 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. (Bell v. Cessna Aircraft Co. (1983), 149 D.L.R. (3d) 509 at p. 511, 36 C.P.R. 115, [1983] 6 W.W.R. 178 (B.C.C.A.).) |
| A similar position was taken by Mr. Justice Jackett, President of the Exchequer Court, in Canada Steamship Lines Ltd. v. M.N.R., [1966] Ex. C.R. 972 at p. 976, [1966] C.T.C. 255, 66 D.T.C. 5205: |
| I think I am bound to approach the matter in the same way as the similar problem was approached in each of these cases until such time, if any, as a different course is indicated by a higher Court. When I say I am bound, I do not mean that I am bound by any strict rule of stare decisis but by my own view as to the desirability of having the decisions of this Court follow a consistent course as far as possible. |
| In R. v. Northern Electric Co. (1955), 24 C.P.R. 1 at p. 19, [1955] 3 D.L.R. 449, [1955] O.R. 431 (H.C.), McRuer C.J.H.C. stated: |
| Having regard to all the rights of appeal that now exist in Ontario, I think Hogg J. stated the right common law principle to be applied in his judgment in R. ex rel. McWilliam v. Morris, [1942] O.W.N. 447 where he said: "The doctrine of stare decisis is one long recognized as a principle of our law. Sir Frederick Pollock says, in his First Book of Jurisprudence, 6th ed., p. 312: "The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority nor on that court itself, will be followed in the absence of strong reason to the contrary"." |
| I think that "strong reason to the contrary" does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reason to the contrary" is to be construed according to the flexibility of the mind of the particular Judge. |
[5] Following his review of the jurisprudence, Richard J. concluded that counsel opposing the motion had failed to establish that Noël J. was "manifestly wrong" in his decision. He also noted that, although counsel opposing the motion had "argumentative reasons" in support of his position, they were not "strong reasons" not to follow the decision of Noël J. "...who gave detailed reasons during which he considered the authorities and relevant legislation." In short, Richard J. applied the decision of Noël J. At the time of his decision, both Richard J. and Noël J. were judges of the Trial Division.
[6] In Eli Lilly and Co. v. Novopharm Ltd., supra, the Federal Court of Appeal cited with approval Richard J."s decision in Glaxo Group Ltd. v. Canada (Minister of National Health and Welfare), supra , in support of the following statement:
| [1] In our view, however, while the decision in that case is not res adjudicata it is binding on the court unless it can be distinguished on its facts or it is manifestly wrong because the court overlooked a statutory provision or a case that ought to have been followed. |
| [7] Finally, in Janssen Pharmaceutica Inc. v. Apotex Inc., supra, the Federal Court of Appeal adopted and applied a decision of another panel of the Federal Court of Appeal on an identical question in a different case even though it was not binding on it per se. In its analysis, the Federal Court of Appeal stated as follows: |
| The Court"s decision in that case is obviously not res judicata and while it is not binding on us per se, reasons of judicial comity or stare decisis invite us to follow it unless material facts are shown to be distinguishable or absent some demonstration that the previous decision of this Court was manifestly wrong for having overlooked a statutory provision or a case that ought to have been applied or followed ... . |
[8] Following my review of the jurisprudence and the submissions of counsel, I have concluded that I ought to adopt and apply, for reasons of judicial comity, the decision of McKeown J. in Suresh v. Minister of Citizenship and Immigration, supra, to the extent that it decides the same constitutional issues raised in the present proceedings. In arriving at my decision, I have not been persuaded that the material facts in Suresh v. Minister of Citizenship and Immigration, supra are distinguishable from those in the present cases, or that McKeown J."s decision was manifestly wrong in that he overlooked a statutory provision or a relevant case.
[9] Although I have decided to adopt and apply the reasoning of McKeown J. in Suresh v. Minister of Citizenship and Immigration, supra, to the extent that it decides the same constitutional issues raised in the present cases, the matter of the certification of any question for the purposes of an appeal remains at law entirely within my discretion as the presiding judge in the present cases. Accordingly, counsel for the parties will be provided with an opportunity, at the appropriate time, to make submissions on the certification of any questions in relation to the constitutional issues.
[10] IT IS ORDERED THAT the decision of McKeown J. in Suresh v. Minister of
Citizenship and Immigration, supra is adopted and applied, to the extent that it decides the constitutional issues raised in the present cases.
[11] I will now proceed to hear the remaining issues in the present application for judicial review, as well as those in IMM-6546-98, Singh v. Minister of Citizenship and Immigration.
| D. McGillis |
Judge
Ottawa, Ontario
June 18, 1999
__________________1The present application for judicial review in IMM-4204-98 and the action in T-1767-98 were scheduled to be heard together with the application for judicial review in IMM-6546-98, Singh v. Minister of Citizenship and Immigration , and the action in IMM-4825-98, Singh v. The Queen et al.
2As of the date of this hearing, McKeown J. had not yet dealt with the issue of the certification of any questions for appeal, and had not signed his formal order in Suresh v. Minister of Citizenship and Immigration, supra.