Date: 19980925
Docket: T-911-98
BETWEEN:
WAI YUEN AU,
Applicant/Appellant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J:
[1] The Minister of Citizenship and Immigration ("the Minister") seeks an order granting leave to file a notice of appearance and directing that this application proceed pursuant to Part V of the new Federal Court Rules, 1998. The notice of appeal was filed on April 23, 1998, but transmitted to the Minister's officials after April 25, 1998. The new Federal Court Rules,1998 came into force on April 25, 1998. On June 17, 1998, counsel for the Minister arranged for a notice of appearance to be served on the applicant/appellant's counsel but the Registry of the Federal Court refused to accept it.
[2] The issue to be resolved is whether the old Rules or the new Rules apply to this case.
[3] In Canada (Minister of Citizenship and Immigration) v. Chan1, my colleague Rothstein J. dealt with one of the first hearings of a citizenship appeal after the coming into force on April 25, 1998, of the Federal Court Rules, 19982. He noted that under Rule 912 of the old Federal Court Rules, citizenship appeals took the form of a trial de novo whereas under the new Rules, paragraph 300(c) provides that Part V (dealing with applications) applies to citizenship appeals under subsection 14(5) of the Citizenship Act3 ("the Act"). The appellant's counsel submitted that the old Federal Court Rules were repealed by Rule 503 and the new Rule 501(1) provides that the new Rules apply to all proceedings, including further steps in proceedings filed before the coming into force of the new Rules.
[4] The learned judge considered paragraph 44(c) of the Interpretation Act4 which stipulates that where a "former enactment" is repealed and another enactment called the "new enactment" is substituted therefor, every proceeding shall be continued consistently with the new enactment5. He then referred to paragraph 43(c) of the Interpretation Act which provides as follows:
| 43. Where an enactment is repealed in whole or in part, the repeal does not |
| (c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed. |
[5] Rothstein J. concluded that Rule 501(1) must not in its application affect rights accrued or accruing when the old Rules cease to have effect. He said as follows:
| The old Rules provided for an appeal by trial de novo in which the parties had a right to adduce evidence, while the new rules provide for an appeal by way of application on the basis of the Citizenship Court record. Rule 501(1) does not take away the right to an appeal by way of trial de novo under the old Rules where that right accrued or was accruing at the time the old Rules ceased to have effect. |
| [para5] Further, there is a practical difficulty with the appellant's approach. Persons who have filed citizenship appeals substantially prior to the coming into force of the Federal Court Rules, 1998, had the right to expect they would be entitled to a trial de novo. They have not complied and, because of time limits, in many cases could not comply, with the requirements of the Federal Court Rules, 1998 to file affidavits and other materials required under Part 5 of the new Rules. If such persons are now denied a trial de novo, they will have no way of putting relevant evidence before the Court unless the Court grants adjournments and extends time limits to enable them to comply with the new Rules. |
| [para6] I do not think that Rules 501(1) and 503 are to be interpreted as having the effect of treating a citizenship appeal filed before the coming into force of the new Rules as if it was filed after the coming into force of these Rules. Nor do the new Rules imply that there are to be automatic orders to extend time to file affidavits or other material in order to comply with the new Rules in the case of applications that were filed before the new Rules came into effect. |
| [para7] For these reasons, I conclude that the hearing in citizenship appeals, where the appeal was filed in this Court before the coming into force of the Federal Court Rules, 1998, should proceed by way of trial de novo and that Part 5 of the Federal Court Rules, 1998 should apply to citizenship appeals filed in the Court after the coming into force of the new Rules. |
[6] In a subsequent decision, my colleague Reed J. in Canada (Minister of Citizenship and Immigration) v. Lok6 was invited by the appellant, the Minister, to reach a different conclusion from that reached by Mr. Justice Rothstein. She declined to do so. She added that the particular circumstances of her case make the application of the new Rules to it completely inappropriate. She said as follows:
| [para6] While the transitional provision in Rule 501(1) provides for the application of the new Rules to an existing proceeding, [See Note 1 below] the amended Rules are intended to apply prospectively from the date of their coming into force and not to abrogate or replace procedural steps that have already been completed. This provision must also be read in light of the Interpretation Act, R.S.C. 1985, c. I-21, sections 43 and 44 [See Note 2 below] which provide that new provisions apply only in so far as they can be adapted to a proceeding taken under the former enactment. In the present proceeding, as of April 25, 1998, there were no procedural steps remaining to which the new Rules could sensibly apply. As of that date, the procedure that had been followed by the parties and that ordered by the Court were based on an appeal that has often been described as a de novo hearing. The appeal should proceed on that basis. |
[7] While in both of these decisions the parties had substantially completed all the steps leading to the hearing before April 25, 1998, nevertheless, Mr. Justice Rothstein, in his decision, concluded in broader terms that "the hearing in citizenship appeals, where the appeal was filed in this Court before the coming into force of the Federal Court Rules, 1998, should proceed by way of trial de novo and that Part V of the Federal Court Rules, 1998 should apply to citizenship appeals filed in the Court after the coming into force of the new Rules".
[8] In other words, it is the date of the filing of the appeal that is material and not necessarily the completion of all the preliminary steps under the old Rules. Moreover, once an appeal has been launched under the old Rules, it would be very difficult to establish a cut-off date when the new Rules could apply. The new Rules call for the filing of a notice of application to be served 10 days after filing and requires the applicant to file supporting affidavits and documentary exhibits within 30 days of the filing of the notice. Thus, the new Rules set out an interrelated series of procedural steps which cannot be easily accommodated to the former system of citizenship appeals.
[9] Thus, the logical conclusion is to follow the provisions of sections 43 and 44 of the Interpretation Act and to protect the rights of those who have filed their appeals in accordance with the Act before April 25, 1998.
[10] Consequently, in the instant matter, since the applicant/appellant filed his appeal before April 25, 1998, the Registry of the Federal Court properly refused to accept the filing of the notice of appearance of the Minister. Thus, the Minister's application is denied.
OTTAWA, Ontario
September 25, 1998
Judge
__________________1 [1998] F.C.J. No. 742, Court File No. T-2842-96.
5 44. (c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment.