Federal Court of Appeal Decisions

Date: 20160923

Docket: A-205-15

Citation: 2016 FCA 237

CORAM:       NADON J.A.

RENNIE J.A.

GLEASON J.A.

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on September 23, 2016.

Date: 20160923

Docket: A-205-15

Citation: 2016 FCA 237

CORAM:       NADON J.A.

RENNIE J.A.

GLEASON J.A.

REASONS FOR ORDER

NADON J.A.

[1]               Before us is a motion brought by the appellant for an order, pursuant to Rule 399 of the Federal Courts Rules, SOR/98-106, setting aside this Court’s judgment of April 29, 2016 (2016 FCA 134) which dismissed his appeal of a decision of the Federal Court (2015 FC 329) which had previously dismissed his application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada.

[2]               The appellant also seeks an order reconvening the hearing of the appeal before a new panel or, in the alternative, an order pursuant to Rule 397 setting aside that part of our judgment which granted costs to the respondent.

[3]               For the reasons that follow, I conclude that the motion should only be allowed in respect of the granting of costs to the respondent.

[4]               I begin by reproducing Rules 397 and 399 upon which the appellant relies in making this motion.

[emphasis added]

[5]               We heard this appeal in Vancouver on April 19, 2016 and, at the end of the hearing, we reserved our judgment.

[6]               On April 28, 2016, counsel for the appellant wrote to the Court requesting the opportunity of making representations with respect to this Court’s decision in MCI v. Bermudez, 2016 FCA 131, 483 N.R. 115 (Bermudez) rendered on April 27, 2016.

[7]               On April 29, 2016, we signed a judgment and reasons for judgment which dismissed the appellant’s appeal with costs. Accordingly, on that day, the judgment and the reasons were sent to the registry of the Court for filing and communication to the parties. I should point out that when we signed the judgment and reasons, counsel for the appellant’s letter of April 28, 2016 had not yet been brought to our attention by the Registry. I should also point out that at that time we were not aware of the Court’s decision in Bermudez.

[8]               On May 2, 2016, after the letter of April 28, 2016 had been brought to our attention, Rennie J.A. issued a direction to the parties pursuant to which they were asked to provide submissions regarding Bermudez within certain delays namely May 4, 2016 for the appellant and May 6, 2016 for the respondent. Prior to the making of his direction, Rennie J.A. had been advised by the Registry that the judgment had not yet issued.

[9]               Following the issuance of his May 2, 2016 direction, Rennie J.A. was informed by the Registry that contrary to the information that he had previously received, the judgment had been transmitted to the parties on April 29, 2016 and that the reasons had been transmitted in part. As a result, Rennie J.A. issued a further direction on May 9, 2016 advising the parties that because judgment had been issued on Friday, April 29, 2016, the Court would not entertain further submissions from the parties.

[10]           First, the appellant says that the discovery of Bermudez, which this Court rendered on April 27, 2016 and which he brought to the Court’s attention on April 28, 2016, constitutes “a matter that arose or was discovered subsequent to the making of the order” (Rule 399(2)(a)). Hence, the appellant argues that it is open to this Court to set aside or vary the judgment of April 29, 2016.

[11]           Second, the appellant says, in the alternative, that pursuant to Rule 397(2), this Court should reconsider the order of costs made against him.

[12]           I will deal first with the appellant’s submission that pursuant to Rule 399(2)(a), we should set aside or vary our judgment of April 29, 2016. Rule 399(2)(a) is an exception to the principle that decisions rendered by a Court are final. In Collins v. Canada, 2011 FCA 171, 421 N.R. 201, Mainville J.A., writing for the Court, made this point as follows at paragraph 12 of his reasons. He made it clear that Rule 399(2)(a) could not be used

…as a vehicle for revisiting judgments every time a litigant is unsatisfied with a judgment. The general principle is that judicial decisions are final, and consequently the setting aside of such a decision under paragraph 399(2)(a) of the Rules must be based on exceptionally serious and compelling grounds. This is necessary to ensure certainty in the judicial process as well as to preserve the integrity of that process.

[13]           The question is then whether the discovery of Bermudez by counsel for the appellant and his communication of that decision to this panel constitutes a matter that arose or was discovered subsequent to the making of the April 29, 2016 judgment, thus opening the door to the setting aside or variance of the judgment. In my view, it does not. Again, I wish to make it clear that this panel only became aware of Bermudez when it received counsel for the appellant’s letter of April 28, 2016, i.e. after the judgment of April 29, 2016 was signed and sent to the Registry.

[14]           In making his submissions that the discovery of Bermudez constitutes “a matter” within the meaning of Rule 399(2)(a), counsel relies on the decision of Mr. Justice Blais (as he then was) in Velupillai v. Canada (MCI), 2001 88 F.T.R. 314, 2000 CanLII 15997 (Velupillai). In particular, he refers to paragraphs 9 to 11 and 13 of Mr. Justice Blais’ decision where he says:

[9]        When I signed the decision on June 15, 2000, I was not yet aware of the decision rendered in Haghighi by the Federal Court of Appeal, three days before.

[10]      Given the number of decisions rendered by the Trial Division and by the Appeal Division, it takes a few days before being aware of these judgments and unfortunately, I read that decision after my decision of June 15, 2000 was rendered.

[11]      I am convinced that the applicant is right when he argues that the Federal Court of Appeal’s decision in Haghighi could have had an impact on my decision on the leave application.

[13]      I should also mention that this is an unusual situation and I have no hesitation to decide that Rule 399(2)(b) applies in the circumstances and the Court of Appeal’s decision in Haghighi is a matter that was discovered subsequent to the making of the order.

[15]           With respect, it is my view that Mr. Justice Blais was wrong in concluding as he did in Velupillai. In Ayangma v. Canada, [2004] 313 N.R. 312, 2003 F.C.A. 382 (Ayangma), there was a motion before our Court brought by the applicant for an order setting aside a previous order of the Court made on March 20, 2003 which had dismissed his appeal. The basis of the applicant’s motion was that he had discovered jurisprudence which, in his view, was determinative of his appeal.

[16]           After setting out Rule 399(2) and enunciating the criteria which had to be satisfied before the Court would intervene, Pelletier J.A., writing for the Court, made the following remarks at paragraph 4 of his reasons:

We are not persuaded that the "matter" referred to in Rule 399 ("faits nouveaux" in the French version of the text) refers to jurisprudence. In Metro Can Construction Ltd. v. Canada, [2001] F.C.J. No. 1075 (F.C.A.), this Court decided that subsequent jurisprudence of our Court or of a higher Court does not constitute a "matter" that arose subsequently to the making of the order, within the meaning of Rule 399(2). Notwithstanding the decision of the Federal Court - Trial Division (as it then was) in Jhajj v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 369, it follows from this that jurisprudence existing at the time of the order cannot be a matter that arose subsequent to the decision. To hold otherwise would deprive all judgments of finality and would invite litigants to research their case after judgment was rendered.

[emphasis added]

[17]           In my view, Ayangma stands for the proposition that jurisprudence, whether existing prior to or after the decision at issue, does not constitute a “matter” within the meaning of Rule 399(2)(a).

[18]           As a result, I am of the view that the appellant cannot succeed on his request that the judgment of April 29, 2016 be set aside or that the hearing of the appeal be reconvened before a new panel.

[19]           I now turn to the appellant’s alternative argument that the judgment be varied pursuant to Rule 397. In making his submission that the order of costs made against him be set aside, the appellant relies on Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 which provides as follows:

[20]           In my view, the appellant is correct in making his submission on costs. We made no finding that there were special reasons to grant costs against the appellant. We simply overlooked Rule 22 and consequently, it is open to us pursuant to Rule 397(2) to reconsider that part of our judgment. Hence, the judgment of April 29, 2016 shall be varied in regard to the issue of costs.

[21]           For these reasons, the appellant’s motion will be allowed in part. Consequently, the judgment of April 29, 2016 shall be varied to read as follows: “The appeal is dismissed and the certified question is answered in the affirmative”.

"M. Nadon"

“I agree.

Donald J. Rennie J.A.”

“I agree.

Mary J.L. Gleason J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: