Date: 20030312
Docket: A-133-03
Neutral citation: 2003 FCA 139
PRESENT: ROTHSTEIN J. A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
LAURENTIU DRAGAN
Respondent
Heard at Toronto, Ontario, on March 12, 2003.
Order delivered from the Bench at Toronto, Ontario,
on March 12, 2003.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20030312
Docket: A-133-03
Neutral citation: 2003 FCA 139
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
LAURENTIU DRAGAN
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on March 12, 2003.)
[1] This is a motion to expedite the hearing of an appeal of the judgment of Kelen J. of February 21, 2003, ordering writs of mandamus requiring the Minister to assess 102 applicants for immigrant visas in accordance with the Immigration Regulations, 1978, SOR/78-172 (the former regulations).
[2] The appeal is filed pursuant to a question being certified for appeal by Kelen J. on March 7, 2003. By virtue of Kelen J.'s Order and subsection 361(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (IRPR), brought into force on June 28, 2002, these assessments must be made on or before March 31, 2003.
[3] The Minister says that Kelen J. erred in finding that the Minister had an implied duty to use his reasonable best efforts to assess these applications before March 31, 2003. Further, he says that Kelen J.'s order requires the Minister to follow recommendations of a standing committee of Members of Parliament, which has never been the basis of a public law duty on a Minister. The Minister says these are important questions of principle that this Court should decide on appeal.
[4] On or before March 31, 2003, the Minister has a right to appeal by virtue of the certified question for appeal having been ordered by Kelen J.. However, after March 31, 2003, the regulatory basis in subsection 361(3) of the IRPR for the writs of mandamus will no longer have application. The Minister says that will render the appeals subject to objection on account of mootness. Even if the respondents do not raise mootness, the Court of its own motion could simply refuse to hear and decide the appeal because it is moot after March 31, 2003. The Minister therefore says that his appeal right may be rendered nugatory, and he will therefore suffer irreparable harm, if the motion to expedite is not granted and the appeal is not scheduled to be heard before March 31, 2003.
[5] The respondents raise a number of objections. They say the appeal will be more complex than the Minister indicates. Kelen J.'s implied duty reasoning was not argued by the respondents before him and they will have to do research to support Kelen J.'s finding. They also say that they will argue that Kelen J. erred in finding that section 190 of Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) had retroactive or retrospective effect. In addition, they say they intend to cross-appeal in respect of the 22 applications that Kelen J. dismissed.
[6] Counsel for the respondents also submits that by reason of subsection 361(3) of the IRPR and the Order of Kelen J., they are, over the period between now and March 31, 2003, preparing clients for the interviews ordered by Kelen J. that must be scheduled by the Minister on or before March 31, 2003. Each of the five counsel before me have advised, as Officers of the Court, that they must prepare 4, 9, 9, 20 and 42 clients respectively for interviews before March 31, 2003. This is in addition to their other court and hearing work in their immigration practices. As a result, they say that an expedited appeal to be heard before March 31, 2003, will severely prejudice their practices and, specifically, the clients who must be prepared for interview before March 31, 2003.
[7] The Minister argues that the proper test for determining whether a motion for an expedited hearing should be granted is derived from Apotex Inc. v. Wellcome Foundation Ltd. (1998), 228 N.R. 355. The Minister says a moving party must demonstrate:
(a) Irreparable harm will result if the hearing is not expedited;
(b) A timetable can be agreed upon which is convenient to the Court and counsel for the parties for the hearing of the appeal; and
(c) The appeal will not be heard to the detriment of others whose matters have already been scheduled for hearing.
I am not entirely convinced that the requirements to be satisfied for an expedited hearing are as stringent as the Minister suggests, especially that an applicant must demonstrate irreparable harm to obtain an order for an expedited appeal. However, the Minister has advanced them and is prepared to have the application decided on the basis of these requirements. For purposes of this application, therefore, I will apply them to the facts. I should add, however, that, even if I were to apply a standard less than irreparable harm, my conclusion would not change.
[8] The third condition, that of queue jumping, is not at issue. The Court could make the afternoon of March 20, 2003, available because of a cancellation.
[9] With respect to irreparable harm, I agree with the Minister that rendering an appeal nugatory by the effluxion of time could constitute irreparable harm. However, if this appeal is not heard before it is moot, I am not convinced that the result will be catastrophic to the Minister. First, this Court may decide to exercise its discretion to hear the appeal even though it is moot. See Borowski v. Canada (Attorney General), [1989] 1. S.C.R. 342 at 353 and 358 et seq. Second, if no other applicant for an immigrant visa seeks to have his or her application assessed under the former regulations, any practical or administrative problems the Minister may have will disappear. If, on the other hand, an applicant for an immigrant visa seeks to be assessed under the former regulations and the Minister does not agree, the matter will likely proceed to judicial review. The same or similar considerations pertaining to the Minister's obligation, if there is one, can be argued in those proceedings; and the losing party may seek to have a question certified for appeal so that the matter may ultimately be dealt with by this Court.
[10] The Minister says that unless the matter is dealt with, there will be uncertainty in the law and administrative difficulties may be encountered. If that is the case, the Minister may apply to the Court to expedite any outstanding judicial review and/or subsequent appeal. Provided grounds can be demonstrated, the Court may well order the expedited hearing of the judicial review and/or appeal. In any event, the Minister may seek to have this appeal expedited but on a longer timetable. Of course, the question of mootness will have to be dealt with.
[11] The Minister says that the issue of the recommendation of a parliamentary committee forming the basis of a public law duty on the Minister may not arise again and that this is an important principle of constitutional law that must be dealt with by the Court. I do not minimize the importance of this issue. However, I have not been persuaded that it cannot be dealt with under future judicial reviews or appeals. And, as I have said, this Court may exercise its discretion to hear and decide the appeal in this case even if it is moot.
[12] With respect to the timetable, it is apparent that there is no agreement between the parties. While it is not beyond the power of the Court to impose a timetable on parties if they do not agree, I think to do so the Court would, in most cases, have to conclude that agreement could not be reached because one or both of the parties was being unreasonable. I do not think that is the case here.
[13] While the Minister is not being unreasonable in trying to get the appeal heard and decided before March 31, 2003, the timetable is extraordinarily short. While counsel for the respondents must be prepared to be flexible, I think that what they would be called upon to accommodate in this case would be unfair and prejudicial to them and their clients. They are required to prepare clients for interviews that, as a result of Kelen J.'s Order, the Minister must schedule on or before March 31, 2003. In addition, they have their other practice obligations. It seems to me that to expedite the appeal to be heard on or before March 31, 2003, would require them, at least in some cases, to choose between working on this appeal and preparing their clients for interviews. I do not think that it is fair to them or their clients to put them in that position. For these reasons, I conclude that the Minister has not satisfied the requirements for an expedited hearing before March 31, 2003.
[14] The motion to abridge the time for the service and filing of the motion record will be allowed and the motion record will be ordered to be filed. The motion to expedite the hearing of the appeal will be dismissed without prejudice to any further application the Minister may choose to make.
[15] On consent, the time for the respondents to file a cross-appeal will be extended to March 28, 2003.
[16] The respondents represented by the five counsel appearing on this motion will be entitled to costs of $1,000 in respect of each counsel, inclusive of disbursements, for a total of $5,000 payable by the Minister.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-133-03
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v. LAURENTIU DRAGAN
PLACE OF HEARING: Toronto
DATE OF HEARING: March 12, 2003
REASONS FOR ORDER
RENDERED FROM THE
BENCH: ROTHSTEIN J.A.
APPEARANCES:
Ursula Kaczmarczyk
Leena Jaakimainen
Kevin Lunney FOR THE APPELLANT
Timothy Leahy
David Rosenblatt
Marvin Moses
Herbert Brownstein
Lawrence Wong FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPELLANT
Timothy Leahy
Toronto, Ontario
Marvin Moses
Toronto, ON
David Rosenblatt
Rosenblatt Associates
Toronto, ON
Herbert Brownstein
Montréal, PQ
Lawrence Wong
Wong Pederson Law Offices
Vancouver, B.C.
Leonard Pearl
Chang & Boos
Toronto, ON
Jean Bohbot
Bohbot & Associates
Montréal, PQ FOR THE RESPONDENT