Date:20001123
Docket:A-735-97
CORAM: STONE J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
KENNETH M. NARVEY, on his own behalf and on
behalf of himself and all other persons associated with the
COALITION OF CONCERNED CONGREGATIONS
ON THE LAW RELATING TO WAR CRIMES AND
CRIMES AGAINST HUMANITY INCLUDING THOSE
OF THE HOLOCAUST ("the Coalition of Concerned
Congregations" or "the Coalition")
Appellant
(Applicant in the Trial Division)
- and -
J.E. McNAMARA, in his capacity as an Adjudicator
pursuant to the Immigration Act, THE MINISTER OF
CITIZENSHIP AND IMMIGRATION, THE LEAGUE
FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
and JOSEPH NEMSILA
Respondents
(Respondents in the Trial Division)
Heard at Toronto, Ontario, Tuesday, November 21, 2000
Judgment delivered from the Bench at Toronto, Ontario,
on Tuesday, November 21, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. |
Date: 20001123
Docket: A-735-97
CORAM: STONE J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
KENNETH M. NARVEY, on his own behalf and on
behalf of himself and all other persons associated with the
COALITION OF CONCERNED CONGREGATIONS
ON THE LAW RELATING TO WAR CRIMES AND
CRIMES AGAINST HUMANITY INCLUDING THOSE
OF THE HOLOCAUST ("the Coalition of Concerned
Congregations" or "the Coalition")
Appellant
(Applicant in the Trial Division)
- and -
J.E. McNAMARA, in his capacity as an Adjudicator
pursuant to the Immigration Act, THE MINISTER OF
CITIZENSHIP AND IMMIGRATION, THE LEAGUE
FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
and JOSEPH NEMSILA
Respondents
(Respondents in the Trial Division)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, November 21st, 2000)
EVANS J.A.
| _. We are not persuaded that the Trial Division Judge erred in law or in the exercise of his discretion when he dismissed for mootness the appellant's application for judicial review: (1997), F.T.R. 1 (F.C.T.D.). |
| _. The Trial Division Judge certified the following two-part question pursuant to subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2: |
| Where: (i) an organization has applied to an immigration Adjudicator for standing or intervenor status at an immigration inquiry; (ii) the Adjudicator has ruled that there is no such thing as intervention at such an inquiry; (iii) the Federal Court Trial Division has granted leave to commence an application for judicial review of that ruling; (iv) the Minister of Citizenship and Immigration, but not the person who was the subject of the inquiry, has taken the position that the Adjudicator was correct in his ruling; (v) the person who was the subject of the inquiry has died; and (vi) there will likely be numerous other forthcoming immigration inquiries at which the organization in question might wish to seek standing or intervenor status -- then (a) is the application for judicial review moot?; and (b) if it is moot, does it meet the established criteria such that the Trial Division should hear and decide it nevertheless? |
| _. Mr. Narvey had applied for intervener status at a deportation inquiry conducted by the Adjudication Division of the Immigration and Refugee Board into whether Mr. Nemsila, a suspected Second World War criminal, was subject to deportation as a member of the inadmissible class described in paragraphs 27(1)(e) or 27(2)(g) of the Immigration Act on the ground that he had obtained entry to Canada by either misrepresenting, or failing to disclose material facts. |
| _. The Adjudicator refused Mr. Narvey's request on the ground that he had no power to grant intervener status in a proceeding of this nature. The Adjudicator rendered a decision in |
favour of Mr. Nemsila, which was set aside by the Trial Division: [1977] 1 F.C. 260 (F.C.T.D.). Mr. Nemsila appealed, but died before the Court could render its decision. The appeal was subsequently dismissed for mootness: (1997), 214 N.R. 383 (F.C.A.).
| _. In our view, Mr. Narvey's application for judicial review of the Adjudicator's refusal to grant him intervener status is moot. The proceeding between the Minister and Mr. Nemsila died with Mr. Nemsila, and Mr. Narvey cannot possibly be granted leave to intervene in a proceeding that is itself no more. |
| _. Nonetheless, Mr. Narvey submitted that the Trial Division should have heard and determined his application for judicial review in the exercise of its discretion, pursuant to the criteria established in Borowski v. Canada, [1989] 1 S.C.R. 342. He argued that the issue of the Adjudicator's power to permit interventions is likely to arise in similar cases in the future and that deportation inquiries are apt to be completed before it would be possible to challenge in the Federal Court a refusal by an Adjudicator of a request to intervene. |
| _. We cannot accept this submission. If Mr. Narvey were unsuccessfully to request intervener status before an Adjudicator in a future case, the deportation inquiry might be adjourned pending a determination by the Federal Court of an application for judicial review brought by Mr. Narvey to challenge the refusal. Moreover, deportation inquiries of this nature may last for many months and, if no adjournment were granted, there might well be time for the determination of an application for judicial review challenging the refusal of intervener status before the inquiry was completed. |
| _. In stating that Mr. Narvey could seek intervener status in a later deportation inquiry, the Motions Judge implicitly rejected the argument that the issue was, of its nature, evasive of review, a key criterion under Borowski, supra, at p. 361, for the Court's exercise of its exceptional discretion to hear and determine a matter that is moot. |
| _. We would answer as follows the two parts of the certified question: |
| (a) Is the application for judicial review moot? Yes; |
| (b) if it is moot, does it meet the established criteria such that the Trial Division should hear it nonetheless? No. |
| _. For these reasons, the appeal will be dismissed. |
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-735-97 |
| STYLE OF CAUSE: KENNETH M. NARVEY, on his own behalf and on behalf of himself and all other persons associated with the COALITION OF CONCERNED CONGREGATIONS ON THE LAW RELATING TO WAR CRIMES AND CRIMES AGAINST HUMANITY INCLUDING THOSE OF THE HOLOCAUST ("the Coalition of Concerned Congregations" or "the Coalition") |
Appellant
(Applicant in the Trial Division)
- and -
| J.E. McNAMARA, in his capacity as an Adjudicator pursuant to the Immigration Act, THE MINISTER OF CITIZENSHIP AND IMMIGRATION, THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA and JOSEPH NEMSILA |
Respondents
(Respondents in the Trial Division)
DATE OF HEARING: TUESDAY, NOVEMBER 21, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: EVANS J.A. |
Delivered at Toronto, Ontario on Tuesday, November 21, 2000.
APPEARANCES: Mr. Kenneth M. Narvey
| (On his own behalf) For the Appellant |
Mr. Donald A. MacIntosh
Ms. Marianne Zoric
| For the Respondents |
Page: 2
| SOLICITORS OF RECORD: Mr. Kenneth M. Narvey |
(Cont'd) Box 563, Snowdon Station
Montreal, Quebec
H3X 3T7
Tel: (514) 859-9078
| For the Appellant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondents |
FEDERAL COURT OF APPEAL
Date: 20001123
Docket: A-735-97
BETWEEN:
| KENNETH M. NARVEY, on his own behalf and on behalf of himself and all other persons associated with the COALITION OF CONCERNED CONGREGATIONS ON THE LAW RELATING TO WAR CRIMES AND CRIMES AGAINST HUMANITY INCLUDING THOSE OF THE HOLOCAUST ("the Coalition of Concerned Congregations" or "the Coalition") |
Appellant
(Applicant in the Trial Division)
- and -
| J.E. McNAMARA, in his capacity as an Adjudicator pursuant to the Immigration Act, THE MINISTER OF CITIZENSHIP AND IMMIGRATION, THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA |
and JOSEPH NEMSILA
Respondents
(Respondents in the Trial Division)
REASONS FOR JUDGMENT
OF THE COURT