[2000] 2 F.C. 341
A-198-98
Ali Reza Moktari (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Moktari v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Robertson, Rothstein and McDonald JJ.A.—Edmonton, November 30, 1999.
Administrative law — Judicial review — Declarations — Jurisdiction in Federal Court to grant declaratory relief in judicial review proceedings brought pursuant to Federal Court Act, s. 18 — Where action seeking declaration parallelling judicial review application seeking same relief, statement of claim should be struck as disclosing no reasonable cause of action.
Federal Court jurisdiction — Trial Division — Jurisdiction in Federal Court to grant declaratory relief in judicial review proceedings brought pursuant to Federal Court Act, s. 18 — Where action seeking declaration parallelling judicial review application seeking same relief, statement of claim should be struck as disclosing no reasonable cause of action — To permit parallel proceedings arising from single decision would diminish capacity of Court to dispense justice in expedient, efficient manner.
Citizenship and Immigration — Judicial review — Action for declarations Immigration Act, s. 52 unconstitutional and Charter rights infringed parallelling application for judicial review seeking same relief — Statement of claim should be struck as disclosing no reasonable cause of action — Availability of declaratory relief upon judicial review as much matter of statutory interpretation as of practical necessity in immigration law field — Given number of judicial review applications in immigration matters, initiation of parallel but unnecessary proceedings not in best interests of justice.
The appellant, an Iranian army deserter, was admitted to Canada as a Convention refugee but was subsequently convicted of trafficking in narcotics. A ministerial danger opinion was issued and a removal order made. The appellant sought to be removed to a country other than Iran, his country of citizenship, where he feared he would be in danger. A senior immigration officer denied that request. The appellant filed an application for leave to seek judicial review of that decision in the Federal Court. He also commenced an action by filing, with the same Court, a statement of claim seeking various declarations, including a declaration that section 52 of the Immigration Act was unconstitutional and that some of his Charter rights had been infringed. A Motions Judge allowed a motion to dismiss the action and dismissed a cross-application to stay the judicial review proceedings pending the outcome of the action. This was an appeal from that decision.
Held, the appeal should be dismissed.
The true issue underlying this appeal was whether the declaratory relief sought could be obtained only by way of action and not judicial review. The Court has jurisdiction to grant declaratory relief in judicial review proceedings brought pursuant to section 18 of the Federal Court Act. While there have been differing views expressed on this issue in the Trial Division, statements of claim should be struck for disclosing no reasonable cause of action where the relief being sought in the action is a declaration and a parallel judicial review application has been brought seeking the same result. More often than not, the constitutional issues raised in immigration proceedings can be conveniently dealt with in a judicial review proceeding.
While the 1992 amendments to the Federal Court Act were aimed at effecting significant changes in the law governing judicial review in this Court, to permit parallel proceedings arising from a single decision would diminish the capacity of this Court to dispense justice in an expedient and efficient manner. The right to obtain declaratory relief in judicial review proceedings is as much a matter of statutory interpretation as it is a matter of practical necessity especially in the field of immigration law. One need only look at the thousands of judicial review applications processed by the Trial Division of this Court in any one year to appreciate that the initiation of parallel but unnecessary proceedings can only work against the best interests of justice.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.4(2) (as enacted idem, s. 5).
Immigration Act, R.S.C., 1985, c. I-2, ss. 52 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42), 53(1)(d) (as am. idem, s. 43; 1995, c. 15, s. 12).
CASES JUDICIALLY CONSIDERED
APPLIED:
Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (1999), 157 F.T.R. 161; 242 N.R. 173 (C.A.); Chan v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 612 (1994), 22 Imm. L.R. (2d) 105; 73 F.T.R. 279 (T.D.); Gowrinathan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 702 (C.A.) (QL).
REFERRED TO:
Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (1994), 113 D.L.R. (4th) 529; 166 N.R. 57 (C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 (1999), 176 D.L.R. (4th) 296 (C.A.).
APPEAL from a Trial Division decision allowing a motion to dismiss the appellant’s action for declaratory relief, which paralleled an application for judicial review seeking the same result. Appeal dismissed.
APPEARANCES:
Wendy A. Danson for appellant.
William B. Hardstaff for respondent.
SOLICITORS OF RECORD:
McCuaig Desrochers, Edmonton, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
[1] Robertson J.A.: After deserting the Iranian army, the appellant gained admission to Canada as a Convention refugee in April of 1990. In June of 1994 he was convicted of trafficking in narcotics. On May 13, 1996 the Minister of Citizenship and Immigration issued an opinion letter under paragraph 53(1)(d) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12)] that the appellant constitutes a “danger to the public”. As a result of that opinion letter, the appellant lost the right not to be “refouled” to Iran. On September 5, 1996 a removal order was made against the appellant. No attempt to execute the removal order was made until November of 1997 when the appellant had completed his sentence for the trafficking offence. On November 18, 1997 the appellant’s solicitor requested that the appellant be entitled to be removed to a country other than Iran, under section 52 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42] of the Act. That request was denied by a senior immigration officer (SIO) who confirmed the appellant’s removal from Canada to Iran.
[2] On November 18, 1997 the appellant filed an application for leave to seek judicial review of the SIO’s decision denying his request and, as well, a statement of claim. In his statement of claim, the appellant sought various declarations, including a declaration that section 52 is unconstitutional and that the appellant’s rights under the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] had been infringed (in reality two of the declarations amount to an application for an order of prohibition and mandamus respectively).
[3] By motion filed January 6, 1998 the respondent herein sought an order dismissing the appellant’s action on the ground that it disclosed no reasonable cause of action and amounted to an abuse of process. The latter allegation was premised on the belief that the relief being sought could be obtained in the judicial review application. By cross-application the appellant sought a stay of his judicial review application pending determination of his action for a declaration of constitutional invalidity. On March 3, 1998 the respondent’s motion to dismiss the action was granted. The cross-application to stay the judicial review proceedings pending the outcome of the action was dismissed. Both orders were issued without written reasons.
[4] The jurisprudence of this Court makes it clear that we possess the jurisdiction to hear constitutional challenges to legislation in judicial review proceedings: see Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.). This is true whether or not the decision-maker (e.g. a SIO) possesses the jurisdiction to make constitutional rulings. To hold otherwise would mean that the Federal Court would be prevented from acting in circumstances where a tribunal commits a jurisdictional error or error of law by basing its decision on a provision which is not constitutionally valid. The true issue underlying this appeal is whether the declaratory relief sought by the appellant can be obtained only by way of action and not judicial review. In our view, this Court possesses the jurisdiction to grant declaratory relief in judicial review proceedings brought pursuant to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)]. We acknowledge that there have been differing views expressed on this issue in the Trial Division. However, we are all of the view that the cases in which statements of claim have been struck for disclosing no reasonable cause of action where the relief being sought in the action was by declaration and a parallel judicial review application has been brought seeking the same result are to be followed.
[5] For example, in Chan v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 612 (T.D.), at page 622 the Motions Judge held that “any doubt as to how challenges against federal boards, commissions or other tribunals should be brought to this Court was clarified [with the 1992 amendments to section 18]. This includes claims for declaratory relief. The proper procedure is an application for judicial review.” As well, this Court in Gowrinathan v. Canada (Minister of Citizenship and Immigration) , [1996] F.C.J. No. 702 (C.A.) (QL) upheld a Motions Judge’s decision to strike a statement of claim on the basis that injunctive and declaratory relief should be pursued in judicial review proceedings as opposed to an action. This is not to deny that in a proper case the judicial review proceeding may be converted to an action as provided for in subsection 18.4(2) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act. As to the relevant criteria see Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.). More often than not the constitutional issues raised in immigration proceedings can be conveniently dealt with in a judicial review proceeding.
[6] We hasten to add that while the 1992 amendments to the Federal Court Act were aimed at effecting significant changes in the law governing judicial review in this Court, it is equally obvious that to permit parallel proceedings arising from a single decision would diminish the capacity of this Court to dispense justice in an expedient and efficient manner. The confusion over whether declaratory relief is available in judicial review proceedings has caused some litigants to initiate a judicial review application in this Court and then commence an action, for example, in the superior court of a province for the purpose of challenging the constitutional validity of the applicable legislation: the complexities of the situation are outlined fully in Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 (C.A.). In our view the right to seek and obtain declaratory relief in judical review proceedings is as much a matter of statutory interpretation as it is a matter of practical necessity especially in the field of immigration law. One need only look at the thousands of judicial review applications processed by the Trial Division of this Court in any one year to appreciate that the initiation of parallel but unnecessary proceedings can only work against the best interests of justice.
[7] For these reasons the appeal must be dismissed. There will be no award as to costs.