Digests

Dragan v. Canada (Minister of Citizenship and Immigration)

A-133-03

2003 FCA 139, Rothstein J.A.

12/3/03

7 pp.

Motion to expedite hearing of appeal of judgment of Kelen J. ((2003), 224 D.L.R. (4th) 739 (F.C.T.D.)) ordering writs of mandamus requiring Minister to assess 102 applicants for immigrant visas in accordance with Immigration Regulations, 1978, SOR/78-172 (former regulations)--Appeal filed pursuant to certified question for appeal by Kelen J. ((2003), 228 F.T.R. 52 (F.C.T.D.))--By virtue of Kelen J.'s order and Immigration and Refugee Protection Regulations (IRPR), s. 361(3), assessments must be made on or before March 31, 2003--Appellant says Kelen J. erred in finding Minister had implied duty to use reasonable best efforts to assess applications before March 31, 2003--Further, appellant says Kelen J.'s order requiring Minister to follow recommenda-tions of standing committee of Members of Parliament, which has never been basis of public law duty on Minister--On or before March 31, 2003, Minister has right to appeal by virtue of certified question for appeal ordered by Kelen J.-- However, after March 31, 2003, regulatory basis in IRPR, s. 361(3) for writs of mandamus will no longer have application--Appellant says appeal right may be rendered nugatory, and appellant will therefore suffer irreparable harm, if motion to expedite not granted and appeal not scheduled for hearing before March 31, 2003--Appellant arguing proper test for determining whether motion for expedited hearing should be granted derived from Apotex Inc. v. Wellcome Foundation Ltd. (1988), 228 N.R. 355 (F.C.A.)--Accordingly, moving party must demonstrate: (i) irreparable harm will result if hearing not expedited; (ii) timetable can be agreed upon which is convenient to Court and counsel for parties for hearing of appeal; and (iii) appeal will not be heard to detriment of others whose matters have already been scheduled for hearing--Regarding third condition, Court could make afternoon of March 20, 2003, available because of cancellation--With respect to irreparable harm, rendering appeal nugatory by effluxion of time could constitute irreparable harm--However, if appeal not heard before appeal moot, result will not be catastrophic to appellant--First, Court may decide to exercise discretion to hear appeal even though moot--Second, if no other applicant for immigrant visa seeks to have application assessed under former regulations, any practical or administrative problems Minister may have will disappear--If, on the other hand, applicant for immigrant visa seeks assessment under former regulations and Minister does not agree, matter will likely proceed to judicial review--With respect to timetable, apparent no agreement between parties-- While Minister not unreasonable in trying to get appeal heard and decided before March 31, 2003, timetable extraordinarily short--Minister required to prepare clients for interviews, as result of Kelen J.'s order, Minister must schedule on or before March 31, 2003--In addition, respondent's counsel have other practice obligations--Expediting appeal for hearing on or before March 31, 2003, would require counsel, at least in some cases, to choose between working on present appeal and preparing clients for interviews--Not fair to counsel and their clients--Therefore, Minister has not satisfied requirements for expedited hearing before March 31, 2003--Motion to abridge time for service and filling of motion record allowed and motion record ordered to be filed--Motion to expedite hearing of appeal dismissed without prejudice to any further application Minister may choose to make--Immigration Regulations, 1978, SOR/78-172--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 361(3).