LUIS ALBERTO FELIPA v. THE MINISTER OF CITTIZENSHIP AND IMMIGRATION, 2011 FCA 272 (2011)

Parts:LUIS ALBERTO FELIPA v. THE MINISTER OF CITTIZENSHIP AND IMMIGRATION
Reporting Judge:SHARLOW J.A.
Docket Number:A-37-10
 
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Federal Court of Appeal - Felipa v. Canada (Citizenship and Immigration) [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2011/2011fca272/2011fca272.html

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Federal Court of Appeal

CANADA

Cour d'appel fédérale

Date: 20111003

Docket: A-37-10

Citation: 2011 FCA 272

CORAM: SHARLOW J.A.

DAWSON J.A.

STRATAS J.A.

BETWEEN:

LUIS ALBERTO FELIPA

Appellant and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Heard at Toronto, Ontario , on March 7, 2011.

Judgment delivered at Ottawa, Ontario , on October 3 , 2011.

REASONS FOR JUDGMENT BY: SHARLOW AND DAWSON JJ.A.

DISSENTING REASONS BY: STRATAS J.A.

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Federal Court of Appeal

CANADA

Cour d'appel fédérale

Date: 20111003

Docket: A-37-10

Citation: 2011 FCA 272

CORAM: SHARLOW J.A.

DAWSON J.A.

STRATAS J.A.

BETWEEN:

LUIS ALBERTO FELIPA

Appellant and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

SHARLOW and DAWSON JJ.A.

[1] The principal question in this appeal is whether a former judge of a superior court who is over the age of 75 may be requested to act as a deputy judge of the Federal Court. The Chief Justice of the Federal Court concluded that the answer is yes, and on that basis made an order dismissing a motion of the appellant Luis Alberto Felipa that would preclude a particular deputy judge who is over the age of 75 from hearing his applications for judicial review. Mr. Felipa has appealed.

[2] For the reasons that follow, we would allow this appeal. According to the interpretation of the legislation adopted by the Chief Justice, a judge of a superior court could cease to hold office on his 75th birthday and then immediately be appointed as a deputy judge to exercise all of the powers of a judge of the Federal Court. In our view, that result is so inconsistent with the legislative scheme that the statutory interpretation upon which it is based cannot stand.

Facts and procedural history

[3] The record on this motion contains little information about Mr. Felipa. It appears that he is a foreign national living in Canada, and is the sole caregiver and legal custodial parent of a child who is legally entitled to remain in Canada . Mr. Felipa is at risk of being removed from Canada .

[4] In two proceedings commenced in March of 2009 under subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, Mr. Felipa sought leave to apply for judicial review of two decisions of a pre-removal risk assessment officer. One of the impugned decisions denied Mr. Felipa relief from removal on humanitarian and compassionate grounds or public policy considerations, while the second determined that he was not a person in need of protection. Leave was granted and the two applications for judicial review were set down for hearing in Toronto on August 18, 2009. Justice Tannenbaum, a deputy judge of the Federal Court, was assigned to hear both cases.

[5] The Chief Justice chooses the persons who are asked to act as a deputy judge of the Federal Court. As explained by the Chief Justice at paragraph 112 of his reasons (citing Order in Council P.C. 2003-1779), the Governor in Council “plays no role in the chief justice’s decision to request that a specific eligible person act as a deputy judge. The approval of the Governor in Council is granted by way of a generic order in council authorizing the chief justice to seek the assistance of up to 15 deputy judges”.

[6] Justice Tannenbaum had been appointed a judge of the Quebec Superior Court in 1982. He retired from the Quebec Superior Court in 2007 upon becoming 75 years of age. He was subsequently asked to act as a deputy judge of the Federal Court. He agreed and was formally appointed as a deputy judge on May 12, 2008.

[7] Shortly before the date scheduled for the hearing of Mr. Felipa’s applications for judicial review, counsel for Mr. Felipa became aware that Justice Tannenbaum had been assigned to hear Mr. Felipa’s applications, and that he was over the age of 75. Counsel for Mr. Felipa immediately communicated with the Chief Justice and Justice Tannenbaum indicating his view that, as a matter of law, Mr. Felipa’s applications could not be heard by a deputy judge over the age of 75. He asked for the assignment of a judge who was not over the age of 75, or for the hearing to be adjourned.

[8] The hearing was adjourned to determine how the matter could best proceed, given that Mr. Felipa’s position had received some publicity and had resulted in a number of other similar requests. On August 31, 2009, according to agreed arrangements, Mr. Felipa filed a motion in both Federal Court files seeking a number of rulings to the effect that a person cannot act as a deputy judge of the Federal Court after attaining the age of 75. The Chief Justice heard the motion and dismissed it by an order dated January 26, 2010, for reasons reported as Felipa v. Canada (Minister of Citizenship and Immigration) , 2010 FC 89, [2011] 1 F.C.R. 365.

[9] Although Mr. Felipa’s motion was dismissed, the Chief Justice considered that the motion was in the nature of public interest litigation. On that basis he awarded costs to Mr. Felipa, fixed in the amount of $6,000.00.

Mr. Felipa’s right of appeal

[10] The parties and the Chief Justice agreed that his order dismissing Mr. Felipa’s motion should be subject to appeal. However, a concern was raised that, pursuant to paragraph 72(2)( e ) of the Immigration and Refugee Protection Act , no appeal lies from an interlocutory judgment in an application for judicial review made under subsection 72(1). Also, pursuant to paragraph 74( d ), a judgment of the Federal Court disposing of an application for judicial review under subsection 72(1) cannot be appealed unless the judge certifies that a serious question of general importance is involved, and states the question.

[11] The Chief Justice concluded that his order is subject to appeal without a certified question because the order is a “separate, divisible judicial act”, citing Charkaoui v. Canada (Minister of Citizenship and Immigration) , 2004 FCA 421, 328 N.R. 201 at paragraph 48; and Canada (Minister of Citizenship and Immigration) v. Tobiass , [1997] 3 S.C.R. 391 at paragraphs 60 and following. However, to remove all doubt and to facilitate an appeal of his order, the Chief Justice certified two questions pursuant to paragraph 74( d ) of the Immigration and Refugee Protection Act .

[12] We agree with the Chief Justice, substantially for the reasons he gave, that Mr. Felipa has the right to appeal the order dismissing his motion. The cases upon which the Chief Justice relied were decided in different contexts, but in our view the principles established in those cases apply here to compel the conclusion that paragraph 72(2)( e ) of the Immigration and Refugee Protection Act does not bar an appeal from the order determining Mr. Felipa’s motion and that paragraph 74( d ) of that Act does not require a certified question.

Mr. Felipa’s motion and the decision of the Federal Court

[13] At the heart of Mr. Felipa’s motion are subsection 99(2) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, and subsections 8(2) and 10(1.1) of the Federal Courts Act , R.S.C. 1985, c. F-7.

[14] Section 99 of the Constitution Act, 1867 is found in Part VII, entitled “Judicature” and reads as follows (emphasis added):
99. (1) Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

(2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.

99. (1) Sous réserve du paragraphe (2) du présent article, les juges des cours supérieures resteront en fonction durant bonne conduite, mais ils pourront être révoqués par le gouverneur général sur une adresse du Sénat et de la Chambre des Communes.

(2) Un juge d'une cour supérieure, nommé avant ou après l'entrée en vigueur du présent article, cessera d'occuper sa charge lorsqu'il aura atteint l'âge de soixante-quinze ans, ou à l'entrée en vigueur du présent article si, à cette époque, il a déjà atteint ledit âge.

[15] Section 8 of the Federal Courts Act reads as follows (emphasis added):
8. (1) Subject to subsection (2), the judges of the Federal Court of Appeal and the Federal Court hold office during good behaviour, but are removable by the Governor General on address of the Senate and House of Commons.

(2) A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on becoming 75 years old .

8. (1) Sous réserve du paragraphe (2), les juges de la Cour d’appel fédérale et de la Cour fédérale occupent leur poste à titre inamovible, sous réserve de révocation par le gouverneur général sur adresse du Sénat et de la Chambre des communes.

(2) La limite d’âge pour l’exercice de la charge de juge de la Cour d’appel fédérale et de la Cour fédérale est de soixante-quinze ans .

[16] Section 10 of the Federal Courts Act reads in relevant...

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