Nguesso v. Canada (Minister of Citizenship and Immigration), (2015) 474 F.T.R. 217 (FC)

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: January 14, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 474 F.T.R. 217 (FC);2015 FC 102

Nguesso v. Can. (M.C.I.) (2015), 474 F.T.R. 217 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] F.T.R. TBEd. AU.015

Wilfrid Nguesso (demandeur) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-1144-14; 2015 CF 102; 2015 FC 102)

Indexed As: Nguesso v. Canada (Minister of Citizenship and Immigration)

Federal Court

Bédard, J.

February 2, 2015.

Summary:

An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class. Nguesso applied for leave and for judicial review. Leave was granted. After receiving the certified tribunal record (CTR), Nguesso moved under Rule 17 of the Immigration Rules for complete disclosure of the CTR, asserting that the CTR was incomplete. The officer swore an affidavit on September 19, 2014, in response to the motion. At the motion's hearing, Nguesso waived cross-examination of the officer on the affidavit. The motion was denied. The officer swore an affidavit on September 24, 2014, in response to the judicial review application. She was examined on the affidavit. During the examination, the Crown objected to the officer being examined about her September 19 affidavit and also objected to a number of the questions and undertakings requested. Nguesso filed a motion, seeking an order requiring the Crown to add documents to the CTR, including documents that were in the Crown's possession but were not included and were different from the documents sought earlier and documents that were identified during the officer's examination; leave to cross-examine the officer on her September 19 affidavit; and a ruling regarding the objections. The Crown sought leave to file a supplementary memorandum not to exceed 60 pages that would completely replace the memorandum filed by it at the application for leave stage.

The Federal Court authorized both parties to file supplementary memoranda of more than 60 pages to replace the memoranda already filed. The court determined which documents were to be included in the CTR. Nguesso was granted leave to cross-examine the officer on the September 19 affidavit. The court determined the objections that arose in the cross-examination on the September 24 affidavit.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class - Nguesso applied for judicial review - The parties were at odds as to the types of documents that were to be included in the certified tribunal record (CTR) under Rule 17 of the Immigration Rules - The Federal Court discussed the principles applicable to the contents of the CTR - First, depending on the grounds for judicial review, relevant documents could include all documents that were before the decision-maker, including for example, those dealing with the processing of the file - Second, a document that was not before the decision-maker when it made its decision might nonetheless be relevant if it was useful to the assessment of, and connected to, an allegation of breach of procedural fairness or bias - See paragraphs 79 to 94.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class - Nguesso applied for judicial review - After receiving the certified tribunal record (CTR), Nguesso moved under Rule 17 of the Immigration Rules for complete disclosure of the CTR, asserting that the CTR was incomplete - Martineau, J., denied the motion - The officer swore an affidavit on September 24, 2014, in response to the judicial review application - She was examined on the affidavit - Nguesso filed a motion, seeking, inter alia, an order requiring the Crown to add documents to the CTR, including documents that were in the Crown's possession but were not included and were different from the documents sought earlier and documents that were identified during the officer's examination - The Federal Court determined which documents were to be included in the CTR - The CTR was to be prepared in light of the allegations and grounds for review, which, here, included procedural fairness and apprehension of bias - All of the documents that were in the officer's possession when she processed Nguesso's file were presumptively relevant and were to be included in the CTR - Of the documents that were disclosed to Nguesso by the Canada Border Services Agency, the ones that came from the officer or were in her possession while processing the file were to be included - See paragraphs 95, 96 and 127 to 130.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - [See both Administrative Law - Topic 608 ].

Aliens - Topic 4072

Practice - Judicial review and appeals - The record - [See both Administrative Law - Topic 608 ].

Aliens - Topic 4521

Evidence - Affidavits - General - [See all Practice - Topic 3687 ].

Courts - Topic 4076.1

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Length of written submissions - An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class - Nguesso applied for leave and for judicial review - Leave was granted - Issues arose as to the composition of the certified tribunal record and other matters - The Crown sought leave to file a supplementary memorandum not to exceed 60 pages that would completely replace the memorandum filed by it at the application for leave stage - The Federal Court granted the motion, stating, "This matter raises a number of issues, some of which involve an allegation of bias and several aspects of procedural fairness. In addition, the processing of this file has extended over a long period and entailed the analysis of a large volume of documents. In short, the factual background is lengthy and the judicial review application raises a number of issues. Therefore, I find that, given the specific circumstances of this case, the respondent's application is reasonable and it would be difficult for the parties to provide effective explanations of their respective arguments in a thirty-page memorandum. I am also of the view that the Court would benefit from the parties being provided with an opportunity to develop their arguments more fully in their respective memoranda." - The court authorized both parties to file supplementary memoranda of more than 60 pages to replace the memoranda already filed - See paragraphs 24 to 31.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class - Nguesso applied for judicial review - After receiving the certified tribunal record (CTR), Nguesso moved under Rule 17 of the Immigration Rules for complete disclosure of the CTR, asserting that the CTR was incomplete - Martineau, J., denied the motion - The officer swore an affidavit on September 24, 2014, in response to the judicial review application - She was examined on the affidavit - Nguesso filed a motion, seeking, inter alia, an order requiring the Crown to add documents to the CTR, including documents that were in the Crown's possession but were not included and were different from the documents sought earlier and documents that were identified during the officer's examination - The Crown asserted that Martineau, J.'s order definitively settled the issue as to the completeness of the CTR and that this issue was, therefore, res judicata - The Federal Court rejected the argument - The order issued by Martineau, J., definitively settled the issue of the relevance of the documents reviewed in the order, but did not definitively settle all of the issues that could be raised regarding the CTR's contents and that might have arisen based on the way in which the matter had proceeded - See paragraphs 97 to 99.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination (incl. transcripts) - An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class - Nguesso applied for judicial review - He filed a motion, seeking, inter alia, leave to cross-examine the officer on an affidavit filed in response to a motion for complete disclosure of the certified tribunal record - The Federal Court discussed the general principles that framed the right to cross-examine the deponent of an affidavit in an application for judicial review - The questions that could be posed on cross-examination on affidavits might, depending on the context, exceed the scope of facts strictly set out in the affidavit - However, cross-examination had to be limited to questions of fact, not questions of law, that arose from stated facts and subjects addressed in the affidavit and from the reasons for which the affidavit was sworn and filed - The relevance of questions also had to be determined based on the grounds asserted in the application for judicial review - See paragraphs 100 to 108.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination (incl. transcripts) - An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class - Nguesso applied for judicial review - After receiving the certified tribunal record (CTR), Nguesso moved under Rule 17 of the Immigration Rules for complete disclosure of the CTR, asserting that the CTR was incomplete - The officer swore an affidavit on September 19, 2014, in response to the motion - At the motion's hearing, Nguesso waived cross-examination of the officer on the affidavit - Martineau, J., denied the motion - The officer swore an affidavit on September 24, 2014, in response to the judicial review application - She was examined on the affidavit - During the examination, the Crown objected to the officer being examined about her September 19 affidavit - Nguesso filed a motion, seeking, inter alia, leave to cross-examine the officer on her September 19 affidavit - The Federal Court granted the motion - Barring special circumstances, Nguesso remained bound by his decision at the hearing before Martineau, J., not to cross-examine the officer - However, the situation had evolved - Special circumstances justified revisiting the issue of the CTR's completeness and allowing Nguesso to cross-examine the officer - Documents received by Nguesso through access requests raised doubts about the CTR's completeness - Given the grounds for judicial review, it was important that the court be able to conduct its analysis based on a complete CTR - It was in the best interests of justice that Nguesso be allowed to cross-examine the officer on her September 19 affidavit even though that right had been waived - See paragraphs 109 to 123.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination (incl. transcripts) - An immigration officer declared Nguesso inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class - Nguesso applied for judicial review - After receiving the certified tribunal record (CTR), Nguesso moved under Rule 17 of the Immigration Rules for complete disclosure of the CTR, asserting that the CTR was incomplete - Martineau, J., denied the motion - The officer swore an affidavit on September 24, 2014, in response to the judicial review application - She was examined on the affidavit - During the examination, the Crown objected to a number of the questions and undertakings requested - Nguesso filed a motion, seeking, inter alia, a ruling regarding the objections - The Federal Court determined the objections - There was no need to allow a re-examination of the officer on her affidavit with regard to subjects other than those related to the objections ruled on here - However, the court did allow Nguesso to question the officer regarding two specific documents that were relevant to an alleged breach of procedural fairness - See paragraphs 124 and 125.

Cases Noticed:

Canada v. General Electric Capital Canada Inc. (2010), 403 N.R. 114; 2010 FCA 92, refd to. [para. 29].

Merck Frosst Canada Inc. et al. v. Canada (Minister of National Health and Welfare) et al. (1997), 146 F.T.R. 249 (T.D.), refd to. [para. 39].

Lévy (Sam) & Associés Inc. et al. v. Lafontaine, [2005] F.T.R. Uned. C17; 2005 FC 621, refd to. [para. 41].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al. (1996), 90 F.T.R. 241; 67 C.P.R.(3d) 362 (T.D.), refd to. [para. 41].

Maheu v. IMS Health Canada et al. (2003), 234 F.T.R. 277; 2003 FCT 647, refd to. [para. 43].

Sivak et al. v. Canada (Minister of Citizenship and Immigration) (2011), 387 F.T.R. 265; 2011 FC 402, refd to. [para. 43].

Royal Bank of Scotland plc v. Ship Golden Trinity et al., [2000] 4 F.C. 211; 186 F.T.R. 288 (T.D.), refd to. [para. 43].

Stella-Jones Inc. et al. v. Hawknet Ltd. et al., [2000] F.T.R. Uned. 59 (T.D.), refd to. [para. 43].

Stanfield et al. v. Minister of National Revenue (2004), 255 F.T.R. 240; 2004 FC 584, refd to. [para. 43].

AgustaWestland International Ltd. v. Canada (Minister of Public Works and Government Services) et al., [2005] F.T.R. Uned. 400; 2005 FC 627, agreed with [para. 43].

Douze v. Canada (Minister of Citizenship and Immigration) et al. (2010), 375 F.T.R. 195; 2010 FC 1086, refd to. [para. 53].

Jolivet v. Canada (Minister of Justice) et al., [2011] F.T.R. Uned. 788; 2011 FC 806, refd to. [para. 54].

Kamel v. Canada (Attorney General) (2006), 303 F.T.R. 17; 2006 FC 676, dist. [para. 54].

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), refd to. [para. 55].

Maax Bath Inc. v. Almag Aluminum Inc. et al. (2009), 392 N.R. 219; 2009 FCA 204, refd to. [para. 55].

Majeed v. Minister of Employment and Immigration (1993), 68 F.T.R. 75 (T.D.), refd to. [para. 55].

Imperial Oil Ltd. et al. v. Lubrizol Corp. et al., [1998] F.T.R. Uned. 426; 1998 CanLII 8152 (T.D.), refd to. [para. 66].

Canada (Attorney General) v. Central Cartage Co. et al. (1987), 10 F.T.R. 225 (T.D.), affd. (1990), 109 N.R. 373 (F.C.A.), refd to. [para. 66].

Lépine v. Bank of Nova Scotia, 2006 FC 1455, refd to. [para. 69].

Autodata Ltd. v. Autodata Solutions Co., [2004] F.T.R. Uned. 771; 2004 FC 1361, refd to. [para. 69].

Imperial Chemical Industries plc et al. v. Apotex Inc., 1988 CarswellNat 642; 22 C.I.P.R. 226 (F.C.T.D.), refd to. [para. 69].

El Maghraoui v. Canada (Minister of Citizenship and Immigration) (2013), 438 F.T.R. 163; 2013 FC 883, refd to. [para. 69].

Leahy v. Canada (Minister of Citizenship and Immigration) (2012), 438 N.R. 280; 2012 FCA 227, refd to. [para. 70].

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 382 N.R. 2; 2008 FCA 255, refd to. [para. 70].

Stemijon Investments Ltd. v. Canada (Attorney General) (2011), 425 N.R. 341; 2011 FCA 299, refd to. [para. 70].

Pinto v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 168; 2013 FC 349, refd to. [para. 70].

Ward v. Samson Cree Nation No. 444 et al., [2001] F.T.R. Uned. 668; 2001 FCT 990, refd to. [para. 71].

Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 591; 193 F.T.R. 230 (T.D.), refd to. [para. 75].

Aryaie v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 211; 2013 FC 469, refd to. [para. 75].

Alabadleh v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 422; 2006 FC 716, refd to. [para. 76].

Machalikashvili v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 429; 2006 FC 622, refd to. [para. 82].

Access Information Agency Inc. v. Canada (Minister of Transport) - see Access Information Agency Inc. v. Canada (Attorney General) et al.

Access Information Agency Inc. v. Canada (Attorney General) et al., [2007] N.R. Uned. 154; 2007 FCA 224, refd to. [para. 88].

Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities - Gomery Commission) - see Gagliano v. Gomery et al.

Gagliano v. Gomery et al. (2006), 293 F.T.R. 108; 2006 FC 720, affd. (2007), 362 N.R. 48; 2007 FCA 131, refd to. [para. 91].

Public Sector Integrity Commissioner v. Canada (Attorney General) et al., [2014] N.R. Uned. 160; 2014 FCA 270, refd to. [para. 92].

Almrei, Re (2009), 337 F.T.R. 160; 2009 FC 3, agreed with [para. 106].

Ottawa Athletic Club Inc. v. Athletic Club Group Inc. et al. (2014), 459 F.T.R. 39; 2014 FC 672, agreed with [para. 107].

Statutes Noticed:

Federal Courts Immigration and Refugee Protection Rules - see Immigration and Refugee Protection Act Regulations (Can.), Federal Courts Immigration and Refugee Protection Rules.

Immigration and Refugee Protection Act Regulations (Can.), Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, rule 17 [para. 79].

Counsel:

Johanne Doyon, for the applicant;

Normand Lemyre and Lyne Prince, for the respondent.

Solicitors of Record:

Doyon & Associés Inc., Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

These motions were heard at Montreal, Quebec, on January 14, 2015, by Bédard, J., of the Federal Court, who delivered the following reasons for order at Ottawa, Ontario, on February 2, 2015.