Canadian Doctors for Refugee Care v. Canada (Attorney General) et al., (2015) 475 F.T.R. 65 (FC)

JudgeMactavish, J.
CourtFederal Court (Canada)
Case DateJanuary 27, 2015
JurisdictionCanada (Federal)
Citations(2015), 475 F.T.R. 65 (FC);2015 FC 149

Doctors for Refugee Care v. Can. (A.G.) (2015), 475 F.T.R. 65 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.032

Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, Daniel Garcia Rodrigues, Hanif Ayubi and Justice for Children and Youth (applicants) v. Attorney General of Canada and Minister of Citizenship and Immigration (respondents)

(T-356-13; 2015 FC 149)

Indexed As: Canadian Doctors for Refugee Care v. Canada (Attorney General) et al.

Federal Court

Mactavish, J.

February 5, 2015.

Summary:

Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program. In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals and all but eliminated it for others pursuing risk-based claims. The Canadian Doctors for Refugee Care and others (the applicants) challenged the OICs under the Charter.

The Federal Court, in a decision reported at (2014), 458 F.T.R. 1, declared the OICs inconsistent with s. 12 of the Charter (the right against cruel and unusual treatment or punishment) and s. 15 of the Charter (the right to equality) and, therefore, of no force and effect. The Attorney General and the Minister of Citizenship and Immigration appealed. A motion for a stay of the decision was dismissed. In November 2014, Canada instituted a new Federal Health Program. The applicants were of the view that the 2014 Federal Health Program failed to address the Charter violations that had been identified in the court's judgment. They moved for "directions" or "clarification" of the judgment and for "an Order compelling the Respondents to comply" with the judgment.

The Federal Court denied the motion.

Editor's Note: For related decisions, see (2013), 433 F.T.R. 118 and (2015), 470 N.R. 167.

Civil Rights - Topic 8369.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Retention of jurisdiction to enforce compliance with - [See third Courts - Topic 2189.1 ].

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - [See all Courts - Topic 2189.1 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program - In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals and all but eliminated it for others pursuing risk-based claims - The Canadian Doctors for Refugee Care and others (the applicants) challenged the OICs under the Charter - Mactavish, J., declared the OICs inconsistent with ss. 12 and 15 of the Charter and, therefore, of no force and effect - While the decision was under appeal, Canada instituted a new Federal Health Program - The applicants asserted that the 2014 Federal Health Program failed to address the Charter violations that had been identified in the court's judgment - They moved for "directions" or "clarification" of the judgment and for "an Order compelling the Respondents to comply" with the judgment - The Federal Court, having denied the motion on the principle of functus officio, indicated that the question of whether the new program was Charter-compliant had to be decided in the context of a new application for judicial review on a proper evidentiary record - See paragraphs 25 to 28.

Courts - Topic 2189.1

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Charter remedies - Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program - In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals and all but eliminated it for others pursuing risk-based claims - The Canadian Doctors for Refugee Care and others (the applicants) challenged the OICs under the Charter - Mactavish, J., declared the OICs inconsistent with ss. 12 and 15 of the Charter and, therefore, of no force and effect - While the decision was under appeal, Canada instituted a new Federal Health Program - The applicants asserted that the 2014 Federal Health Program failed to address the Charter violations that had been identified in the court's judgment - They moved for "directions" or "clarification" of the judgment and for "an Order compelling the Respondents to comply" with the judgment - The Federal Court denied the motion on the principle of functus officio - The judgment was a final decision, disposing of all of the applicants' claims for relief - The court's jurisdiction was exhausted - See paragraphs 7 to 12.

Courts - Topic 2189.1

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Charter remedies - Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program - In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals and all but eliminated it for others pursuing risk-based claims - The Canadian Doctors for Refugee Care and others (the applicants) challenged the OICs under the Charter - Mactavish, J., declared the OICs inconsistent with ss. 12 and 15 of the Charter and, therefore, of no force and effect - While the decision was under appeal, Canada instituted a new Federal Health Program - The applicants asserted that the 2014 Federal Health Program failed to address the Charter violations that had been identified in the court's judgment - They moved for "directions" or "clarification" of the judgment and for "an Order compelling the Respondents to comply" with the judgment - The Federal Court, having denied the motion on the principle of functus officio, rejected the applicants' submission that the court had "innate jurisdiction" to clarify its judgment - The judgment was "perfectly clear" - No clarification was required - See paragraph 13.

Courts - Topic 2189.1

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Charter remedies - Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program - In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals and all but eliminated it for others pursuing risk-based claims - The Canadian Doctors for Refugee Care and others (the applicants) challenged the OICs under the Charter - Mactavish, J., declared the OICs inconsistent with ss. 12 and 15 of the Charter and, therefore, of no force and effect - While the decision was under appeal, Canada instituted a new Federal Health Program - The applicants asserted that the 2014 Federal Health Program failed to address the Charter violations that had been identified in the court's judgment - They moved for "directions" or "clarification" of the judgment and for "an Order compelling the Respondents to comply" with the judgment - The Federal Court, having denied the motion on the principle of functus officio, rejected the applicants' submission that the court had "innate jurisdiction" to ensure compliance with its judgment - What the applicants sought was not enforcement of the judgment, but a ruling that the 2014 Federal Health Program violated ss. 12 and 15 - See paragraphs 14 and 15.

Courts - Topic 2189.1

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Charter remedies - Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program - In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals and all but eliminated it for others pursuing risk-based claims - The Canadian Doctors for Refugee Care and others (the applicants) challenged the OICs under the Charter - Mactavish, J., declared the OICs inconsistent with ss. 12 and 15 of the Charter and, therefore, of no force and effect - While the decision was under appeal, Canada instituted a new Federal Health Program - The applicants asserted that the 2014 Federal Health Program failed to address the Charter violations that had been identified in the court's judgment - They moved for "directions" or "clarification" of the judgment and for "an Order compelling the Respondents to comply" with the judgment - The Federal Court, having denied the motion on the principle of functus officio, stated that the practical effect of what the applicants sought was an amendment of the judgment to require Canada to fund healthcare at a certain level for those seeking Canada's protection - They had provided no principled basis on which to do so - See paragraphs 16 to 24.

Courts - Topic 2189.1

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Charter remedies - Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program - In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals and all but eliminated it for others pursuing risk-based claims - The Canadian Doctors for Refugee Care and others (the applicants) challenged the OICs under the Charter - Mactavish, J., declared the OICs inconsistent with ss. 12 and 15 of the Charter and, therefore, of no force and effect - While the decision was under appeal, Canada instituted a new Federal Health Program - The applicants asserted that the 2014 Federal Health Program failed to address the Charter violations that had been identified in the court's judgment - They moved for "directions" or "clarification" of the judgment and for "an Order compelling the Respondents to comply" with the judgment - The Federal Court, having denied the motion on the principle of functus officio, rejected the applicants' assertion that it should take jurisdiction over the matter because the 2014 Federal Health Program was putting lives at risk and the applicants had no other remedy - The fact that a new judicial review application might take time did not confer jurisdiction where it did not already exist - Further, the matter could be dealt with in a fairly expeditious manner - See paragraphs 29 to 37.

Practice - Topic 6101

Judgments and orders - Amendment, rescission and variation of judgments and orders - Jurisdiction - [See fourth Courts - Topic 2189.1 ].

Cases Noticed:

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 7].

Halford et al. v. Seed Hawk Inc. et al. (2004), 253 F.T.R. 122; 2004 FC 455, refd to. [para. 10].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 10].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 14].

Meeches v. Meeches et al. (2013), 444 N.R. 285; 2013 FCA 114, refd to. [para. 15].

Assiniboine v. Meeches - see Meeches v. Meeches et al.

Canada (Minister of Citizenship and Immigration) v. Mahjoub (2009), 338 F.T.R. 74; 2009 FC 34, dist. [para. 18].

Jaballah, Re, [2009] F.T.R. Uned. 212; 2009 FC 33, dist. [para. 18].

Canada (Minister of Citizenship and Immigration) v. Jaballah - see Jaballah, Re.

Standal Estate et al. v. Swecan International Ltd. et al. (1990), 40 F.T.R. 272 (T.D.), dist. [para. 19].

MacDonald v. Swecan International Ltée - see Standal Estate et al. v. Swecan International Ltd. et al.

Criminal Trial Lawyers' Association et al. v. Alberta (Solicitor General) et al. (2004), 364 A.R. 109; 2004 ABQB 534, dist. [para. 22].

Wong v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 154 (T.D.), refd to. [para. 24].

British Columbia Teachers' Federation et al. v. British Columbia, [2014] B.C.T.C. Uned. 121; 54 B.C.L.R.(5th) 286; 2014 BCSC 121, consd. [para. 27].

Tursunbayev v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 409 F.T.R. 176; 2012 FC 504, refd to. [para. 34].

Counsel:

Lorne Waldman, for the applicants, Canadian Doctors for Refugee Care, Daniel Garcia Rodrigues and Hanif Ayubi;

Maureen Silcoff, for the applicant, The Canadian Association of Refugee Lawyers;

Emily Chan, for the applicant, Justice for Children and Youth;

David Tyndale and Alex Kam, for the respondents.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicants, Canadian Doctors for Refugee Care, Daniel Garcia Rodrigues and Hanif Ayubi;

Silcoff Shacter, Toronto, Ontario, for the applicant, The Canadian Association of Refugee Lawyers;

Justice for Children and Youth, Toronto, Ontario, for the applicant, Justice for Children and Youth;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondents.

This motion was heard at Toronto, Ontario, on January 27, 2015, by Mactavish, J., of the Federal Court, who delivered the following reasons for order at Ottawa, Ontario, on February 5, 2015.

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1 practice notes
  • Cowessess First Nation No. 73 v. Pelletier, 2017 FC 859
    • Canada
    • Federal Court (Canada)
    • September 19, 2017
    ...because it allows the Court to correct minor errors in a final decision (Canada Doctors for Refugee Care v Canada (Attorney General), 2015 FC 149 at para [17] I do not accept Cowessess’ argument that this Court lacks jurisdiction under Rule 397 to “reverse” its costs order. The Federal Cour......
1 cases
  • Cowessess First Nation No. 73 v. Pelletier, 2017 FC 859
    • Canada
    • Federal Court (Canada)
    • September 19, 2017
    ...because it allows the Court to correct minor errors in a final decision (Canada Doctors for Refugee Care v Canada (Attorney General), 2015 FC 149 at para [17] I do not accept Cowessess’ argument that this Court lacks jurisdiction under Rule 397 to “reverse” its costs order. The Federal Cour......

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