Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913

• Judge: Roy, J.
• Court: Federal Court (Canada)
• Case Date: August 27, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2014 FC 913;(2014), 464 F.T.R. 160 (FC)

Spasoja v. Can. (M.C.I.) (2014), 464 F.T.R. 160 (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: [2014] F.T.R. TBEd. SE.026

Franciska Spasoja (partie demanderesse) v. Le Ministre de la Citoyenneté et de l'Immigration (partie défenderesse)

(IMM-7630-13; 2014 CF 913; 2014 FC 913)

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

Federal Court

Roy, J.

September 23, 2014.

Summary:

The applicant appealed a decision of the Refugee Protection Division of the Immigration and Refugee Board. The Refugee Appeal Division (RAD) dismissed the appeal, applying a reasonableness standard. The applicant sought judicial review.

The Federal Court allowed the application. The applicant did not have the appeal to which she was entitled under the Immigration and Refugee Protection Act because the RAD chose to apply a reasonableness standard of review corresponding to an application for judicial review. The matter was remitted to a differently constituted panel of the RAD for redetermination as an appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The applicant appealed a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board - The Refugee Appeal Division (RAD) dismissed the appeal, applying a reasonableness standard - The applicant sought judicial review - The Federal Court applied a correctness standard in reviewing the issue of the standard that the RAD had to apply to RPD decisions - The court agreed with Phelan, J.'s determination in Huruglica v. Canada (Minister of Citizenship and Immigration) (F.C. 2014) that this was an issue of law of central importance to the legal system that went beyond the scope of the administrative tribunal's expertise - However, the court also found that this was a question of "jurisdictional lines" between competing specialized tribunals, which also required review on a correctness standard - See paragraphs 7 to 11.

Administrative Law - Topic 9103

Boards and tribunals - Judicial review - Scope of review - [See Administrative Law - Topic 3202 ].

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - [See both Aliens - Topic 1326.1 ].

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - The applicant appealed a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board - The Refugee Appeal Division (RAD) dismissed the appeal, applying a reasonableness standard - The applicant sought judicial review - The Federal Court allowed the application - The Immigration and Refugee Protection Act was clear in both official languages - Under s. 110 of the Act, the RAD's role was an appeal on a question of law, of fact or of mixed fact and law - An appellate jurisdiction was at issue and nothing else - The Act also clearly stated the manner in which the RAD had to fulfill its mandate - Section 111 was a directive regarding decisions that could be rendered by the RAD - The RAD could confirm the decision or substitute a decision that, in its opinion, should have been made - The matter could be remitted to the RPD only in specific circumstances - The legislative scheme, viewed as a whole, did not at all suggest deference - Not only did the Act provide for an appeal, but it also clearly stated the decisions that had to be made - That was determinative - Further, a review of the legislative debates left no place for an RAD jurisdiction that had the nature of a quasi-judicial review - The applicant did not have the appeal to which she was entitled - The matter was remitted to a differently constituted panel of the RAD for redetermination as an appeal - See paragraphs 12 to 40.

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - The applicant appealed a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board - The Refugee Appeal Division (RAD) dismissed the appeal, applying a reasonableness standard - The applicant sought judicial review - The Federal Court allowed the application - Having found that the RAD had erred in conducting a quasi-judicial review, rather than an appeal, the court discussed the nature of the appeal that should have been conducted - There were no indicators in the legislation that suggested an appeal de novo - Instead, the scheme under review addressed appeals on specific questions of fact, of law or of mixed law and fact (s. 110(1) of the Immigration and Refugee Protection Act) - The appellant had to identify the questions on which the appeal would focus - The appeal would be heard on the basis of the record of proceedings before the RPD based on the questions identified and raised, subject to the documentary evidence (s. 110(3)) or evidence that was consistent with s. 110(4) - New evidence on appeal was admissible under Rule 351 of the Federal Courts Rules - Because the recourse described in the Act was an appeal, the appellate standards were those of "correctness and palpable and overriding error" - See paragraphs 41 to 46.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See both Aliens - Topic 1326.1 ].

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court - Standard of review - [See Administrative Law - Topic 3202 ].

Aliens - Topic 4071

Practice - Judicial review and appeals - Fresh evidence - [See second Aliens - Topic 1326.1 ].

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - [See first Aliens - Topic 1326.1 ].

Cases Noticed:

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, refd to. [para. 5].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 6].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 6].

Huruglica v. Canada (Minister of Citizenship and Immigration) (2014), 461 F.T.R. 241; 2014 FC 799, agreed with [para. 7].

Ontario (Minister of Finance) v. Smith et al. (2014), 457 N.R. 40; 320 O.A.C. 135; 2014 SCC 36, refd to. [para. 10].

Untel v. Ontario (Finances) - see Ontario (Minister of Finance) v. Smith et al.

Alvarez et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 296; 2014 FC 702, refd to. [para. 12].

Eng v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 297; 2014 FC 711, refd to. [para. 12].

Parizeau v. Barreau du Québec, 2011 QCCA 1498, appld. [para. 27].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 40].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 40].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 44].

R. v. J.A., [2011] 1 S.C.R. 628; 413 N.R. 1; 275 O.A.C. 6; 2011 SCC 17, refd to. [para. 44].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 44].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 46].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 110(1) [para. 14]; sect. 111 [para. 17].

Authors and Works Noticed:

Letarte, Veilleux, Leblanc and Rouillard-Labbé, Recours et procédure devant les Cours fédérales (2013), para. 6-49 [para. 43].

Counsel:

Eric Taillefer, for the applicant;

Evangelos Liosis, for the respondent.

Solicitors of Record:

Handfield & Associés, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on August 27, 2014, by Roy, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on September 23, 2014.