Date: 20030218
Docket: IMM-6391-02
Neutral citation: 2003 FCT 196
BETWEEN:
WEI QIANG HUANG
a.k.a. WAI KEUNG WONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] By a motion dated 3 February 2003 the Applicant seeks, pursuant to Rule 384 of the Federal Court Rules, 1998, to have this action managed as a specially managed proceeding.
[2] Special management is neither routine nor automatically granted on request. As Chief Justice Richard points out in Information Commissioner (Can.) v. Canada (Minister of Environment) (1999), 179 F.T.R. 25, there must be a substantial reason to remove a proceeding from the timetables set out in the Rules:
| Rule 384 of the Federal Court Rules, 1998, provides that a party to a proceeding may at any time bring a motion to have the proceeding managed as a specially managed proceeding. Given that the Part 5 rules themselves set out a timetable to move an application through the system quickly, such a request should not be made routinely and there must be a substantial reason justifying that proceeding being removed from the timetable set out in Part 5.
(page 32) |
Here the Applicant seeks special management so as to expedite judicial review of an interlocutory ruling, from the Immigration Appeal Division, to adjourn a hearing. The purpose of the adjournment, which is until 10 March 2003, is so that the tribunal may consider whether the Minister's case may be split so that, after all the evidence was in, the Minister's case might be bolstered.
[3] This need to bolster the Minister's case came about because, as the Minister's representative explained, while the Applicant's record, including the Applicant's affidavit, had been served in a timely manner, the representative had not realised the thrust of the affidavit until looking at it the night before. While the Applicant's evidence was set out in affidavit form, counsel for the Applicant produced the Applicant by telephone from China, largely for cross-examination purposes. Here one also perhaps expects that having asked too many questions, on cross-examination of the Applicant and received too many surprises, bolstering the Minister's case became essential.
[4] While splitting a case is improper I would make several observations. First, the decision of the Immigration Appeal Board to allow more evidence on behalf of the Minister has not yet been made, but rather only an adjournment has been ordered, so that the tribunal might consider the point. Second, the Immigration Appeal Division, by section 175(1)(b) of the Immigration and Refugee Protection Act (the "Act"), "is not bound by any legal or technical rules of evidence". Rather it is for a tribunal, by section 162(2) of the Act, to deal with proceedings "as informally and quickly as the circumstances and the considerations of fairness and natural justice permit". Third, as I observed during the hearing, a reading of the transcript indicates that the Minister's representative did not conduct himself as should an officer of the court: only after making this observation was I advised that he was not, in fact, a lawyer.
[5] In order to constitute a substantial reason for special management for the purpose of an expedited hearing to review an interlocutory decision it is my view that, initially, special circumstances should exist to warrant judicial review intervention at the interlocutory stage. The category of special circumstances is in this instance open-ended and here I would refer to a passage which appears in the written argument in the Applicant's motion record:
| On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant.
|
Counsel attributes this to Chief Justice Dickson in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49. However, these are the words of Chief Justice Lamer in C.P. Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at 31. Such is the danger of relying upon quotes within quotes which appear in unofficial versions of reported reasons. In any event, the gist of all of this is that there ought not to be appeals from interlocutory matters, short of special circumstances. This is better set out in Szczecka v. Canada (MEI) (1993), 116 D.L.R. (4th) 333 in which where the Federal Court of Appeal dealt with a judicial review application seeking review of an interlocutory decision. The Court of Appeal, after stating some of the history, notes that three years after the interlocutory decision in question was made, the Refugee Division proceeding still remained at the stage of the preliminary objection, without any ruling on the merits and that:
|
This is why unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute: [a number of case authorities referred to].
(page 335) |
In the present instance the special circumstance relied upon is an allegation of bias, on the basis that bias goes to the very function of the tribunal which is to render impartial decisions.
[6] Counsel for the Applicant refers to the test for bringing in further evidence and submits that an adjournment for the purpose of calling a witness should evoke a similar test. However, in the present instance, there has been no decision made by the Immigration Appeal Division tribunal as to whether or not to allow further evidence. On this basis the application is premature. This is all the more the case in that should the adjournment result in a decision to allow in further evidence and that decision be material and open to challenge, there is always the right to apply for judicial review from the final resulting decision.
[7] Leaving the premature aspect aside, focusing on bias and looking at what really happened, the adjournment, the transcript leads one to the view that it is most likely that, rather than exhibiting bias, the tribunal became confused on a number of issues, some of which the Minister's representative could have, had he been in the position of an officer of the court, sorted out without having unjustified embarrassment heaped upon counsel for the Applicant. As I say, this is not, in my view, bias but rather confusion, and perhaps fuzzy thinking. It also demonstrates some want of proper preparation on the part of the Minister's representative.
[8] The motion is dismissed. Costs in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
18 February 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6391-02
STYLE OF CAUSE: Wei Qiang Huang a.k.a. Wai Keung Wong v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 17 February 2003
REASONS FOR ORDER: Hargrave P.
DATED: 18 February 2003
APPEARANCES:
Ronald Pederson FOR APPLICANT
Peter Bell FOR RESPONDENT
SOLICITORS ON THE RECORD:
Wong Pederson Law Offices FOR APPLICANT
Barristers & Solicitors
Vancouver, British Columbia
Morris A Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia