Last updated on April 29th, 2019
On June 10, 2010, the Federal Court of Appeal (“FCA“) issued its decision in Canada (Citizenship and Immigration) v. Arif, 2010 FCA 157. The majority and concurring opinions discussed two procedural rules that will interest immigration practitioners The first issue was when a Federal Court determination regarding a Citizenship Judge’s decision can be appealed. The second was the relationship between section 399(2) of the Federal Court Rules and the principle of functus officio.
When can a Federal Court Order Regarding a Citizenship Judge’s Opinion be Appealed to the Federal Court of Appeal?
Section 14 of the Citizenship Act regulates appeals from Citizenship judges. Subsections 5 and 6 provide that:
(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
Subsection six clearly states that the FCA is precluded from hearing appeals from Federal Court decisions pursuant to an appeal of a citizenship judge’s determination. But, does the FCA have jurisdiction to hear appeals from decisions of the Federal Court reconsidering, or refusing to reconsider, its decisions?
In answering this question,Read more ›
On June 11, 2010, the Supreme Court of Canada released its decision in R v. Conway, 2010 SCC 22 (“Conway“). Conway explored the relationship between the Charter, its remedial provisions, and administrative tribunals.
Sections 24(1) and 24(2) of the Charter deal with remedies. Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances”. Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute.
In Conway, the appellant argued that several of his Charter rights were breached when he was detained in mental and health facilities, and sought an absolute discharge as the remedy. The Ontario Review Board (the “Board“) found that it had no Charter jurisdiction to issue a s. 24(1) remedy. The Ontario Court of Appeal found that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a discharge would, in the appellant’s case, be a significant threat to the public and frustrate the intent of Parliament.
After reviewing the jurisprudence surrounding the application of s. 24 to administrative tribunals, the Supreme Court of Canada articulated a two-part test to determine whether an administrative tribunal has the jurisdiction to issue a particular s. 24 remedy. The two parts are:
- Does the administrative tribunal has explicit or implicit jurisdiction to decide questions of law? If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction,
Last updated on March 12th, 2021
Many individuals think that either a visa officer, a Canada Border Services Agency (“CBSA”) officer or an Immigration and Refugee Board member is biased against them.
This is not an argument to make lightly.
Test for Bias
In Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC),  1 SCR 369, the Supreme Court of Canada held that in order for an individual to demonstrate that a government decision maker is biased, then:
the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
As well, the Supreme Court of Canada has also noted that:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
Finally,Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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