The Federal Court of Canada has the ability to review the decisions of administrative tribunals, including decision makers with Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency.  Most people familiar with judicial systems know that decisions of lower courts can be appealed to higher courts.  However, section 74(d) of Canada’s Immigration and Refugee Protection Act and s. 22.2(d) of the Citizenship Act provide that an appeal to the Federal Court of Appeal may only be made if a Federal Court judge, when rendering judgement, the judge certifies that a serious question of general importance is involved and states the question.

It is important to note that once a judge certifies a question an appeal to the Federal Court of Canada is not limited to the question that the judge certified.  In  Kanthasamy v. Canada (Citizenship and Immigration), the Supreme Court stated that (citations removed):

Once an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question and all other issues that might affect the validity of the judgment under appeal. The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appeal concerns “the judgment itself, not merely the certified question.” Simply put, “once a case is to be considered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified”; instead, the Court may “consider all aspects of the appeal before it.”

Exceptions

Despite the firm wording in the IRPA and in the Citizenship Act, the Federal Court of Appeal has allowed certain exceptions to the rule that an appeal cannot be made to the Federal Court of Canada without leave.  These include:

  • the Federal Court’s failure to exercise jurisdiction in circumstances where it must exercise it;
  • a lack of jurisdiction owing to some fundamental flaw in the proceedings going to the root of the Federal Court’s ability to decide the case; and
  • a reasonable apprehension of bias.

Unfortunately, and in something that often surprises litigants, an alleged error of law—even one where “an appeal would certainly succeed if it were entertained”—is not an exception to the statutory bars.

A Lack of Jurisdiction Owing to Some Fundamental Flaw in the Proceedings

As the Federal Court of Appeal noted in Canada (Citizenship and Immigration) v. Tennant, this exception covers cases where:

  • it is alleged that there is a fundamental flaw going to the very root of the Federal Court’s judgment or striking at the Federal Court’s very ability to decide the case—examples include a blatant exceedance of authority obvious from the face of the judgment or an infringement of the rule against actual or apparent bias supported by substantial particularity in the notice of appeal; and
  • the flaw raises serious concerns about the Federal Court’s compliance with the rule of law.

The Federal Court of Appeal further wrote that “the threshold is high—one must show a flaw that is “fundamental,” strikes at “the very root” of the judgment or “the very ability” of the Court to hear the case, in some circumstances has “substantial particularity,” and raises “serious concerns” regarding the rule of law.”

Justice Stratis went on to write that:

In this context, the rule of law takes its flavour from the ills sought to be prevented by this exception. If this exception did not exist, a judge of the Federal Court could always blatantly disregard binding law and do whatever he or she wants in a case based on her or his own ideology, whim or personal idiosyncratic feelings, and then decline to certify a question. The effect? Immunization from any accountability or review.

“L’etat, c’est moi” and “trust us, we got it right” have no place in our democracy. In our system of governance, all holders of public power, even the most powerful of them—the Governor-General, the Prime Minister, Ministers, the Cabinet, Chief Justices and puisne judges, Deputy Ministers, and so on—must obey the law.  From this, just as night follows day, two corollaries must follow. First, there must be an umpire who can meaningfully assess whether the law has been obeyed and grant appropriate relief. Second, both the umpire and the assessment must be fully independent from the body being reviewed.

Tyranny, despotism and abuse can come in many forms, sizes, and motivations: major and minor, large and small, sometimes clothed in good intentions, sometimes not. Over centuries of experience, we have learned that all are nevertheless the same: all are pernicious. Thus, we insist that all who exercise public power—no matter how lofty, no matter how important—must be subject to meaningful and fully independent review and accountability.

In Tennant, the Federal Court issued an order granting an individual citizenship.  The Federal Court of Appeal determined that the statutory bar would not apply, and that the appeal could be heard, because it was not clear whether the Federal Court could order a directed verdict.