Last updated on April 29th, 2019

Last Updated on April 29, 2019 by Steven Meurrens

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.

Decision final

(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, the Court applied the test that it articulated in Canada (Minister of Citizenship and Immigration) v. Saji, 2010 FCA 100.  There, the Court ruled that:

…, an appeal from the Federal Court to this Court is only precluded by subsection (6) as a decision made “pursuant to an appeal under subsection (5)” if the decision in question relates to the ultimate question, namely, whether the [C]itizenship [J]udge erred in approving or not approving a citizenship application, or in determining a question related to it.

Applying this test, the Federal Court of Appeal found that a decision not to reconsider the decision of a Citizenship Judge is a question that determines the ultimate question, and hence is not appealable.  Accordingly, the FCA found that it was without jurisdiction to hear the appeal.

What is the Relationship Between S. 399(2) of the Federal Court Rules and Functus Officio?

In a concurring opinion, Letourneau J.A. made three observations about the principle of functus officio that are worth discussing.  Functus Officio, latin for “having performed his office”, is a legal term used in the judicial context to describe a court that retains no legal authority because its duties and functions have been completed.  It generally means that a judge cannot re-open proceedings that have completed.

Yet, section 399(2) of the Federal Court Rules provide that:

Setting aside or variance

399. (1) On motion, the Court may set aside or vary an order that was made

(a) ex parte; or

(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding,

if the party against whom the order is made discloses a prima facie case why the order should not have been made.

Setting aside or variance

(2) On motion, the Court may set aside or vary an order

(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or

(b) where the order was obtained by fraud.

The three principles Letournaeu J.A. articled were:

1) A matter pursuant to s. 399(2)(a) is a new fact discovered subsequent to the making of an order.

The matter is a fact or a matter that is new in relation to the first decision. It is also a new fact or matter that casts doubt on the whole process, on the regularity of the first decision, and on how the Federal Court really intended to dispose of the appeal on the merits.

2) Rule 399(2)(a) is an exception to the functus officio principle.

The Rule allows a judge to reconsider and alter his or her decision on account of a new matter, which, ought not to be confused with new evidence and the new evidence rule.

3) The functus officio principle does not apply strictly (and perhaps even not at all) where no further appeal lies from the decision rendered.

The logic behind this principle was articulated by Sopinka J, in the Supreme Court of Canada decision Reekie v. Messervey, [1990] 1 S.C.R. 219, when he wrote that:

In my opinion, it would be extraordinary if the Court were powerless to remedy the injustice that is conceded as present in this case.  As a general principle, the rules of procedure should be the servant of substantive rights and not the master.

…functus officio.  This rule was developed to achieve a finality of proceedings which were subject to a full appeal:  see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848.  Its narrow scope may be appropriate when applied to judgments which can be corrected on appeal, but is inappropriate to decisions of this Court which are not subject to appeal.


This FCA decision will accordingly likely stand for the proposition that while a Federal Court decision regarding a Citizenship Judge’s actions is not appealable, there are avenues to ensure that justice can prevail where previously unknown matters emerge.