Lafond v. Canada (Citizenship and Immigration)

Lafond v. Canada (Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2023-11-21 Neutral citation 2023 FCA 227 File numbers A-219-23 Decision Content Date: 20231121 Docket: A-219-23 Citation: 2023 FCA 227 [ENGLISH TRANSLATION] CORAM: LOCKE J.A. LEBLANC J.A. ROUSSEL J.A. BETWEEN: GUY LAFOND Applicant and DEPARTMENT OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA (IRCC), DEPARTMENT OF JUSTICE CANADA, BOARD MEMBER RENAUD PAQUET, FEDERAL PUBLIC SECTOR LABOUR RELATIONS AND EMPLOYMENT BOARD (FPSLREB) Respondents Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on November 21, 2023. REASONS FOR ORDER BY: LEBLANC J.A. CONCURRED IN BY: LOCKE J.A. ROUSSEL J.A. Date: 20231121 Docket: A-219-23 Citation: 2023 FCA 227 CORAM: LOCKE, J.A. LEBLANC J.A. ROUSSEL J.A. BETWEEN: GUY LAFOND Applicant and DEPARTMENT OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA (IRCC), DEPARTMENT OF JUSTICE CANADA, BOARD MEMBER RENAUD PAQUET, FEDERAL PUBLIC SECTOR LABOUR RELATIONS AND EMPLOYMENT BOARD (FPSLREB) Respondents REASONS FOR ORDER LEBLANC J.A. [1] The Court is seized of a motion for summary dismissal (the Motion to Dismiss) of the application for judicial review filed by the applicant against an interlocutory decision of a member of the Federal Public Sector Labour Relations and Employment Board (the Board) rendered on August 30, 2023, which granted the respondents’ request for postponement of the hearing on the merits scheduled before the Board from September 11 to 13, 2023. The respondents asked that the hearing be postponed until the week of October 23, 2023. [2] The Motion to Dismiss was filed on September 27, 2023. In response to that motion, on October 6, 2023, the applicant filed a motion record requesting a hearing. Not satisfied that the motion record met the requirements of subrule 369.2(2) of the Federal Courts Rules, SOR/98‑106 (the Rules), the Court issued a direction on November 2, 2023, informing the parties of the following, while placing particular emphasis on the fact that a request for hearing made in the context of a motion to this Court must be made in the record responding to the merits of the motion, not as a separate motion of which it is the central element: [translation] … Under subrule 369.2(2) of the Federal Courts Rules, SOR/98-106 (the Rules), a party requesting a hearing in conjunction with the filing of a motion must do so “as a separate page at the end of the party’s motion record” (emphasis added). Here, the applicant does not appear to have filed a record in response to the Motion to Dismiss, as provided for in rule 365. The Request for Hearing should have been made at the end of that record, in which the applicant’s written representations in response to the merits of the Motion to Dismiss would normally be found, as required by subrule 365(2)(d), not as a separate motion record. In these circumstances, the applicant is directed to advise the Registry, in writing, no later than Monday, November 6, 2023, whether the Request for Hearing was in fact intended to be the reply record to the Motion to Dismiss required by rule 365. If so, the Request for Hearing will be deemed to have been made in accordance with the Rules and will be ready for disposition, as will the Motion to Dismiss. If not, the applicant will have until November 15 to serve and produce the record set out in rule 365, [to which] he must attach his request for a hearing, as set out in subrule 369.2(2). To the extent that they differ from the representations found at pages 1 to 5 of the Request for Hearing, the respondents will have until November 22, 2023, to respond to the appellant’s written representations on the merits of the Motion to Dismiss, if they wish to do so, by serving and filing an Amended Reply by that date. … [3] On November 6, 2023, in response to that direction, the applicant filed with this Court a record entitled [translation] “Record – subrule 369(2) Hearing requested to consider the motion by the Attorney General of Canada – Updated November 5, 2023”, in which he essentially reiterated his request for a hearing. [4] On November 9, 2023, the Court issued a further direction in which it informed the parties that it deemed the applicant’s reply to the Motion to Dismiss through the filing of motion records dated October 6 and November 6, 2023 to have been made in accordance with the Rules, and that both the Request for Hearing and the Motion to Dismiss were ready for disposition, subject to the respondents being given an opportunity to respond to the motion record filed by the applicant on November 6, 2023. [5] On November 14, 2023, the respondents informed the Court that they did not intend to respond to the motion record filed by the applicant on November 6, 2023. [6] The Court therefore considers that the applicant was offered the full opportunity to respond to the Motion to Dismiss and that it is therefore ready for disposition. [7] The first issue is the appropriateness of holding a hearing. Under subrule 369.2(1), unless the Court orders otherwise, any motion brought before it shall be decided on the basis of written representations from the parties. In accordance with the Court’s practice, only in exceptional circumstances will the Court permit a hearing to be held for the purpose of determining a motion. [8] In this case, the applicant is requesting a hearing on the grounds that he is representing himself, that he is not a lawyer and that he was unable to find one to take over from his professional association, which decided to no longer represent him in the proceedings currently pending before the Board. Unfortunately for him, these types of relatively common circumstances are not exceptional enough to justify an exemption from the rule that motions before the Court are decided on the basis of written representations from the parties. [9] As for the Motion to Dismiss, to be successful, the respondents had to show that the application for judicial review filed in this case by the applicant is bound to fail. In my view, this is the case because it runs directly counter to the jurisprudential principle applied many times by this Court that, absent exceptional circumstances, parties to an administrative process cannot proceed to the court system until that process has run its course (Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 FCR 332 at para. 31; Dugré v. Canada (Attorney General), 2021 FCA 8, [2021] FCJ No. 50 (QL) at para. 37 (Dugré); Herbert v. Canada (Attorney General), 2022 FCA 11 at para. 8 (Herbert)). The purpose of this rule is to prevent “fragmentation of the administrative process and piecemeal court proceedings”, to eliminate “the large costs and delays associated with premature forays to court”, and to avoid “the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway” (C. B. Powell at para. 32, cited in Dugré at para. 34). The principle, which applies “to all matters that arise” before the administrative decision-maker (Klos v. Canada (Attorney General), 2021 FCA 238, 2021 CarswellNat 5590 at para. 6) and may even be raised by the Court on its own initiative (Dugré at para. 29), is “next to absolute” (Dugré at para. 37). [10] Only circumstances where the consequences of an interlocutory decision by an administrative decision-maker are “so ‘immediate and radical’ that they call into question the rule of law” can justify a departure from this principle (Dugré at para. 35, citing Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 FCR 467 at paras. 31–33, set aside on a different point, 2016 SCC 29, [2016] 1 SCR 770). Even constitutional questions or questions qualified as “jurisdictional” are no exception (Dugré at para. 36). [11] Apart from these rare exceptions, any interlocutory questions that may have affected the legality of the decision can be raised only during the judicial review of the administrative decision-maker’s final decision. [12] In my opinion, an interlocutory decision granting a request for a five-week postponement clearly does not fall into the category of decisions having consequences “so ‘immediate and radical’ that they call into question the rule of law”, even if, as the applicant seems to argue, the decision indicates a certain bias on the part of the administrative decision-maker. Indeed, this type of allegation must be raised at the first opportunity before the administrative decision‑maker, who then has a duty to consider it (Transport Car-Fré v. Lecours, 2018 FC 1133 at para. 42, citing Bongwalanga v. Canada (Minister of Citizenship and Immigration), 2004 FC 352 at paras. 15–16 and Ahmed v. Canada (Citizenship and Immigration), 2018 FC 353 at para. 63). It is only once the final decision has been rendered that such allegations, if they are substantiated, can be used to demonstrate that the process leading to that decision is tainted by a breach of the rules of procedural fairness. [13] For these reasons, this judicial review is in my view premature and, on that basis, bound to fail. In my opinion, the Motion to Dismiss should therefore be granted. [14] The respondents are also asking that the style of cause of this proceeding be amended to name the Attorney General of Canada as the sole respondent. In light of my conclusion on the summary dismissal of this proceeding, I do not believe there is any reason to order an amendment to the style of cause. In short, in the circumstances, that request has become moot. [15] Finally, the respondents are seeking costs. Since I propose to grant the Motion to Dismiss, I would allow this request but would do so as if they were one party. “René LeBlanc” J.A. “I agree. George R. Locke J.A.” “I agree. Sylvie E. Roussel J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-219-23 STYLE OF CAUSE: GUY LAFOND v. DEPARTMENT OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA (IRCC), DEPARTMENT OF JUSTICE CANADA, BOARD MEMBER RENAUD PAQUET, FEDERAL PUBLIC SECTOR LABOUR RELATIONS AND EMPLOYMENT BOARD (FPSLREB) DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: LEBLANC J.A. CONCURRED IN BY: LOCKE J.A. ROUSSEL J.A. DATED: November 21, 2023 WRITTEN REPRESENTATIONS BY: Guy Lafond FOR THE APPLICANT On his own behalf Mathieu Cloutier For the respondents SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For the respondents