Jaballah (Re)

Jaballah (Re)

The motion to stay was dismissed because the special advocates failed to establish special circumstances that would probably have changed Justice MacKay's 2003 finding of new and significant information; issue estoppel does not operate to bar the Ministers from proceeding and abuse of process was not established; the correct test for new evidence is whether it would probably have changed the prior result, and on the record (including Charkaoui II disclosure) no such materially different information was shown.

Citation
2010 FC 80
Parties
Named Individual: Mahmoud Es‑Sayyid Jaballah; Applicants/ministers: Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness; Special Advocate: Special Advocate
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 January 2010
Procedural Posture
Security Certificate Referral Under the Immigration and Refugee Protection Act / Motion to Stay on Grounds of Res Judicata/issue Estoppel/abuse of Process (preliminary)
Outcome
motion dismissed
Legal Topics
Security Certificate, Res Judicata, Issue Estoppel, Cause of Action Estoppel, Abuse of Process, Disclosure, Special Advocates, Charkaoui Decisions
Source Language
English
Immigration Law National Security Constitutional Law Civil Procedure Security Certificate Res Judicata Issue Estoppel Cause of Action Estoppel +4 more

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Parties

Mahmoud Es‑Sayyid Jaballah

Named Individual

Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness

Applicants/ministers

Special Advocate

Special Advocate

Procedural Posture

Security Certificate Referral Under the Immigration and Refugee Protection Act / Motion to Stay on Grounds of Res Judicata/issue Estoppel/abuse of Process (preliminary)

Legal Issues

  1. 1 Whether issue estoppel/res judicata precludes relitigation of the certificate proceeding
  2. 2 Whether special circumstances exist that estop the Ministers from relying on issue estoppel
  3. 3 Whether the constitutional infirmities identified in Charkaoui I/II render prior findings unenforceable

Ratio Decidendi

The motion to stay was dismissed because the special advocates failed to establish special circumstances that would probably have changed Justice MacKay's 2003 finding of new and significant information; issue estoppel does not operate to bar the Ministers from proceeding and abuse of process was not established; the correct test for new evidence is whether it would probably have changed the prior result, and on the record (including Charkaoui II disclosure) no such materially different information was shown.

Court Disposition

motion dismissed

Orders

  • Motion to stay dismissed
  • No order will issue at this time; parties may later propose certified question(s); no interlocutory appeal lies from this decision