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Introduction

In the intricate realm of immigration and citizenship decisions, the role of the Federal Court of Canada shines as a vital safeguard against potential errors and abuses of power. As the administrative tribunals, including the Immigration, Refugees and Citizenship Canada (“IRCC”) and the Canada Border Services Agency (“CBSA”), wield their authority, the Federal Court stands ready to review their judgments. However, this process is not as straightforward as it may seem, and this blog post delves into the nuances of appeals within this jurisdiction.

The Certified Question Quandary

In the legal world, it is common knowledge that lower court decisions can be appealed to higher courts. Yet, the path to appeal in the context of immigration and citizenship cases is paved with specific requirements. Sections 74(d) of the Immigration and Refugee Protection Act (“IRPA”) and 22.2(d) of the Citizenship Act establish that an appeal to the Federal Court of Appeal can only be pursued if a Federal Court judge certifies the involvement of a serious question of general importance and articulates the question after rendering their decision on judicial review. This certification serves as the trigger for an appeal, and once activated, the appeal encompasses not only the certified question but all other relevant issues. A list of “serious questions of general importance” certified by the Court pursuant to section 74 of the IRPA or section 22.2 of the Citizenship Act can be found on the Federal Court website here: https://www.fct-cf.gc.ca/en/pages/law-and-practice/certified-questions-immigrationcitizenship

The Principle of Comprehensive Appellate Review

The notion of comprehensive appellate review was underscored in the landmark case of Kanthasamy v Canada (MCI), 2015 SCC 61. The Supreme Court affirmed that an appeal brought to the Federal Court of Appeal via a certified question mandates a holistic consideration. A holistic approach means that the Court is not confined solely to addressing the certified question but is empowered to examine the judgment, encompassing all aspects of the case. In other words, the scope of the appeal extends beyond the question that originally triggered the appeal process.

Exceptional Circumstances: Expanding the Path to Appeal

While the legislative framework appears stringent, the Federal Court of Appeal has carved out exceptions that broaden the avenue for appeals. These exceptions permit appeals to be pursued without requiring leave of the Court in specific circumstances. These circumstances include:

  • Failure to Exercise Jurisdiction: When the Federal Court neglects to exercise its jurisdiction in a situation where it is obligated to do so, an exception may apply.
  • Fundamental Flaw in Proceedings: An appeal might be granted when a case demonstrates a fundamental flaw that strikes at the very core of the Federal Court’s judgment. Fundamental flaws could encompass a blatant exceedance of authority or a credible allegation of bias.
  • Reasonable Apprehension of Bias: If there is a reasonable apprehension of bias, it could be grounds for an appeal to proceed without leave.

An alleged error of law, even if it seems to be a strong basis for a successful appeal, does not fall under the umbrella of these exceptions, as emphasized by case law.

Furthermore, three (3) key principles have historically guided the certified question regime:

  • Importance and Significance: The certified question must be a serious question that transcends the interests of the parties involved and raises an issue of broad significance or general importance.
  • Appellate Scope: Once certified, the appeal is not limited to the certified question; the Federal Court of Appeal can address all aspects of the decision.
  • Deference: While the certified question does not constrain the appeal, deference may still be appropriate, even on the certified question itself.

However, recent developments, particularly stemming from the Supreme Court’s decision in Vavilov, have sparked debates and led to potential reforms in how certified questions are formulated and addressed. In this blog post, we explore the nuances of the certified question regime, its historical context, the challenges it presents, and potential solutions that could provide greater clarity and consistency in Canadian immigration law.

Challenges Posed by Deference

A significant challenge arises from the requirement of deference, particularly when a certified question involves questions of law or statutory interpretation. Deference encourages the reviewing court to respect the expertise of the administrative decision-maker. However, this can clash with the concept of a certified question that demands a definitive answer – often a yes or no response. As seen in the case of Camayo, this could lead to a paradox where the Federal Court may find the original interpretation reasonable but still provide a different answer when addressing the certified question.

Reformulating Certified Questions: The Camayo Approach

One solution proposed to address the challenge of deference is the reformulation of certified questions. In the case of Camayo, Mactavish JA suggested that certified questions should be framed in terms of reasonableness rather than a simple yes-no format. Framing certified questions in this manner would align with the reasonableness standard applied to statutory interpretation. By phrasing questions in terms of whether a particular statutory interpretation or approach is reasonable, the potential conflict between deference and the requirement for a definitive answer could be mitigated.

Institutional Design and Vavilov’s Influence

The landmark Vavilov decision emphasized the importance of institutional design in determining the standard of review. While some have questioned whether Vavilov’s emphasis on institutional design challenges settled law in the certified question regime, the legislative decision to create a statutory right of appeal strongly indicates correctness review. The certified question procedure, built around appeals, aligns with this default indicator for correctness review.

References as an Alternative Mechanism

Stratas JA, in the case of Mason suggested an alternative mechanism to resolve questions of law – the reference procedure. This process allows a federal board or tribunal to refer a question or issue of law to the Federal Court for determination. Unlike certified questions, references do not carry the historical baggage of deference and could provide a cleaner slate for correctness review.

Conclusion

Canadian immigration law’s certified question regime has undergone significant scrutiny in light of recent developments, including the Vavilov decision. Challenges stemming from the tension between deference and the requirement for a definitive answer have led to calls for reformulating certified questions or considering alternative mechanisms such as references. As the legal landscape continues to evolve, finding the right balance between deference, certainty, and authoritative resolution of legal issues remains a crucial task in ensuring a fair and effective immigration process for all stakeholders involved.

While the path to appeal is guided by stringent requirements, exceptions underscore the Court’s commitment to upholding fundamental rights and ensuring accountability. The principle of comprehensive appellate review serves as a beacon, illuminating the holistic assessment of cases before the Court. Ultimately, the Federal Court’s scrutiny ensures that the ideals of democracy, the rule of law, and accountability remain unwavering in the face of shifting tides.


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