[2000] 1 F.C. 286
IMM-5874-98
Jose Roberto Hernandez Guzman (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Guzman v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Teitelbaum J.—Calgary, August 16; Ottawa, September 3, 1999.
Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Application to set aside dismissal of application for leave, judicial review — Due to misunderstanding of Federal Court Rules, applicant’s counsel not perfecting, within legal delays, application for leave to apply for judicial review — Notwithstanding Court’s inherent jurisdiction to deal with matter involving law of immigration because of Federal Court’s exclusive jurisdiction in immigration matters, only F.C.A. having jurisdiction to review final decision of F.C.T.D. — Applicant’s lack of English skills not basis for reopening matter already dismissed by final order — Questions certified: given that Federal Court Act, s. 18 grants F.C.T.D. exclusive jurisdiction to review decisions of immigration tribunals, whether F.C.T.D. having inherent jurisdiction to (1) vindicate legal right independent of statutory grants contained in Federal Court Act, Federal Court Rules, 1998, Immigration Act; (2) set aside order dismissing application for leave, judicial review, independent of rr. 397, 398.
Practice — Judgments and orders — Reversal or variation — Federal Court Rules, 1998, r. 399(2)(a) permitting Court, on motion, to set aside, vary order by reason of matter arising, discovered subsequent to making of order — Applicant’s previous counsel not perfecting application record on time due to ignorance of Rules — Only apparent after application for leave dismissed — R. 399(2) not applicable to vary, set aside final judgment of Court because party retained services of lawyer not properly versed in rules of Court — Question certified: whether Court can set aside order pursuant to r. 399(2) granted solely due to counsel’s failure to understand, comply with procedural requirements.
Practice — “Gap” rule — Federal Court Rules, 1998, r. 4 permitting Court to provide for any procedural matter not provided for in Rules — Only applies in respect of procedural matters — Failure to file application record not merely procedural technicality, cannot be disposed of in manner provided for under r. 4.
This was an application to set aside or reverse the dismissal of an application for leave and judicial review, so as to permit the applicant to file a new application for leave and judicial review without requesting an extension of time to do so.
The applicant was a citizen of El Salvador and a permanent resident of Canada. In 1995 and 1996 he was convicted of very serious criminal offences, for which he was sentenced to a term of 7 years and 20 days. An opinion letter, which indicated that the applicant constituted a danger to the public in Canada, was signed by the Minister’s delegate and the applicant was ordered deported. An appeal from the deportation order was filed, and applicant’s then counsel filed an application for leave and judicial review concerning the danger certificate. The applicant sought an extension of time within which to file the application for leave as a result of the Minister’s opinion not having been sent to the applicant’s counsel in a timely fashion. Due to a misunderstanding of Federal Court procedure, the applicant’s then counsel failed to perfect, within the legal delays, the application for leave by failing to serve and file the application record, causing the application for leave and judicial review to be dismissed.
The issues were: (1) whether the Federal Court has jurisdiction to reconsider the dismissal of an application for leave and judicial review; and (2) whether the applicant can file a new application for leave and judicial review outside of the time period prescribed under the Act without applying for an extension of time.
Held, the application should be dismissed.
Federal Court Rules, 1998, rule 4 permits the Court to provide for any procedural matter not provided for in the Rules. This rule applies only in respect of procedural matters and not to circumstances such as those raised by this application. The failure to file an application record is not merely a procedural technicality and therefore cannot be disposed of in the manner provided for under this rule.
That the applicant was lacking in English skills cannot be used as a basis for reopening a matter which has already been dismissed by a final order.
Paragraph 399(2)(a) of the Federal Court Rules, 1998 permits the Court, on motion, to set aside or vary an order by reason of a matter that arose or was discovered subsequent to the making of the order. The applicant’s previous counsel was ignorant of the Rules as they applied to this case. The applicant submitted that this only became apparent after the application for leave had been dismissed. Subsection 399(2) was not meant to apply to vary or set aside a final judgment of the Court because one of the parties thereto had retained the services of a lawyer who was not properly versed in the law or the rules of the Court.
Notwithstanding the Court’s inherent jurisdiction to deal with a matter involving the law of immigration because of the Federal Court’s exclusive jurisdiction in immigration matters, this Court did not have the jurisdiction to set aside or vary a final judgment of the Trial Division. Only the Appeal Division of the Federal Court has such jurisdiction.
The applicant was well beyond the time prescribed by the Immigration Act, subsections 82.1(3) and (5) and was therefore required to file an application for an extension of time with his application for leave and judicial review. The applicant had failed to comply with the statutory time limit or extension of time provision.
The following questions were certified: (1) whether the Court can set aside an order pursuant to Federal Court Rules, 1998, subsection 399(2) which was granted solely due to counsel’s failure to understand and comply with procedural requirements; (2) given that Federal Court Act, section 18 grants the Trial Division exclusive jurisdiction to review decisions made by immigration tribunals, whether the Trial Division has inherent jurisdiction to vindicate a legal right independent of statutory grants contained in the Federal Court Act, the Federal Court Rules, 1998 and the Immigration Act; and (3) given that Federal Court Act, section 18 grants the Trial Division exclusive jurisdiction to review decisions of immigration tribunals, whether the Trial Division has the inherent jurisdiction to set aside an order dismissing an application for leave and for judicial review, independent of rules 397 and 398.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, s. 650 (as am. by S.C. 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77).
Federal Court Rules, 1998, SOR/98-106, rr. 3, 4, 397, 399.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d) (as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16), 70(5) (as am. by S.C. 1995, c. 15, s. 13), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73).
CASES JUDICIALLY CONSIDERED
APPLIED:
Metodieva v. Minister of Employment and Immigration (1991), 132 N.R. 38 (F.C.A.).
DISTINGUISHED:
Beilin v. Canada (Minister of Employment and Immigration) (1994), 88 F.T.R. 132 (F.C.T.D.); Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; (1998), 157 D.L.R. (4th) 385; 6 Admin. L.R. (3d) 1; 22 C.P.C. (4th) 1; 224 N.R. 241.
APPEARANCES:
G. Michael Sherritt for applicant.
William B. Hardstaff for respondent.
SOLICITORS OF RECORD:
Sherritt Greene, Calgary, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Teitelbaum, J: On or about June 30, 1999, the applicant filed a notice of motion for, as is stated therein:
1. the Order of this Court dated February 8, 1999, whereby the Application for Leave and Judicial Review in this matter was dismissed due to the failure of the Applicant to file an Application Record, be set aside or reversed;
2. the Applicant be permitted to file a new Application for Leave and Judicial Review without further application for an extension of time;
3. the new Application for Leave and Judicial Review shall be considered an application de novo.
4. such other relief as this Honourable Court deems just and equitable.
[2] The applicant states in his notice of motion that the application “is being made pursuant to Rules 3, 4, 54 and 399(2)(a) of the Federal Court Rules, 1998 and Section 82.1 of the Immigration Act”.
FACTS
[3] The applicant is a citizen of El Salvador and a permanent resident of Canada, having been landed in Canada on March 11, 1995.
[4] On April 27, 1995, the applicant was convicted of, what I would call very serious criminal offences “including sexual assault as well as procuring”. On October 10, 1996, the applicant was convicted “of a further offence of sexual assault”.
[5] The applicant was sentenced, for, I believe, all the above convictions, to a term of 7 years and 20 days effective April 25, 1995.
[6] On August 27, 1997, a delegate of the Minister of Citizenship and Immigration signed an opinion letter pursuant to subsection 70(5) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1995, c. 15, s. 13)] (the Act) that the applicant constituted a danger to the public in Canada.
70. …
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1)(a.1); or
(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
[7] On or about November 4, 1998, the applicant was ordered deported as a result of an adjudicator having found him described pursuant to paragraph 27(1)(d) [as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16] of the Act, which reads:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
…
(d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more may be, imposed,
[8] An appeal from the deportation order was filed by the applicant at the Appeal Division of the Immigration and Refugee Board of Canada.
[9] On or about November 13, 1998, applicant’s then counsel filed, on behalf of the applicant, in the Federal Court of Canada, Trial Division, an application for leave and judicial review “concerning the danger certificate issued against the applicant”.
[10] The applicant sought an extension of time within which to file the application for leave as a result of the Minister’s opinion not having been sent to the applicant’s counsel “in a timely fashion”.
[11] Due to a misunderstanding of the Federal Court procedure and, what appears to be a lack of knowledge of the Federal Court Rules, 1988, [SOR/98-106] the applicant’s then counsel failed to perfect, within the legal delays, the application for leave by failing to serve and file the applicant’s application record.
[12] The failure to serve and file an application record within the legal delays caused the application for leave and for judicial review to be dismissed by an order of Madam Justice McGillis dated February 8, 1999.
[13] The applicant now brings the present application to set aside or reverse the order of Madam Justice McGillis of February 8, 1999 so as to permit the applicant to file a new application for leave and judicial review without requesting an extension of time to do so.
PARTIES’ POSITIONS
Applicant’s Position
[14] The applicant submits that the Federal Court Rules, 1998 contain no specific directions as to the steps which may be taken in the interests of justice to reopen a matter in the present circumstances, nor do they contain a specific prohibition against the reopening in the circumstances presently before the Court.
[15] The applicant submits that rule 3 of the Federal Court Rules, 1998 directs the Court to interpret the Rules in such a manner that “not only are the interests of expeditiousness and economy served, but that a just determination is secured”. He also submits that Rule 4 of the Federal Court Rules, 1998 permits the Court to dispose of procedural matters not provided for in the Rules by analogy to any other Act of Parliament or by reference to the practice of the Superior Court to which the subject-matter most closely relates.
[16] The applicant also submits that, pursuant to subsection 399(2) of the Federal Court Rules, 1998, the Court may set aside or vary an order, inter alia, by reason of a matter that arose or was discovered subsequent to the making of the order.
[17] The applicant submits that the failure to file the record was not the fault of the applicant, but rather the fault of his previous counsel, after having received proper instructions by him. It is submitted that due to the applicant’s lack of facility in English, he was unable to ensure that his counsel was acting properly in his case and this resulted in an order which is prejudicial towards him as his application for judicial review was not determined on its merits.
[18] It is further argued that the Federal Court has inherent jurisdiction over its own process and that the Court should intervene and reopen this case to ensure that justice is done.
Respondent’s position
[19] The respondent submits that the applicant’s application was dismissed for failure to perfect due to inadvertence which is not a basis for invoking either rule 397 or rule 399. Relying on the decision of the Federal Court of Appeal in Metodieva v. Minister of Employment and Immigration (1991), 132 N.R. 38 (F.C.A.), the respondent submits that the order made is final and subject only to appeal.
[20] In response to the argument that the Rules contain no specific prohibition regarding reopening a matter in circumstances such as these, the respondent submits that the general rules must apply which provides that the order may only be reconsidered on appeal.
[21] Thirdly, the respondent submits that the applicant cannot file a new application for leave and judicial review without applying for an extension of time. It is argued that there has been no application filed for an extension of time, the applicant is beyond the time prescribed by the Act, and therefore cannot bring this application.
ISSUES
[22] The applicant raises two issues:
(1) Does the Federal Court have jurisdiction to reconsider the order of Madam Justice McGillis made on February 8, 1999?
(2) Can the applicant file a new application for leave and judicial review outside of the time period prescribed under the Act without applying for an extension of time?
STATUTORY PROVISIONS
Federal Court Rules, 1998
397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
…
399. …
(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.
ANALYSIS
[23] During the hearing of this matter, counsel for the applicant conceded that pursuant to rule 397, the Court cannot grant the relief sought in the present application.
[24] In considering the jurisdiction of the Court to allow this application, I have thoroughly reviewed the jurisprudence on the allowable grounds for granting leave to reconsider a final order and have examined each of the Federal Court Rules, 1998 which might allow such an application. The Rules and the case law are clear. There is no authority to allow me to review a final decision of the Trial Division in the circumstances of the present case.
[25] The Federal Court of Appeal addressed this issue in Metodieva, supra, which concerned an application for appeal which was dismissed and a new application on the same matter. In the decision, Justice Décary states at page 43:
I think it is important to point out that the Court does not have jurisdiction to decide the matter again, and that this is so whatever the reason for dismissing the first application for leave … the fact that an application was dismissed for a procedural defect does not in any way change the fact that the order made is final and not subject to be reconsidered, apart from the allowable cases.
[26] In his submission, the applicant relies on rule 4 of the Federal Court Rules, 1998, by analogy to section 650 of the Criminal Code [R.S.C., 1985, c. C-46 (as am. by S.C. 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77)], as a basis to reconsider the decision of Madam Justice McGillis. Rule 4 states:
4. On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject matter of the proceeding most closely relates.
[27] The respondent has submitted this rule is inapplicable on the facts of this case. I am of the view that this rule applies only in respect of procedural matters and not to circumstances such as those raised by this application. The failure to file an application record is not merely a procedural technicality and therefore cannot be disposed of in the manner provided for under this rule.
[28] It was further submitted by the applicant that the failure to file a record is partly attributable to the applicant’s minimal English skills. However, the fact that the applicant is lacking in English cannot be used as a basis for reopening a matter which has already been dismissed by a final order. In Metodieva, the Court of Appeal considered the relevancy of the applicant’s status as a “foreigner” at page 43 of the reasons:
… the fact that the applicant is “a foreigner in Canada” does not confer on her any privilege to be ignorant of Canadian law or any special status in respect of errors which may be made by her or by her counsel.
[29] I believe that one of the applicant’s strongest submissions deals with the interpretation that should be given to paragraph 399(2)(a) of the Federal Court Rules, 1998.
[30] The applicant submits that the fact that the applicant’s previous counsel was ignorant of the Federal Court Rules, 1998 only became apparent or was discovered after Madam Justice McGillis issued her order.
[31] There is no doubt that the evidence placed before me indicates that the applicant’s previous counsel was ignorant of the Federal Court Rules, 1998 as they are applicable to the present case.
[32] In his affidavit sworn on May 27, 1999, the applicant’s previous counsel states, in paragraphs 8 and 9:
8. I was also retained by the Legal Aid Society of Alberta to act on behalf of the Applicant and to represent him in the Federal Court of Canada’s Trial Division to challenge the Minister’s opinion that the Applicant constituted a danger to the public. Accordingly, on November 13, 1999, I as counsel on behalf the Applicant, filed an Application for Leave and Judicial Review concerning the danger certificate issued against the Applicant. I also sought an extension of time within which to file the Application as a result of the opinion not having been served on me as counsel for the Applicant in a timely fashion.
9. I was of the opinion that having filed the Application for Leave and Judicial Review on behalf of the Applicant, nothing further was required to be done and that I would only have to wait until such time as this Honourable Court rendered a decision as to whether or not we would be entitled to proceed with the matter thereafter. As a result of my misunderstanding of the Court procedure, the Application for Leave and Judicial was never perfected.
[33] In the case of Beilin v. Canada (Minister of Employment and Immigration) (1994), 88 F.T.R. 132 (F.C.T.D.), Mr. Justice Strayer, sitting as a judge ex officio of the Trial Division, dealt with a similar matter.
[34] The facts of the Beilin case are found in paragraphs 2 and 3. They are:
A decision was made by the Convention Refugee Determination Division of the Immigration and Refugee Board on October 18, 1993 that the applicants are not convention refugees. This decision was communicated to them on October 26, 1993. According to an affidavit filed on behalf of the applicants, they consulted a lawyer, Mr. Robert Gertler, who helped them prepare and file an initial application on November 9, 1993 for leave to commence an application for judicial review. At the same time they made a request to Legal Aid. I can only deduce from the affidavit that they did not in fact obtain legal aid and that they were unable to pay Mr. Gertler the fee he required to file a record on their behalf. According to the affidavit, on December 1, 1993 they then proceeded to retain a person in Toronto whom they thought to be a lawyer and he prepared a letter of that date for the signature of one of the applicants, addressed to the Federal Court. This letter advised the Court that they had been unable to obtain legal aid and that they were trying to arrange for a loan or a work permit so that they could earn money to pay for a legal fee. The letter requested an extension of the period of time for submitting the required documents. According to the affidavit the applicants were then contacted by the Registry of the Federal Court on December 3, 1993 and they were given advice as to how to file a proper request for an extension of time. The Registry sent them materials to assist them and these were taken to the person whom they thought was acting as their lawyer who assured one of the applicants that he would file a proper request. Nothing further was received by the Court after the letter of December 1, 1993.
When the matter was put before me in February, 1994 I issued an order on February 15th as follows:
The time for filing the applicant’s record having expired on or about December 9, 1993, and no communication having been received from the applicant since December 1, 1993, the application is dismissed in accordance with Rule 14(1).
The applicants according to their affidavit received this decision “in the middle of March, 1994”. According to them the person they thought was acting as their counsel refused to provide any explanation. It was not until September 8, 1994 that the applicants appear to have taken any further action, having contacted the Federal Court Registry on that date. This application for reconsideration of my February 15, 1994 order, and for an extension of time for filing the application record, was not filed in this Court until September 15, 1994. The notice of motion purports to be based on both rule 1733 and rule 337.
[35] In paragraph 5, Mr. Justice Strayer states:
In principle rule 1733 [now paragraph 399(2)(a)] is applicable. Under this rule an order can be varied because of a matter arising subsequent to the making of the order or subsequently discovered, if such matter could not have been discovered with due diligence prior to the making of the order, which if known at that time would have altered the judgment. I am prepared to assume without so finding that the applicants exercised due diligence when retained a person who they now believe was not a lawyer, and when they relied on him to file the application record. Further, had that information been available to me at the time I made the order I am prepared to assume that I would have granted an extension, although it would have been for a short and specific period.
[36] Unfortunately for the applicant, I am not convinced that the facts of the Beilin case are sufficiently similar to the case at bar.
[37] In the Beilin case, the applicant believed he had retained a lawyer to act on behalf of the applicant. It turned out the person hired was not a lawyer.
[38] In the case at bar, the applicant thought he retained a lawyer and did, in fact, retain the services of a lawyer.
[39] Unfortunately, the applicant retained or was given a lawyer who was ignorant of the Federal Court of Canada’s Rules and particularly as the rules are applied to immigration matters.
[40] I am satisfied that subsection 399(2) of the Rules was not meant to apply to vary or set aside a final judgment of the Court because one of the parties to the final judgment had retained the services of a lawyer who, it is subsequently found out, was not properly versed in the law or the rules of a Court.
[41] It was also submitted that I had the inherent jurisdiction to set aside or vary the final judgment of Madam Justice McGillis. Counsel submits that “by reason of this Court’s inherent jurisdiction over its own process, it is respectfully submitted that the Court has jurisdiction to intervene herein to ensure justice is done”.
[42] In the case of Canada (Human Rights Commission v. Canadian Liberty Net, [1998] 1 S.C.R. 626, at pages 656-659, Mr. Justice Bastarache states:
The notion of “inherent jurisdiction” arises from the presumption that if there is a justiciable right, then there must be a court competent to vindicate the right. The issue addressed in Board v. Board was whether a failure to grant jurisdiction should be read as implicitly excluding jurisdiction. In that context, the doctrine of inherent jurisdiction requires that only an explicit ouster of jurisdiction should be allowed to deny jurisdiction to the superior court. In my view, the case does not stand for the fundamentally different proposition that statutes which purport to grant jurisdiction to another court should be read narrowly so as to protect the jurisdiction of the superior court. That is not the purpose of the doctrine of inherent jurisdiction, which is simply to ensure that a right will not be without a superior court forum in which it can be recognized. Although certain language in Board v. Board could be taken to stand for the former proposition, a reading of the entire case indicates that a choice was not being made between the jurisdiction of the s. 96 court and the jurisdiction of the federal court (which was extremely narrow at the time). The Privy Council simply did not consider the possible jurisdiction of the Exchequer Court in Board v. Board. The case was not an attempt to answer the question “which court?”, but rather “is there a court?” The former question can only be determined by considering the constitutional, statutory and historical factors which I have canvassed above, while the latter can be dealt with by means of the simple presumption that only an express ouster will deny jurisdiction to the superior court to hear such a case.
The statutory position of the Federal Court has changed since Board v. Board, a case in which the possible jurisdiction of the Exchequer Court was not even considered, because its jurisdiction at that time was so marginal. The passage of the Federal Court Act in 1971 substantially expanded the jurisdiction of the Exchequer Court (and changed its name to the Federal Court of Canada), and by necessary implication, removed jurisdiction over many matters from the provincial superior courts. The new Federal Court of Canada was granted an expanded jurisdiction, not only by specific enumeration of new subject matters, as, for example, in s. 23(c) of the Act, but also in a more general fashion. In essence, by virtue of ss. 3, 18, and 18.1, it was made a court of review and of appeal which stands at the apex of all the administrative decision-makers on whom power has been granted by individual Acts of Parliament. Significant confusion had developed prior to the Act as superior courts in different provinces reached conflicting outcomes as to the disposition of applications for judicial review from these administrative decision-makers, as to the proper test for standing, and as to the geographical reach of their decisions (I. Bushnell, The Federal Court of Canada: A History, 1875-1992 (1997), at p. 159). The growth of administrative decision-makers adjudicating a myriad of laws within federal competence, without a single court to supervise that structure below the Supreme Court of Canada, created difficulties which an expanded Federal Court was intended to address.
These are the historical and constitutional factors which led to the development of the notion of inherent jurisdiction in provincial superior courts, which to a certain extent has been compared and contrasted to the more limited statutory jurisdiction of the Federal Court of Canada. But in my view, there is nothing in this articulation of the essentially remedial concept of inherent jurisdiction which in any way can be used to justify a narrow, rather than a fair and liberal, interpretation of federal statutes granting jurisdiction to the Federal Court. The legitimate proposition that the institutional and constitutional position of provincial superior courts warrants the grant to them of a residual jurisdiction over all federal matters where there is a “gap” in statutory grants of jurisdiction, is entirely different from the proposition that federal statutes should be read to find “gaps” unless the words of the statute explicitly close them. The doctrine of inherent jurisdiction raises no valid reasons, constitutional or otherwise, for jealously protecting the jurisdiction of provincial superior courts as against the Federal Court of Canada.
In my view, the doctrine of inherent jurisdiction operates to ensure that, having once analysed the various statutory grants of jurisdiction, there will always be a court which has the power to vindicate a legal right independent of any statutory grant. The court which benefits from the inherent jurisdiction is the court of general jurisdiction, namely, the provincial superior court. The doctrine does not operate to narrowly confine a statutory grant of jurisdiction; indeed, it says nothing about the proper interpretation of such a grant. As noted by McLachlin J. in Brotherhood, supra, at para. 7, it is a “residual jurisdiction”. In a federal system, the doctrine of inherent jurisdiction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court.
As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts, in this case the Human Rights Act, Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction.
[43] I take from the above that the Federal Court of Canada, because of its exclusive jurisdiction in immigration matters, has inherent jurisdiction to deal with any matter involving the law of immigration.
[44] Notwithstanding my finding of having inherent jurisdiction to deal with a matter involving the law of immigration because of the Federal Court’s exclusive jurisdiction in immigration matters, I am not convinced that I have the jurisdiction to set aside or vary a final judgment of the Federal Court—Trial Division.
[45] I am satisfied that only the Appeal Division of the Federal Court has this jurisdiction.
[46] Section 82.1 of the Immigration Act, R.S.C., 1985, c. 1-2 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73] states:
82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court—Trial Division.
[…]
(3) An application under this section for leave to commence an application for judicial review shall be filed with the Federal Court—Trial Division and served within fifteen days after the day on which the applicant is notified of the decision or order or becomes aware of the other matter.
[…]
(5) A judge of the Federal Court—Trial Division may, for special reasons, allow an extended time for filing and serving an application under this section for leave to commence an application for judicial review.
[47] In the case at bar, the applicant requests that he be permitted to file an application for leave and judicial review without filing an application for an extension of time. Clearly, this is contrary to subsections 82.1(3) and (5) of the Immigration Act. The applicant is well beyond the time prescribed by the Act and is therefore required to file an application for an extension of time with his application for leave and judicial review. Unfortunately, the applicant has failed to comply with the statutory time limit or extension of time provision.
[48] The application to vary or set aside the order of Madam Justice McGillis is denied.
[49] The applicant submits the following questions for certification:
Rule 399(2)
1. Can the Court set aside an Order pursuant to Rule 399(2) of the Federal Court Rules which was granted solely due to counsel’s failure to understand and comply with procedural requirements?
Inherent Jurisdiction
2. Given that section 18 of the Federal Court Act grants the Trial Division exclusive jurisdiction to review decisions made by immigration tribunals, does the Trial Division have inherent jurisdiction to vindicate a legal right independent of statutory grants contained in the Federal Court Act, the Federal Court Rules and the Immigration Act?
3. Given that section 18 of the Federal Court Act grants the Trial Division exclusive jurisdiction to review decisions of immigration tribunals, does the Trial Division have the inherent jurisdiction to set aside an Order dismissing an Application for Leave and for Judicial Review, independent of Federal Court Rules 397 and 399?
[50] I am satisfied that the above questions should be certified as I am satisfied the above questions raise a serious question of general importance which should be considered by the Federal Court of Appeal.