2016 FCA 237, 2016 FCA 237

[2017] 1 F.C.R. 69 A-205-15 2016 FCA 237 Obaidullah Siddiqui ( Appellant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Siddiqui v. Canada (Citizenship and Immigration) Federal Court of Appeal, Nadon, Rennie and Gleason JJ.A.—Ottawa, September 23, 2016.

Practice — Judgments and Orders — Reversal or Variation — Motion pursuant to Federal Courts Rules (Rules), r. 399 seeking orders to (1) set aside judgment in 2016 FCA 134 , [2017] 1 F.C.R. 56 ; (2) reconvene hearing of appeal or, alternatively, set aside costs granted to respondent pursuant to Rules, r. 397 — On April 28, 2016, appellant requesting opportunity to make representations with respect to Court’s April 27, 2016 decision in Bermudez v.

Canada (Citizenship and Immigration) (Bermudez) — Court signing judgment, reasons for judgment in 2016 FCA 134 on April 29, 2016 dismissing appellant’s appeal with costs — Judgment sent to Registry for filing, communication to parties — Court unaware of Bermudez decision — Court issuing direction that no further submissions could be entertained — Appellant stating, inter alia, discovery of Bermudez constituting matter that arose or was discovered subsequent to order — Whether to set aside or vary judgment in 2016 FCA 134; whether to set aside costs order made against appellant therein — Appellant not succeeding on request to set aside judgment in 2016 FCA 134, have hearing of appeal reconvened before new panel — Discovery of Bermudez, communication thereof to Court’s panel herein not constituting matter that arose or was discovered subsequent to making of judgment in 2016 FCA 134 — Velupillai v.

Canada (Minister of Citizenship and Immigration) wrongly decided — Ayangma v. Canada standing for proposition that case law not constituting “matter” within meaning of Rules, r. 399(2) (a) — Appellant correctly making submission on costs — No special reasons to grant costs against appellant in 2016 FCA 134 pursuant to Federal Courts Citizenship, Immigration and Refugee Protection Rules , r. 22 — Court overlooked r. 22 — Judgment of April 29, 2016 varied in regard to issue of costs — Motion allowed in part.

This was a motion by the appellant pursuant to rule 399 of the Federal Courts Rules (Rules) for (1) an order to set aside the Court’s judgment in 2016 FCA 134 , [2017] 1 F.C.R. 56, and (2) an order reconvening the hearing of the appeal before a new panel or, in the alternative, an order pursuant to rule 397 of the Rules setting aside the costs granted to the respondent. On April 28, 2016, the appellant wrote to the Court requesting the opportunity to make representations with respect to the Court’s decision in Bermudez v.

Canada (Citizenship and Immigration) , 2016 FCA 131 , [2017] 1 F.C.R. 128 ( Bermudez ) rendered on April 27, 2016. On April 29, 2016, the Court signed the judgment and reasons for judgment in 2016 FCA 134 that dismissed the appellant’s appeal with costs. Accordingly, on that day, the judgment and the reasons were sent to the Registry of the Court for filing and communication to the parties. The appellant’s letter of April 28, 2016 had not yet been brought to the Court’s attention by the Registry, nor was the Court aware of the decision in Bermudez .

The Court issued a direction on May 9, 2016 advising the parties that the Court would not entertain further submissions. The appellant stated, inter alia , that the discovery of Bermudez constituted “a matter that arose or was discovered subsequent to the making of the order”. At issue was whether the judgment of April 29, 2016 in 2016 FCA 134 should be set aside or varied, and whether the order of costs made against the appellant therein should be set aside. Held , the motion should be allowed in part.

The appellant could not succeed on his request that the judgment of April 29, 2016 be set aside or that the hearing of the appeal be reconvened before a new panel. The discovery of Bermudez by the appellant and the communication of that decision to this Court’s panel did not constitute a matter that arose or was discovered subsequent to the making of the April 29, 2016 judgment. In making his submissions that the discovery of Bermudez constituted “a matter” within the meaning of paragraph 399(2) (

a) of the Rules , the appellant relied on the decision in Velupillai v. Canada (Minister of Citizenship and Immigration) . However, the Federal Court was wrong in concluding as it did in that decision. The Court’s decision in Ayangma v. Canada stands for the proposition that case law, whether existing prior to or after the decision at issue, does not constitute a “matter” within the meaning of paragraph 399(2)(a). The appellant was correct in making his submission on costs.

Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules provides that no costs shall be awarded in respect of an application for leave, an application for judicial review or an appeal unless the Court so orders for special reasons. There was no finding that there were special reasons to grant costs against the appellant. The Court simply overlooked rule 22 and consequently, it was open to the Court to reconsider that part of its judgment pursuant to subsection 397(2) of the Rules . Hence, the judgment of April 29, 2016 was varied in regard to the issue of costs.

STATUTES AND REGULATIONS CITED Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22, r. 22. Federal Courts Rules , SOR/98-106, rr. 397, 399. CASES CITED APPLIED:

Ayangma v. Canada, 2003 FCA 382, 313 N.R. 312. OVERRULED: Velupillai v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 314, (F.C.T.D.). CONSIDERED: Collins v. Canada, 2011 FCA 171, [2011] 6 C.T.C. 13. REFERRED TO: Bermudez v. Canada (Citizenship and Immigration), 2016 FCA 131, [2017] 1 F.C.R. 128.

MOTION by the appellant pursuant to rule 399 of the Federal Courts Rules for (1) an order to set aside the judgment in 2016 FCA 134([2017] 1 F.C.R. 56, affg 2015 FC 329, [2015] 4 F.C.R. 409), and (2) an order reconvening the hearing of the appeal before a new panelor, in the alternative, an order pursuant to rule 397 setting aside the costs granted to the respondent. Motion allowed in part. WRITTEN REPRESENTATIONS Douglas Cannon for appellant. Brett J. Nash for respondent. SOLICITORS OF RECORD Elgin, Cannon & Associates, Vancouver, for appellant. Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by [1] Nadon J.A.: Before us is a motion brought by the appellant for an order, pursuant to rule 399 of the Federal Courts Rules,SOR/98-106, setting aside this Court’s judgment of April 29, 2016 (2016 FCA 134, [2017] 1 F.C.R. 56) which dismissed his appeal of adecision of the Federal Court (2015 FC 329, [2015] 4 F.C.R. 409) which had previously dismissed his application for judicial review of adecision of the Refugee Protection Division of the Immigration and Refugee Board of Canada. [2] The appellant also seeks an order reconvening the hearing of the appeal before a new panel or, in the alternative, an orderpursuant to rule 397 setting aside that part of our judgment which granted costs to the respondent. [3] For the reasons that follow, I conclude that the motion should only be allowed in respect of the granting of costs to therespondent. [4] I begin by reproducing rules 397 and 399 upon which the appellant relies in making this motion.

Motion to reconsider 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 noticeof 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. Mistakes

(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. … 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. Effect of order

(3) Unless the Court orders otherwise, the setting aside or variance of an order under subsection (1) or (2) does not affect the validity orcharacter of anything done or not done before the order was set aside or varied. [Emphasis added.] [5] We heard this appeal in Vancouver on April 19, 2016 and, at the end of the hearing, we reserved our judgment. [6] On April 28, 2016, counsel for the appellant wrote to the Court requesting the opportunity of making representations with respectto this Court’s decision in Bermudez v.

Canada (Citizenship and Immigration), 2016 FCA 131, [2017] 1 F.C.R. 128 (Bermudez) renderedon April 27, 2016. [7] On April 29, 2016, we signed a judgment and reasons for judgment which dismissed the appellant’s appeal with costs.Accordingly, on that day, the judgment and the reasons were sent to the Registry of the Court for filing and communication to theparties. I should point out that when we signed the judgment and reasons, counsel for the appellant’s letter of April 28, 2016 had not yetbeen brought to our attention by the Registry.

I should also point out that at that time we were not aware of the Court’s decision inBermudez. [8] On May 2, 2016, after the letter of April 28, 2016 had been brought to our attention, Rennie J.A. issued a direction to the partiespursuant to which they were asked to provide submissions regarding Bermudez within certain delays namely May 4, 2016 for theappellant and May 6, 2016 for the respondent.

Prior to the making of his direction, Rennie J.A. had been advised by the Registry that thejudgment had not yet issued. [9] Following the issuance of his May 2, 2016 direction, Rennie J.A. was informed by the Registry that contrary to the informationthat he had previously received, the judgment had been transmitted to the parties on April 29, 2016 and that the reasons had beentransmitted in part.

As a result, Rennie J.A. issued a further direction on May 9, 2016 advising the parties that because judgment hadbeen issued on Friday, April 29, 2016, the Court would not entertain further submissions from the parties. [10] First, the appellant says that the discovery of Bermudez, which this Court rendered on April 27, 2016 and which he brought to theCourt’s attention on April 28, 2016, constitutes “a matter that arose or was discovered subsequent to the making of the order” (paragraph399(2)(a)).

Hence, the appellant argues that it is open to this Court to set aside or vary the judgment of April 29, 2016. [11] Second, the appellant says, in the alternative, that pursuant to subsection 397(2), this Court should reconsider the order of costsmade against him. [12] I will deal first with the appellant’s submission that pursuant to paragraph 399(2)(a), we should set aside or vary our judgment ofApril 29, 2016. Paragraph 399(2)(

a) is an exception to the principle that decisions rendered by a court are final. In Collins v. Canada,2011 FCA 171, [2011] 6 C.T.C. 139, Mainville J.A., writing for the Court, made this point as follows at paragraph 12 of his reasons. Hemade it clear that paragraph 399(2)(

a) could not be used. … as a vehicle for revisiting judgments every time a litigant is unsatisfied with a judgment. The general principle is that judicialdecisions are final, and consequently the setting aside of such a decision under paragraph 399(2)(

a) of the Rules must be based onexceptionally serious and compelling grounds. This is necessary to ensure certainty in the judicial process as well as to preserve theintegrity of that process. [13] The question is then whether the discovery of Bermudez by counsel for the appellant and his communication of that decision tothis panel constitutes a matter that arose or was discovered subsequent to the making of the April 29, 2016 judgment, thus opening thedoor to the setting aside or variance of the judgment. In my view, it does not.

Again, I wish to make it clear that this panel only becameaware of Bermudez when it received counsel for the appellant’s letter of April 28, 2016, i.e. after the judgment of April 29, 2016 wassigned and sent to the Registry. [14] In making his submissions that the discovery of Bermudez constitutes “a matter” within the meaning of paragraph 399(2)(a),counsel relies on the decision of Mr. Justice Blais (as he then was) in Velupillai v. Canada (Minister of Citizenship and Immigration)(2000), 188 F.T.R. 314, (F.C.T.D.) (Velupillai). In particular, he refers to paragraphs 9 to 11 and 13 of Mr.

JusticeBlais’ decision where he says: When I signed the decision on June 15, 2000, I was not yet aware of the decision rendered in Haghighi by the Federal Court of Appeal,three days before. Given the number of decisions rendered by the Trial Division and by the Appeal Division, it takes a few days before being aware ofthese judgments and unfortunately, I read that decision after my decision of June 15, 2000 was rendered.

I am convinced that the applicant is right when he argues that the Federal Court of Appeal’s decision in Haghighi could have had animpact on my decision on the leave application. … I should also mention that this is an unusual situation and I have no hesitation to decide that Rule 399(2)(

b) applies in the circumstancesand the Court of Appeal’s decision in Haghighi is a matter that was discovered subsequent to the making of the order. [15] With respect, it is my view that Mr. Justice Blais was wrong in concluding as he did in Velupillai. In Ayangma v. Canada, 2003FCA 382, 313 N.R. 312 (Ayangma), there was a motion before our Court brought by the applicant for an order setting aside a previousorder of the Court made on March 20, 2003 which had dismissed his appeal. The basis of the applicant’s motion was that he had

discovered jurisprudence which, in his view, was determinative of his appeal. [16] After setting out subsection 399(2) and enunciating the criteria which had to be satisfied before the Court would intervene,Pelletier J.A., writing for the Court, made the following remarks at paragraph 4 of his reasons: We are not persuaded that the “matter” referred to in Rule 399 (“faits nouveaux” in the French version of the text) refers to jurisprudence.In Metro Can Construction Ltd. v. Canada, 2001 FCA 227 , [2001] F.C.J.

No. 1075 (F.C.A.), this Court decided thatsubsequent jurisprudence of our Court or of a higher Court does not constitute a “matter” that arose subsequently to the making of theorder, within the meaning of Rule 399(2). Notwithstanding the decision of the Federal Court―Trial Division (as it then was) in Jhajj v.Canada (Minister of Employment and Immigration), (FC), [1995] 2 F.C. 369, it follows from this that jurisprudenceexisting at the time of the order cannot be a matter that arose subsequent to the decision.

To hold otherwise would deprive all judgmentsof finality and would invite litigants to research their case after judgment was rendered. [Emphasis added.] [17] In my view, Ayangma stands for the proposition that jurisprudence, whether existing prior to or after the decision at issue, doesnot constitute a “matter” within the meaning of paragraph 399(2)(a). [18] As a result, I am of the view that the appellant cannot succeed on his request that the judgment of April 29, 2016 be set aside orthat the hearing of the appeal be reconvened before a new panel. [19] I now turn to the appellant’s alternative argument that the judgment be varied pursuant to rule 397.

In making his submission thatthe order of costs made against him be set aside, the appellant relies on rule 22 of the Federal Courts Citizenship, Immigration andRefugee Protection Rules, SOR/93-22 which provides as follows: Costs 22 No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or anappeal under these Rules unless the Court, for special reasons, so orders. [20] In my view, the appellant is correct in making his submission on costs. We made no finding that there were special reasons togrant costs against the appellant.

We simply overlooked rule 22 and consequently, it is open to us pursuant to subsection 397(2) toreconsider that part of our judgment. Hence, the judgment of April 29, 2016 shall be varied in regard to the issue of costs. [21] For these reasons, the appellant’s motion will be allowed in part. Consequently, the judgment of April 29, 2016 shall be varied toread as follows: “The appeal is dismissed and the certified question is answered in the affirmative”. Rennie J.A.: I agree. Gleason J.A.: I agree.