NOE GAMA SANCHEZ Appellant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2014 FCA 19

Date: 20140128 Docket: A-315-13 Citation: 2014 FCA 19 Present: STRATAS J.A. BETWEEN: NOE GAMA SANCHEZ Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on January 28, 2014. REASONS FOR ORDER BY: STRATAS J.A. Date: 20140128 Docket: A-315-13 Citation: 2014 FCA 19 Present: STRATAS J.A.

BETWEEN: NOE GAMA SANCHEZ Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER STRATAS J.A. [ 1 ] The appellant seeks an order staying this appeal until the Supreme Court has rendered judgment in Hernandez Febles v. Canada (Minister of Citizenship and Immigration) (SCC No. 35215).

[2] The Supreme Court will hear oral argument in Febles on March 25, 2014. Febles is on appeal from this Court: 2012 FCA324. [3] The appellant submits, correctly, that in the decision under appeal (2013 FC 913), the Federal Court interpreted and appliedthis Court’s decision in Febles. On appeal, this Court will follow Febles unless the appellant can show that Febles is “manifestly wrong”in accordance with Miller v. Canada (Attorney General), 2002 FCA 370.

That is a high standard to meet. [4] In light of that, the appellant submits that this Court should stay this appeal until the Supreme Court releases its decision inFebles. The appellant warns that if this Court dismisses this appeal relying upon its decision in Febles, soon afterward the Supreme Courtmight reverse Febles. In those circumstances, the appellant would be prejudiced. [5] The respondent points to the potentially lengthy delay that might result if the appeal is stayed.

He adds that the publicinterest lies strongly in favour of the prompt determination of immigration proceedings, citing sections 72-74 of the Immigration andRefugee Protection Act, S.C. 2001, c. 27. [6] With laudable candour, the appellant concedes that if this Court stays the appeal, there will be delay, indeed perhapssignificant delay.

The appellant concedes that the Supreme Court might take several months after March 2014 to consider its decision.But nevertheless he urges that this Court stay the appeal because of the “strong nexus” between his appeal in this Court and Febles. [7] The appellant has correctly identified the controlling authority in this motion: this Court’s decision in MylanPharmaceuticals ULC v. AstraZeneca Canada Inc., 2011 FCA 312 at paragraphs 5-14. [8] In Mylan, the Court observed that the test to be applied in this motion is whether it is in the interests of justice to stay theappeal.

The rather demanding three-fold test in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1S.C.R. 311 does not apply, as this Court is not being asked to stay another body’s order or to suspend the operation of a legislativeprovision. [9] The facts in Mylan, supra are similar to those here – a pending appeal in the Supreme Court that might affect a pendingappeal in this Court. [10] The Court in Mylan refused the stay. It noted that the Supreme Court often takes more than six months to render a decisionand there are instances where it has taken much longer.

Weighing the evidence before it, and noting the possibility of a very long delay,the stay was refused in Mylan. [11] As in Mylan, I observe that granting the stay in this case might result in a very long delay, a delay that would prejudice thepublic interest in the prompt determination of immigration proceedings.

As the respondent notes, this is underscored by sections 72-74 ofthe Act. [12] Also as in Mylan, I note that the Supreme Court’s power to remand matters back to this Court substantially mitigates oreliminates the potential prejudice to the appellant: see subsection 43(1.1) of the Supreme Court Act, R.S.C. 1985, c. S-26 and seediscussion of this power in Mylan at paragraph 24.

On a motion under subsection 43(1.1), the Supreme Court has the power to “orderany further proceedings that would be just in the circumstances.” One such proceeding is a remand of the matter back to this Court toconsider the application of the Supreme Court’s decision in Febles to the appellant’s case. [13] If this Court has dismissed the appeal but the Supreme Court has not yet rendered its decision in Febles, the appellant can takethe precautionary step of filing a motion with the Supreme Court seeking an order under subsection 43(1.1) of the Supreme Court Act.This would keep the appellant in the litigation stream, allowing him potentially to take advantage of any change in the law wrought bythe Supreme Court in Febles: on this, see Yeager v.

Day, 2013 FCA 258. [14] Accordingly, in my view, the appellant has reasonable means available to protect himself if this Court dismisses his appealand the Supreme Court later reverses this Court’s decision in Febles.

[ 15 ] The appellant has not identified any other prejudice he will suffer if this appeal goes forward. [ 16 ] Accordingly, based on the record before the Court and for the foregoing reasons, I find that the interests of justice are against staying this appeal. Despite the appellant’s able submissions, the motion will be dismissed. "David Stratas" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-315-13 STYLE OF CAUSE: NOE GAMA SANCHEZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: STRATAS J.A.

DATED: January 28, 2014 WRITTEN REPRESENTATIONS BY : Warren Puddicombe For The Appellant Keith Reimer Caroline Christiaens For The Respondent SOLICITORS OF RECORD :

Elgin, Cannon & Associates Vancouver, British Columbia For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent