DOUGLAS MICHAEL KEARNEY Appellant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2015 FCA 144

Date: 20150615 Docket: A-117-14 Citation: 2015 FCA 144 CORAM: RYER J.A. WEBB J.A. RENNIE J.A. BETWEEN: DOUGLAS MICHAEL KEARNEY Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Heard at Toronto, Ontario, on June 15, 2015. Judgment delivered from the Bench at Toronto, Ontario, on June 15, 2015. REASONS FOR JUDGMENT OF THE COURT BY: RYER J.A. Date: 20150615 Docket: A-117-14 Citation: 2015 FCA 144 CORAM: RYER J.A. WEBB J.A. RENNIE J.A.

BETWEEN: DOUGLAS MICHAEL KEARNEY Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on June 15, 2015). RYER J.A. [ 1 ] We are all of the view that the appeals in files A-117-14, a decision of Boivin J. (as he then was) and A-320-14, a decision of Gleason J. (collectively Boivin J. and Gleason J. are referred to as the “Federal Court Judges”) are moot.

The applications that were before the Federal Court Judges in these appeals were for orders of mandamus to compel the Minister of Citizenship and Immigration to process applications for permanent residence under the federal Immigrant Investor Program (“IIP”) in the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (“ IRPA ”) that had not been processed as fast as the applicants desired. [ 2 ] The decision under appeal in A-320-14 was rendered on June 23, 2014. Four days earlier,

section 87.5 of the IRPA came into force. Its effect was to terminate all of the applications of the appellants in these appeals. [ 3 ] Before this Court, the Crown asserts that the effect of

section 87.5 of the IRPA is to render all of the appeals moot on the

basis that all of the applications have been terminated. [4] The leading case on mootness is Borowski v Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342. Atpage 353 Justice Sopinka states: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties.

If the decision of the court will have no practical effect on such rights,the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commencedbut at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding,events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties,the case is said to be moot.

The general policy or practice is enforced in moot cases unless the court exercises its discretion to departfrom its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. [5] In the present circumstances, the live controversy was whether the Minister could be compelled by mandamus to process theapplications that were outstanding at the time that the mandamus applications were made to, and heard by, the Federal Court Judges. [6] The enactment of

section 87.5 terminated all of the applications under the IIP. As a result, the issue of whether the Ministercould be forced to process these applications was no longer a live controversy. [7] The constitutional validity of

section 87.5 of the IRPA was not part of the controversy before either of the Federal CourtJudges. Neither was the question of whether an order of mandamus could be granted, on some basis, to compel the Minister to processapplications under the IIP that had been terminated. We are not inclined to entertain these issues as a matter of first instance on appeal. [8] Having concluded that the appeals are moot, we are not inclined to exercise our discretion to hear them, as we believe thatdoing so would have no practical effect. [9] For the foregoing reasons, we would dismiss the appeals without costs.

A copy of these reasons should be placed in the filesin both A-320-14 and A-117-14. "C. Michael Ryer" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE BOIVIN OF THE FEDERAL COURT OFCANADA DATED JANUARY 28, 2014, DOCKET NO. IMM-11890-12 DOCKET: A-117-14 STYLE OF CAUSE: DOUGLAS MICHAEL KEARNEY v. THEMINISTER OF CITIZENSHIP ANDIMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: June 15, 2015 REASONS FOR JUDGMENT OF THE COURT BY: RYER J.A. WEBB J.A. RENNIE J.A. DELIVERED FROM THE BENCH BY: RYER J.A. APPEARANCES:

Rocco Galati For The Appellant Lorne McClenaghan Daniel Engel For The Respondent SOLICITORS OF RECORD : Rocco Galati Barrister and Solicitor Toronto, Ontario For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent