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Constitution (Non-Charter) - Federal Courts [s.101]. Li v. Canada (Citizenship and Immigration)
In Li v. Canada (Citizenship and Immigration) (Fed CA, 2024) the Federal Court of Appeal (Stratas JA) dismissed an appeal, here from a court 'direction' (not from an 'order') that "the appellant’s motion for a stay of removal was premature because travel documents for the appellant were not ready". 'Directions' can't be appealed, thus raising a lack of jurisdiction argument and respondent countered with a Rule 74 motion to 'remove document from the court file', which - in conjunction with the Federal Court's 'plenary' authority under Constitution Act, 1867 s.101 - serves in some Federal Court contexts as a de facto quashing of an appeal:[1] The appellant appeals from a direction of the Federal Court. The Federal Court directed that the appellant’s motion for a stay of removal was premature because travel documents for the appellant were not ready. As a result, the Federal Court refused to schedule the motion.
[2] The respondents now move for an order terminating this appeal. Specifically, the respondents invoke Rule 74 of the Federal Courts Rules, SOR/98-106. That Rule provides that the Court may order that a document, here the notice of appeal, be removed from a court file if, among other things, the filing of the document is contrary to an Act of Parliament.
[3] Alongside Rule 74 are the Court’s plenary powers — the implied and necessarily incidental but very real powers it possesses as a Court under section 101 of the Constitution Act, 1867 (UK), 20 & 31 Vict, c. 3, s. 101, reprinted in R.S.C. 1985, Appendix II, No. 5, a Court of equal status and standing with others in this country.
[4] In the case of notices of appeal, Rule 74 and the Court’s plenary powers have empowered the Court to remove a notice of appeal where the Court lacks jurisdiction to hear an appeal or the appeal is doomed to fail from the outset: Dugré v. Canada (Attorney General), 2021 FCA 8 and the cases cited at paras. 19-24; Virgo v. Canada (Attorney General), 2019 FCA 167; Coote v. Canada (Human Rights Commission), 2021 FCA 150; Lee v. Canada (Correctional Service), 2017 FCA 228. This Court has exercised this power in the immigration context: see Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144, [2018] 2 F.C.R 344, Wong v. Canada (Citizenship and Immigration), 2016 FCA 229, 487 N.R. 294 and Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 (all attempts to appeal a Federal Court order in the face of the bars against appeals in the Immigration and Refugee Protection Act, S.C. 2001, c. 27).
[5] Here, this Court lacks jurisdiction to hear this appeal and so under Rule 74 and the plenary powers of the Court, the notice of appeal must be removed from the Court file and the Court file closed.
[6] Before the Court is an appeal from a direction of the Federal Court. The general rule is that such directions cannot be appealed to this Court: Tajdin v. His Highness Prince Karim Aga Khan, 2012 FCA 238; Simon v. Canada (Attorney General), 2019 FCA 28; Froom v. Canada, 2003 FCA 141, 312 N.R. 282.
[7] This general rule admits of at least one exception. If a direction affects the rights of a party in a substantial way, for example in the sense of foreclosing substantive arguments for all time or imposing procedures that are fundamentally unfair and prejudicial, the party may ask the Federal Court to embody its direction in a formal order so that it can be appealed. A good example is seen in Subhaschandrun v. Canada (Solicitor General), 2005 FCA 27, 249 D.L.R. (4th) 269, where the Federal Court refused to deal with a request for a stay of a removal order, adjourning the matter to a time when the request would be moot.
[8] The appellant did not pursue that recourse in the Federal Court. Nor could it have done so. The direction here is only about the timing of a stay motion. I am not persuaded that the timing of the stay motion affects the appellant’s substantive arguments or rights for all time or works any fundamental unfairness or prejudice to the appellant.
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