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Federal Court - Appeals - Interlocutory Orders. Michaels of Canada, ULC v. Canada (Attorney General)
In Michaels of Canada, ULC v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the doctrine of prematurity, here in the context of a federal JR of customs matters:[6] We are of the view that the motion judge did not err in finding that Michaels’ application is premature due to its failure to avail itself of the multiple levels of administrative review provided for in the Act. We also are not persuaded that the administrative decision-maker—i.e., the President of the CBSA or the CITT—cannot address and determine the issues raised by Michaels. More particularly, we remain unconvinced that Jockey Canada Company v. President of the CBSA, 2012 CanLII 85177 (AP-2011-008) (CITT) and other cases referred to by the appellant in oral argument stand for the proposition that the CITT has definitively foreclosed consideration of issues akin to the ones raised by Michaels because they would allegedly fall outside of the scope of the statutory appeals. Further, in this case, there are no exceptional circumstances that meet the high threshold for bypassing the administrative process intended by Parliament (C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332 at paras 4, 28–29, 33, 39–40, 45 (C.B. Powell)).
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[8] The failure to exhaust an adequate alternative remedy is a fatal flaw to an application for judicial review (C.B. Powell at paras 30–33; Skechers USA Canada Inc. v. Canada (Border Services Agency), 2023 FC 1455 at paras 26–28). Given our conclusion on prematurity, we consider it unnecessary to comment on the other issues raised. . El Ad Ontario Trust v. Canada
In El Ad Ontario Trust v. Canada (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a Crown amendment to appeal pleadings, here within income tax litigation:[2] The appellant takes no issue with the amendment addressing a new argument, expressly permitted by subsection 152(9) of the Income Tax Act. However, the appellant submits the Tax Court erred in law by interpreting subsection 152(9) as permitting the Crown “to automatically amend the Reply to withdraw the [admissions]” (appellant’s memorandum of fact and law at para. 64, emphasis in original). The appellant submits that the Tax Court therefore constrained its analysis of the proper test for withdrawal of admissions by failing to consider the interests of justice.
[3] We disagree with this characterization of the Tax Court’s decision.
[4] This Court has consistently said that an amendment to a pleading should be allowed where it assists in determining the real questions in controversy between the parties, unless doing so does not serve the interests of justice or results in an injustice to the other party not compensable by costs: Canada v. Pomeroy Acquireco Ltd., 2021 FCA 187 at para. 4, and cases there cited. The Tax Court expressly referred to this jurisprudence.
[5] It found the new argument was clearly consequential on the facts alleged in the appellant’s notice of appeal. It determined the admissions were inconsistent with the new argument and withdrawing them would assist the Tax Court in determining the real question in controversy between the parties, including the merits of the new argument. It noted admissions are not binding on the Tax Court, citing Hammill v. Canada, 2005 FCA 252.
[6] The Tax Court found no prejudice to the appellant from the timing of the motion observing that the Crown gave notice of its intention to seek amendments before discovery. The appellant itself had questioned inconsistencies between the admissions and other material facts pled by the Crown leading to discussions between the parties. The Tax Court found no injustice to the appellant that could not be compensated by costs.
[7] These factors informed the Tax Court’s decision to permit the withdrawal of admissions and can only be understood as reflecting a determination that the interests of justice favoured allowing the withdrawal.
[8] The decision to permit amendment of a pleading, including by withdrawing admissions, falls entirely within the discretion of the Tax Court. A judge’s discretionary decision is subject to the standard of review described in Housen v. Nikolaisen, 2002 SCC 33: see Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79. Therefore, we will not interfere with the Tax Court’s exercise of discretion absent an extricable error of law or a palpable and overriding error on a question of fact or mixed fact and law.
[9] We see no error that warrants our intervention. Accordingly, we will dismiss the appeal with costs to the respondent. . Canada (Public Safety and Emergency Preparedness) v. Ewen
In Canada (Public Safety and Emergency Preparedness) v. Ewen (Fed CA, 2023) the Federal Court of Appeal considered an unusual appeal from interlocutory orders that granted an interim stay of an immigration removal in order to receive the written submissions on court-initiated Charter issues.
In these quotes, the court considers it's jurisdiction to hear an appeal of Federal Court interlocutory orders, here in an immigration appeal clontext:A. Does this Court have jurisdiction to hear this appeal of an interlocutory order of the Federal Court?
[15] It is beyond dispute that interlocutory decisions in immigration matters are not ordinarily subject to appeals pursuant to the preclusive clause contained in paragraph 72(2)(e) of IRPA, which states that “no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment”. Furthermore, an appeal from a final judgment is only available when the judge rendering it certifies a serious question of general importance (see paragraph 74(d) of IRPA).
[16] Yet, paragraph 27(1)(c) of the Federal Courts Act, R.S.C. 1985, c. F-7 authorizes an appeal from an interlocutory judgment of the Federal Court. On the basis of that provision, a body of jurisprudence has developed, empowering this Court in exceptional circumstances to entertain an appeal of an interlocutory decision, or of a final decision where no question has been certified, despite the statutory bars found in the IRPA.
[17] In a long line of cases going back to at least the decision of this Court in Subhaschandran v. Canada (Solicitor General), 2005 FCA 27 at paras. 13, 17, it has been recognized that appellate review may be available when a case raises “very fundamental matters” or “truly exceptional matters” that “strike right at the rule of law”: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144 at paras. 19-21. There is an additional exception to the rule that no appeal lies from interlocutory orders. Where the alleged error has been made in the context of a “separate, divisible judicial act”, and involves the exercise of a power that is not found in the IRPA, appellate review is not governed by that Act: Harkat v. Canada (Attorney General), 2021 FCA 209 at para. 25; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, 1997 CanLII 322 (S.C.C.) at para. 66.
[18] In my view, the case at bar exemplifies this second exception. The Motion Judge’s decision to order an interim stay to inquire into whether the Government of Canada’s use of gender-neutral pronouns in its submissions infringed the respondent’s Charter rights has no basis in the IRPA’s provisions. The preclusive clauses found in paragraphs 72(2)(e) and 74(d) of IRPA therefore cannot find application in the very particular and exceptional circumstances of this case.
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