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Injunctions and Specific Statutory Remedies. Lukács v. Canada (Citizenship and Immigration)
In Lukács v. Canada (Citizenship and Immigration) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of an IRPA s.87 ['Application for non-disclosure — judicial review and appeal'] statutory order made at the Federal Court in the context of a JR challenging the entry into Canada of people travelling from Hungary. The order was with respect to 'confidential information' that was "inadvertently disclosed", and it's effect was to "enjoin() Dr. Gabor Lukács and others, from retaining, disclosing or disseminating certain confidential information".
In these quotes the court considers the relationship between a statutory court order and a mandatory injunction, considering several SCC cases:[12] Late the next day, February 6, 2021, Mr. Perryman also emailed the Registry, to the attention of the case management judge, pointing out that in Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 223, [2012] 2 F.C.R. 243 [Sellathurai], this Court held that “the Federal Court does not have jurisdiction to resolve an inadvertent disclosure of purportedly sensitive information by way of motion under s. 87 of the [Act]”. Mr. Perryman went on to point out that, in that case, this Court explained that the proper procedure to be followed is for the Minister to file a notice of application seeking injunctive relief pursuant to section 44 of the Federal Courts Act, R.S.C. 1985, c. F-7: Appeal Book at p. 114.
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[39] Dr. Lukács argues that the Federal Court did not have the jurisdiction to make any order at all because it did not have before it an originating document seeking relief under section 44 of the Federal Courts Act. Dr. Lukács relies upon two paragraphs of this Court’s decision in Sellathurai in support of his argument:[39] Because the Federal Court’s jurisdiction was not based directly or indirectly upon section 87 of the Act, it possessed jurisdiction whether or not any related application for judicial review happened to be pending before the Federal Court. Irrespective of whether related proceedings were already in existence, in my view the proper procedure to be followed was that followed by the applicant in Liberty Net. What is now known as a notice of application should have been filed seeking injunctive relief, and the application should have been supported by appropriate affidavit evidence.
[40] In the present case, the Minister moved by way of notice of motion filed within the pending application for judicial review of the decision of the Immigration Division. In my view, this was not fatal to the present application. The notice of motion fully disclosed the grounds relied upon by the Minister and referred to section 44 of the Federal Courts Act. The motion was supported by appropriate affidavit evidence. The failure to comply with the Federal Courts Rules does not render a proceeding, or a step in the proceeding, void (Rule 56). [40] Dr. Lukács’ position is that while Sellathurai held that injunctive relief for inadvertent disclosure should be sought by way of notice of application, the Supreme Court’s decision in R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196 [CBC] reinforced that requirement: injunctive relief must be sought by means of an originating document. After CBC, the absence of an originating document pleading a cause of action is fatal: Dr. Lukács’ memorandum of fact and law at para. 67.
[41] CBC was a case in which the Crown attempted to graft injunctive relief upon a motion seeking a finding of criminal contempt against the CBC for refusing to remove from its website information identifying the victim of a crime, information that was posted before the publication ban was issued. In its analysis, the Supreme Court focused on the relationship between an injunction and a cause of action. Using the Alberta Rules of Court, Alta. Reg. 124/2010 as an example, it noted the requirement that an originating document contain both “‘[a] claim and the basis for it’ and ‘the remedy sought’” and concluded that an injunction “is generally a remedy ancillary to a cause of action”: CBC at para. 24. The Supreme Court went on to say “[a]n injunction is not a cause of action, in the sense of containing its own authorizing force. It is, I repeat, a remedy”: CBC at para. 25.
[42] Dr. Lukács relies upon CBC to drive home the necessity of proceeding by way of notice of application when seeking injunctive relief pursuant to section 44 of the Federal Courts Act, whether or not a motion for relief under section 87 is pending, as set out in Sellathurai. In order to deal with this argument, it is necessary to understand the unusual facts of that case.
[43] Mr. Sellathurai was the subject of an admissibility hearing on the basis that there were reasonable grounds to believe that he was a member of the Liberation Tigers of Tamil Eelam (the LTTE) which was alleged to be a terrorist organization. The Immigration Division of the Immigration and Refugee Board (the Immigration Division) found that Mr. Sellathurai was a member of the LTTE and adjourned to a later date the determination as to whether the LTTE was a terrorist organization. Meanwhile, Mr. Sellathurai applied for a ministerial exemption under subsection 34(2) of the Act [since repealed, 2013, c.16, s.13], arguing that his presence in Canada would not be detrimental to the national interest. The Immigration Division adjourned its hearing on the status of the LTTE a number of times at Mr. Sellathurai’s request while the request for a ministerial exemption was pending. Eventually, however, it refused to grant further adjournments. Mr. Sellathurai made an application for judicial review of the decision refusing a further adjournment.
[44] In the course of processing Mr. Sellathurai’s application for a ministerial exemption, a disclosure package was sent to Mr. Sellathurai and his counsel which inadvertently contained three documents for which national security privilege was subsequently claimed. The documents in issue were on Canadian Security Intelligence Service letterhead and were stamped “SECRET”.
[45] After communicating with counsel to ensure that the documents were securely stored, the Minister made a motion for injunctive relief compelling the return of the documents. At paragraph 27 of its reasons in Sellathurai (2010 FC 1082), the Federal Court found that the application for judicial review and the motion for injunctive relief were related in that the documents disclosed in the course of the ministerial review “would have relevance to the judicial review application”. It also found that the claim of national security privilege was made out and granted the injunctive relief.
[46] On appeal, this Court found that the application for judicial review and the motion for the return of the documents were unrelated because the issue of the ministerial exemption was not connected to the refusal to grant an adjournment and, in any event, there was no evidence that the documents were before the Immigration Division when it made its decision. This Court found that neither section 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5, nor section 87 of the Act gave the Court jurisdiction to recover the inadvertently disclosed documents. In particular, the Court (at paragraph 24) found that section 87 authorized the Court to prevent disclosure but it did not apply “as a mechanism” to retrieve information after disclosure.
[47] This Court then considered the Supreme Court’s decision in Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, and found that the combination of the Court’s plenary jurisdiction over immigration matters and section 44 of the Federal Courts Act, gave the Court jurisdiction to issue the injunctive relief to recover the documents. It also found that the proper procedure was by way of an application for judicial review seeking relief under section 44 of the Federal Courts Act.
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