Shukla v. Canada (Minister of Citizenship and
Immigration)
Between
Shrinivas Shukla, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1563
2012 FC 1461
Docket IMM-475-12
Federal Court
Toronto, Ontario
Russell J.
Heard: November 6, 2012.
Judgment: December 10, 2012.
Docket IMM-475-12
Federal Court
Toronto, Ontario
Russell J.
Heard: November 6, 2012.
Judgment: December 10, 2012.
(48 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
RUSSELL J.:--
INTRODUCTION
1 This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c. 27 (Act) for
judicial review pursuant to subsection 18.1 of the Federal
Courts Act, RSC 1985, c F-7. The Applicant is
requesting an order of mandamus
with respect to his application for permanent residence in Canada as a member
of the Federal Skilled Worker class.
BACKGROUND
2 The
Applicant in a citizen of India. He first submitted an application for
Permanent Residence as a Federal Skilled Worker at the High Commission of
Canada in New Delhi, India, on or about 25 February 2004.
3 On
17 July 2008, the Applicant received a letter from the High Commission stating
that the law had changed, and offering him a refund on his application fees.
The Applicant declined the refund, and opted to submit new forms to the High
Commission. The Applicant has since made several inquires to the High
Commission about the status of his application, but has never received any
indication of when he could expect a decision.
4 The
Applicant has now brought this application for an order of mandamus, hoping to require the Minister to
make a decision about his application for permanent residence.
STATUTORY PROVISIONS
5 The
following provisions of the Act are applicable in these proceedings:
· Application made before February 27, 2008
· 87.4 (1) An application by a foreign national for a permanent
resident visa as a member of the prescribed class of federal skilled workers
that was made before February 27, 2008 is terminated if, before March 29, 2012,
it has not been established by an officer, in accordance with the regulations,
whether the applicant meets the selection criteria and other requirements
applicable to that class.
Subsection (1) does not
apply to an application in respect of which a superior court has made a final
determination unless the determination is made on or after March 29,
2012.
The fact that an
application is terminated under subsection (1) does not constitute a decision
not to issue a permanent resident visa.
[...]
* * *
· Demandes antérieures au 27 février 2008
· 87.4 (1) Il est mis fin à toute demande de visa de résident
permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire
des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n'a pas
statué, conformément aux règlements, quant à la conformité de la demande aux
critères de sélection et autres exigences applicables à cette catégorie.
Le paragraphe (1) ne
s'applique pas aux demandes à l'égard desquelles une cour supérieure a rendu
une décision finale, sauf dans les cas où celle-ci a été rendue le 29 mars 2012
ou après cette date.
Le fait qu'il a été mis
fin à une demande de visa de résident permanent en application du paragraphe
(1) ne constitue pas un refus de délivrer le visa.
[...]
ISSUES
6 The
Applicant raises the following issues in this application:
Whether this Court
should render an order of mandamus nunc pro tunc,
allowing the Applicant to avoid subsection 87.4 of the Act;
Whether the Court ought
to grant an order of mandamus
requiring the Respondent to make a decision in regards to the Applicant's
application for permanent residence.
ARGUMENTS
The Applicant
Nunc Pro Tunc
7 After
the Applicant filed for leave to pursue this application for judicial review,
paragraph 87.4(1) of the Act was ratified. This section terminated all
applications for permanent resident visas in the Federal Skilled Worker category
that were not decided by 29 March 2012. The effect of this section was to
terminate the Applicant's application.
8 The
Applicant points out that this is a novel legal issue presented by the
enactment of paragraph 87.4(1), and that it is of significant importance as it
affects a large number of individuals. In Liang v Canada
(Minister of Citizenship and Immigration), 2012 FC 758
[Liang], Justice Donald Rennie
had the following to say on point:
[59] Two questions were proposed for
certification:
[...]
Does the Federal Court
have the jurisdiction to backdate its Judgment and Reasons in order to
circumvent the effect of validly-enacted legislation?
· [...]
· [62] Question 2 was proposed in response to a request by the
applicants that the Court issue its decision nunc pro
tunc. The Court's authority to do so is not in doubt.
Here, however, no such order is warranted or being made. The proposed question
is thus academic. It is also vague and otherwise unacceptable for
certification, assuming as it does, an unproven intention to negate the effect
of an undefined legislative provision.
9 The
Applicant states that the undefined legislative provision Justice Rennie was
referring to is the Jobs, Growth and Long-Term
Prosperity Act, SC 2012, c 19. This legislation has
since been passed by the House of Commons and has received Royal Assent.
10 The
Applicant submits that this Court has within its powers the ability to render
an order nunc pro tunc, dating
the order prior to 29 March 2012. The application of this discretionary power
is usually limited to instances where a party would be prejudiced by issuing an
order on that date rather than a date previous (Trans-Pacific
Shipping Co. v Atlantic and Orient Shipping Corp. (BVI), 2005 FC 566 at paragraphs 21-26 [Trans-Pacific
Shipping Co.]).
11 The
Applicant filed his application prior to the legislation being proposed. He
could not have foreseen the legislation, or that he would be negatively
affected by it. An order rendered today would be moot, as the Applicant's
application has been terminated. The Applicant submits that this will prejudice
him. The Applicant requests that the Court render its decision nunc pro tunc prior to 29 March 2012, so as
to avoid inflicting that prejudice.
Mandamus
12 The
Applicant further submits that he has met all the conditions precedent for mandamus as were laid out by Justice Danièle
Tremblay-Lamer in Conille v Canada (Minister of
Citizenship and Immigration), [1999] 2 FC 33:
There is a public legal
duty to the applicant to act;
The duty must be owed
to the applicant;
There is a clear right
to the performance of that duty, in particular:
The applicant has
satisfied all conditions precedent giving rise to the duty;
There was a prior
demand for performance of the duty, a reasonable time to comply with the
demand, and a subsequent refusal which can be either expressed or implied, e.g.
unreasonable delay; and
There is no other
adequate remedy.
13 The
Applicant further submits that he has met all the requirements for a delay to
be considered unreasonable. These were laid out in Mohamed
v Canada (Minister of Citizenship and Immigration),
[2000] 195 FTR 137 (FCTD) [Mohamed] as being:
The delay has been
longer than the nature of the process required, prima facie;
The applicant and his
counsel are not responsible for the delay; and
The authority
responsible for the delay has not provided satisfactory justification.
14 In
Mohamed, a delay of four years
in processing an accepted Convention refugee's application for permanent
residence due to "security concerns" was held to be unreasonable. The
Applicant also points to the decision in Bhatnager v
Canada (Minister of Employment and Immigration), [1985]
2 FC 315 (FCTD) [Bhatnager],
where Justice Barry Strayer said at paragraph 4:
· The decision to be taken by a visa officer pursuant to section 6 of
the Regulations with respect to issuing an immigrant visa to a sponsored member
of the family class is an administrative one and the Court cannot direct what
that decision should be. But mandamus can issue to require that some decision be made. Normally this
would arise where there has been a specific refusal to make a decision, but it
may also happen where there has been a long delay in the making of a decision
without adequate explanation. I believe that to be the case here. The
respondents have in the evidence submitted on their behalf suggested a number
of general problems which they experience in processing these applications,
particularly in New Delhi but they have not provided any precise explanation
for the long delays in this case. While I would not presume to fix any uniform
length of time as being the limit of what is reasonable, I am satisfied on the
basis of the limited information which I have before me that a delay of 4 1/2
years from the time the renewed application was made is unreasonable and on its
face amounts to a failure to make a decision.
15 The
Applicant submits that the analysis in Bhatnager is applicable to his situation. Also, in Latrache
v Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 154 (FCTD) Justice François Lemieux found that an unexplained
four-and-a-half year delay in processing an application for permanent residence
justified an order of mandamus.
In Dee v Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1767 (FCTD) a
three-and-a-half year delay was deemed "prodigiously" long, and in Hanano v Canada (Minister of Citizenship and Immigration), 2004 FC 998 Justice Carolyn Layden-Stevenson said at paragraph 16
that "a four year delay is well within the range where delays have been
held to be unreasonable."
16 The
Applicant points out that one of the factors relevant to whether an order of mandamus ought to be granted is whether the
decision-making authority kept the applicant informed as to the status of his
application and the expected general timeframe for when a decision could be
expected (Papal v Canada (Minister of Citizenship and
Immigration), [2000] 3 FC 532 (FCTD)). The Applicant
submits that he has cooperated in all aspects of the process, and the
Respondent has provided him with no meaningful indication of the status of his
application and has provided no justification for the delay.
17 The
Applicant reminds the Court that he is not requesting the granting of
Ministerial relief; he simply asks that a decision be rendered in regards to
his application. Nearly eight years have passed since the Applicant initially
submitted his application, and nearly four years have passed since the
Applicant last submitted documents to the High Commission. The Applicant
submits that the delay in processing his application is unreasonable and that
an order of mandamus would be an
appropriate remedy in these circumstances.
The Respondent
Nunc Pro Tunc
18 The
Respondent asserts that, due to the invocation of subsection 87.4 of the Act,
the Applicant no longer has a pending application for permanent residence, and
thus there is no basis upon which his request for mandamus could succeed. The Respondent also asserts it would not be
appropriate for the Court to grant an order nunc pro
tunc in this case.
19 The
Applicant's application for permanent residence as a Federal Skilled Worker was
made before 27 February 2008 and no decision was rendered before 29 March 2012.
Thus, his application was caught by paragraph 87.4(1) of the Act, and was
terminated. The Applicant has stated no authority, principle, or reason why the
Court should exercise its power to issue an order nunc pro
tunc in this case.
20 The
Applicant refers to the decision in Liang, above, but admits this decision was made before subsection 87.4
came into force. Thus, at the time of the Court's decision in Liang the application at issue had not yet
been terminated. Further, the Court did not issue an order nunc pro tunc (Liang at paragraph 62).
21 The
Applicant also relies upon passages from Trans-Pacific
Shipping, above. However, this case does not support
the Applicant's position, as it does not relate to mandamus in regards to a
terminated application, but shows that the Court can ante-date orders in
exceptional cases, such as to prevent prejudice arising from an act of the
Court (actus curiae neminem gravabit). The Respondent points to Trans-Pacific
Shipping at paragraphs 24-26:
· As to the factors which govern the proper exercise of this
discretion, in Turner v. London and South Western
Railway (1874), L.R. 17 Eq. 561 (Eng. Ex. Ch.),
Vice-Chancellor Hall reviewed prior jurisprudence which was to the effect that
where a party to an action died, for example, after the conclusion of a trial
and while the Court was considering its judgment, the Court would allow
judgment to be entered after the party's death nunc pro
tunc, in order that the party not be prejudiced by the
delay arising from the action of the Court in reserving its judgment. The
object of the practice was to put the party in the same position as if judgment
had been given immediately following the trial and had not been delayed because
the Court took the matter under reserve.
· Subsequent English jurisprudence confirmed that this power to
antedate ought to be "used on good ground shewn" (Borthwick v. Elderslie Steamship Co. (No. 2),
[1905] 2 K.B. 516 (Eng. C.A.) at page 519) and that "there must be
something exceptional in the facts to justify the making of the order" (Belgian Grain and Produce Co. v. Cox and Co. (France) Ltd., [1919] W.N. 317 (Eng. C.A.).
· This jurisprudence has been adopted in Canada. See, for example, Crown Zellerbach, supra at page 284; Loyie Estate v. Erickson Estate (1994), 94
B.C.L.R. (2d) 33 (B.C. S.C.); and Monahan v. Nelson (2000), 76 B.C.L.R. (3d) 109 (C.A.). The Canadian jurisprudence
cited above, and the jurisprudence in turn reviewed in those decisions, is to
the effect that no one should be prejudiced by an act of the Court (Loyie at page 41 and Monahan at page 119 and following, and also at page 140). Therefore, for
example, judgments may be antedated in order to avoid injury to a litigant
arising from an act or delay by the Court. Put more classically, actus curiae neminem gravabit.
22 The
Supreme Court of Canada explained the principle of actus
curiae neminem gravabit in Canada
(Attorney General) v Hislop, 2007 SCC 10 at paragraph
77:
· ... Nevertheless, it is a long-standing principle of law that a
litigant should not be prejudiced by an act of the court (actus curiae neminem gravabit): Turner v. London and South Western Railway
(1874), L.R. 17 Eq. 561 (Eng. Ex. Ch.). Based on this principle, in cases where
a plaintiff has died after the conclusion of argument but before judgment was
entered, courts have entered judgment nunc pro tunc as of the date that argument concluded: see Gunn
v. Harper (1902), 3 O.L.R. 693 (Ont. C.A.); Hubert v. DeCamillis (1963), 41 D.L.R. (2d)
495 (B.C. S.C.); Monahan v. Nelson (2000), 186 D.L.R. (4th) 193, 2000 BCCA 297 (B.C. C.A.). We affirm
the correctness of this approach and conclude that the estate of any class
member who was alive on the date that argument concluded in the Ontario
Superior Court, and who otherwise met the requirements under the CPP, is
entitled to the benefit of this judgment.
23 However,
the Supreme Court of Canada also made clear that actus
curiae neminem gravabit does not apply to confer a
jurisdiction that has been taken away by statute. In Re
Trecothic Marsh, [1905] 37 S.C.R. 79, the Supreme Court
of Canada said at paragraph 3:
· I would also assent to the proposition that the maxim actus curiae neminem gravabit cannot be
applied so as to confer a jurisdiction that has been expressly taken away by
statute. Cumber v. Wane, 1 Sm.
L.C. (11 ed.) 338. I also agree that, where the time has expired, a court
cannot give itself jurisdiction by antedating its judgment and ordering it to
be entered nunc pro tunc. That
would clearly be overriding the statute and defeating the intention of the
law-giver. A court could not so indefinitely extend its jurisdiction in
opposition to the law.
24 The
Respondent submits that it would not be appropriate for the Court to issue an
order of mandamus nunc pro tunc
in this case.
Mandamus
25 The
Respondent also submits that, due to the enactment of subsection 87.4 of the
Act, it no longer owes the Applicant a public legal duty to act (Khalil v Canada (Secretary of State), [1999]
4 FC 661 (FCA) at paragraph 11). Because the Applicant no longer has a pending
application for permanent residency, he has failed to meet the conditions
precedent for an order of mandamus (Apotex Inc v Canada
(Attorney General), [1994] 1 FC 742 (FCA), aff'd [1994]
3 S.C.R. 1100). The Respondent therefore requests that this application for
judicial review be dismissed.
ANALYSIS
26 It
is common ground that the Applicant's application for permanent residence was
made before 27 February 2008.
27 It
is also common ground that it was not "before March 29, 2012...
established by an officer, in accordance with the regulations, whether the
Applicant meets the selection criteria, and other requirements applicable
to" the Federal Skilled Worker Class.
28 This
means that, in accordance with paragraph 87.4(1) of the Act, the Applicant's
application for permanent residence in Canada has been terminated by act of
Parliament. It also means that, under paragraph 87.4(5) of the Act the
Applicant has no right of recourse or indemnity against her Majesty in
connection with his terminated application.
29 Notwithstanding
these clear statutory provisions and their application to the facts of this
case, the Applicant is seeking an order of mandamus that a decision on his
application for permanent residence be rendered, and he is asking further that
the order be made effective nunc pro tunc prior to 29 March 2012 so as to avoid the effect of subsection 87.4
of the Act.
30 The
reality is that the Applicant is asking the Court to treat his application for
permanent residence as being extant, even though it has been terminated by
subsection 87.4 of the Act. In other words, he is asking the Court to reinstate
an application that has been terminated by act of Parliament.
31 The
Applicant does not attack the constitutional validity of subsection 87.4 of the
Act, and he does not say that the provision does not apply to his permanent
residence application. He simply says that subsection 87.4 should not apply to
him, and that the Court should exercise its power to circumvent a clear act of
Parliament through the use of a nunc pro tunc order. The reason offered is that his judicial review application
was commenced before subsection 87.4 of the Act came into force.
32 The
Applicant has attempted to draw analogies between his situation and the cases
of Liang and Trans-Pacific Shipping, above. It seems to me
that neither of these cases assists the Applicant. Liang was decided before subsection 87.4 came into force, so that the
application in that case had not been terminated. That being so, the Court
decided that a nunc pro tunc
order was not warranted in the circumstances.
33 Nor
does Trans-Pacific Shipping deal
with mandamus in the context of a terminated application. As that case makes
clear, the purpose of a nunc pro tunc order is to ensure that "no one should be prejudiced by an act
of the Court..., for example, judgments may be antedated in order to avoid
injury to a litigant arising from an act or delay by the Court."
34 In
my view, the present case has nothing to do with an act or delay of the Court.
The Applicant is seeking to avoid the clear intent of an act of Parliament in a
situation where the Court has no jurisdiction to countermand Parliament's clear
intent. See Trecothic Marsh (Re),
above.
35 In
addition, the Applicant is seeking a remedy from this court which the IRPA says
can have no force and effect. See Liang, above, at paragraph 21. Paragraph 87.4(2) of the Act says that
Subsection (1) does not
apply to an application in respect of which a superior court has made a final
determination unless the determination is made on or after March 29,
2012.
* * *
Le paragraphe (1) ne
s'applique pas aux demandes à l'égard desquelles une cour supérieure a rendu
une décision finale, sauf dans les cas où celle-ci a été rendue le 29 mars 2012
ou après cette date.
In other words, if I were now to make a final determination
on the Applicant's judicial review application nunc pro
tunc as the Applicant suggests, paragraph 87.4(2) says
that paragraph 87.4(1) will still apply to terminate the application.
36 As
the Applicant no longer has an extant application for permanent residence, it
seems to me that he cannot satisfy the criteria for an order of mandamus. There
is no longer a public legal duty to act that is owed to the Applicant. See Khalil v Canada (Secretary of State), [1999]
4 FC 661 (FCA) at paragraph 11.
37 What
authority we have on point makes it clear that nunc pro
tunc is not available in this kind of situation. In Trecothic March, above, the Supreme Court of
Canada had the following to say on point:
· I would also assent to the proposition that the maxim actus curiae neminem gravabit cannot be
applied so as to confer a jurisdiction that has been expressly taken away by
statute. Cumber v. Wane, 1 Sm.
L.C. (11 ed.) 338. I also agree that, where the time has expired, a court
cannot give itself jurisdiction by antedating its judgment and ordering it to
be entered nunc pro tunc. That
would clearly be overriding the statute and defeating the intention of the
law-giver. A court could not so indefinitely extend its jurisdiction in
opposition to the law.
38 The
Applicant does not say that this Supreme Court of Canada case from 1905 has
been overruled; he says, however, that these words are obiter and I am not
bound by them. He urges the Court to follow the decision of the Ontario
Superior Court of Justice van Rensburg in Silver v IMAX
Corp., 2012 ONSC 4881 (CanLII).
39 Silver, however, dealt with the operation of nunc pro tunc in the context of a limitation
period:
· 43 The authority to make an order nunc pro
tunc is part of the court's inherent jurisdiction, and
is recognized in the Rules of Civil Procedure: Crown
Zellerbach Canada Ltd. v. British Columbia (1979), 13
B.C.L.R. 276 (C.A.). In Ontario, rule 59.01 states: "An order of the court
is effective from the date on which it is made, unless it provides
otherwise". This is the authority under the Rules to antedate an order of the court, or to give the order retroactive
effect.
· 44 Our courts grant orders nunc pro tunc, or with retroactive effect, in a variety of circumstances,
sometimes on consent, in order to do justice between the parties. Many such
orders are made in motions court, where typically a time limit will have passed
to take certain action, either before the motion is argued, or while the motion
is pending. Without a nunc pro tunc order, a party's rights are defeated without regard to the merits
of the dispute. Examples include orders validating service of a writ or
statement of claim, and extending time and granting leave to appeal or to take
other actions governed by the Rules. In such circumstances a nunc pro tunc order is consistent with rule 2.01, providing that a failure to
comply with the Rules is an
irregularity and not a nullity and permitting the court to grant amendments or
other relief on such terms as are just "to secure the just determination
of the real matters in dispute".
· 45 The courts have recognized that nunc pro
tunc orders are also available where there is a statutory
requirement for leave before an action can be commenced. While earlier cases
had struggled with the question of whether an action commenced without leave
was a nullity (and not subject to revival by a nunc pro
tunc order) or simply irregular, the Court of Appeal in
Re New Alger Mines Limited
(1986), 54 O.R. (2d) 562 (C.A.) and Re Montego Forest
Products Ltd. (1998), 37 O.R. (3d) 651 (C.A.),
recognized that proceedings commenced without leave may be regularized by an
order granting leave nunc pro tunc, unless the statute in question precludes such relief. Both cases
dealt with leave required to pursue an action under the Bankruptcy
Act.
· 46 In McKenna Estate v. Marshall, 2005 CarswellOnt 5028, [2005] O.J. No. 4394 (S.C.), the court's
authority to make orders nunc pro tunc was considered and explained. The plaintiff's action, commenced
prior to the expiry of the time period stipulated in its notice of sale under
mortgage, contravened section 42 of the Mortgages Act which prohibited such actions without leave of the court.
· 47 Following the above-noted decisions of the Court of Appeal, and
referring to other case authorities, Sproat J. explained how the ability to
grant orders nunc pro tunc
enables a court to do justice between the parties, at paras. 23 and 24:
· ... [P]olicy considerations weigh in favour of finding that a nunc pro tunc order is available. As a
general principle the jurisdiction to make an order nunc
pro tunc in appropriate circumstances allows the Court
to do justice in accordance with the facts of a particular case. A narrow
interpretation which denies the Court the option of a nunc
pro tunc order may exalt form over substance, result in
increased costs and cause injustice.
· Take the case of a statutory requirement for leave to commence an
action. Assume a saintly plaintiff, a meritorious claim, a dastardly defendant
with assets and the intervention of a limitation period. If a nunc pro tunc order is available justice is
done.
· 48 Sproat J. described the authority of the court to grant orders nunc pro tunc, at para. 27:
· The authority of the Court to issue an order nunc
pro tunc is not of recent origin and certainly all
current legislation that requires a Court order prior to taking action has been
drafted in the recognition that the Court has this jurisdiction. In my opinion,
therefore, a simple statutory requirement for a Court order contemplates that
the order may be made nunc pro tunc. The question, therefore, becomes whether there is something in the
statute that, properly interpreted, indicates that a nunc
pro tunc order is not permitted. In other words, to
paraphrase Associate Chief Justice MacKinnon in New
Alger Mines Ltd., Re, does the statute "contain an
absolute prohibition against a nunc pro tunc order ...".
· 49 In McKenna Estate,
the failure to obtain leave was due to an oversight by counsel, and there was
no prejudice to the defendants other than the loss of the ability to argue that
leave was not obtained. If leave were not granted, the claim would be dismissed
for that reason alone. Leave was granted nunc pro tunc to permit the plaintiff's motion for summary judgment to proceed on
its merits.
· 50 The authority of the court to grant an order with retroactive
effect is not limited to cases of correcting a slip or oversight by counsel,
although that is an example of a situation where the court might consider
exercising its discretion to make such an order, after considering the relative
prejudice to the parties: Hogarth v. Hogarth [1945] 3 D.L.R. 78; [1945] O.J. No. 165 (H.C.J.); and see Re Cadillac Fairview Inc., [1995] O.J. No.
623 (Gen. Div.) at para. 7, where Farley J. observed that the court's nunc pro tunc jurisdiction is not limited to
the specific examples cited in Hogarth, but that "inherent jurisdiction is a useful tool in an
evolving common law matrix to fill gaps and avoid injustice".
· 51 Hogarth cites as
an example of nunc pro tunc
relief, the ability of the court to make an order as of the date when argument
before the court has terminated and the decision is reserved, "so as to
protect the litigant against injustice resulting from the delay in rendering
the judgment" (at para. 4). This is consistent with a line of cases
recognizing that an order nunc pro tunc may be granted to avoid an injustice that otherwise would flow from
delay in the courts which is beyond the control of the parties. The Latin maxim
is "actus curiae neminem gravab": what the court does ought not to prejudice a litigant.
· 52 The leading case considering this basis for nunc pro tunc relief, which has been cited
frequently by courts in our jurisdiction, is Turner v.
London and South-Western Railway Co. (1874) 17 L.R. Eq.
561. A plaintiff died between the date his case was heard and the delivery of
judgment, which had been reserved. Judgment could not issue in the plaintiff's
favour effective the date of its release, because of the common law rule that a
personal cause of action dies with a litigant. The court held that judgment
should be entered nunc pro tunc
as of the day when argument was completed, as no prejudice would be caused to
any party by doing so. Vice-Chancellor Hall noted that, "generally the
court would permit a judgment to be entered nunc pro
tunc when the signing of the judgment has been delayed
by the act of a court" (at p. 566).
· 53 In Couture v. Bouchard (1892), 21 S.C.R. 281, the Supreme Court of Canada applied the
maxim, invoking the Turner decision,
in quashing an appeal for want of jurisdiction. At the time the decision of the
court below was reserved, the amount of the judgment was below the monetary
threshold for an appeal, although legislation had been passed by the date of
judgment that would render the decision appealable. Taschereau J. held that the
judgment was to be treated as if it had been given the day the case had been
placed en délibéré, that is,
when argument was complete. To conclude otherwise would take away from the
respondents a right that had existed at the time the case was argued.
· ...
· 55 In nearly all of these cases, the plaintiff's claim abated
between the date of the hearing and the date judgment was issued, by operation
of a statute or otherwise. That is the situation that arose in the present
case, where the limitation period expired between the date my decision
respecting leave was reserved, and the date the decision was released. Amending
the order so that it operates nunc pro tunc would be consistent with the cases I have cited considering actus curiae.
· 56 The actus curiae
maxim has also been referred to more recently, in cases dealing with the
issuance of third party claims for contribution and indemnity, which are now
subject to a two year limitation period from the date of service of the
original claim on the defendant, under s. 18 of the Limitations
Act, 2002. In Numainville v.
Nanson, 2006 CanLII 27868, [2006] O.J. No. 3274 (S.C.),
the court granted leave to a defendant to file and serve a third party claim
effective the first return date of the motion to add the claim, invoking the actus curiae principle, where the limitation
period had expired by the time the motion was determined. Sandrabalan v. Toronto Transit Commission,
2009 CanLII 18298, [2009] O.J. No. 1610 (S.C.) is to the same effect, although
the third party claim that was issued after the expiry of a limitation period
was dismissed. Brown J. held that the court could not amend an earlier order of
the Master that granted leave to issue the third party claim, where to do so
would amount to an appeal of the Master's order where none had been taken. He
observed that nunc pro tunc
relief ought to have been requested before the Master at the time that leave
was granted (at para. 19).
· 57 The ability of the court to make an order nunc
pro tunc ensures that the rights of the parties will
not be impacted arbitrarily by the court's schedule, which is outside the
control of the parties. This is not a modern problem. In an English case near
the turn of the last century, The Queen v. Justices of
County of London and London County Council, [1893] 2
Q.B. 476, Lord Esher, M.R. endorsed the use of nunc pro
tunc orders to respond to delays within the courts. He
stated at p. 488:
· ... There might be general illness among the justices, or, as in
this case, an extraordinary glut of business, which was a matter with which
each person desiring to appeal had nothing to do, and could not help, could not
anticipate, and could not obviate or calculate upon...the glut of business in
the Court, and the inability of the Court to cope with it, is not to be brought
into play against the parties, who as far as they are concerned, have obeyed
the imperative enactment of the statute by putting down their appeal at a time
which would enable the Court, according to its ordinary course of practice, to
hear and determine the case [by the prescribed deadline].
· 58 I have referred at some length to relevant case law recognizing
the court's authority under the rules and its inherent jurisdiction to grant
orders nunc pro tunc. In my
view, the present case fits squarely within authorities for making a nunc pro tunc order where the plaintiffs'
rights have abated through no fault of their own, while a decision has been
reserved by the court. If the order granting leave is effective the date of
final argument, there is no question of expiry of the limitation period. The
prejudice to the plaintiffs caused solely by the court's own schedule, is
avoided.
· 59 I turn now to consider the defendants' arguments that nunc pro tunc relief is not available. The
defendants rely on a number of grounds: first, case law to suggest that nunc pro tunc relief cannot be granted where
there is an intervening limitation period; second, the argument that such
relief would entail the application of the doctrine of special circumstances,
which they submit is not available to extend the limitation period under the OSA; and third, that nunc
pro tunc relief is inconsistent with the statutory
regime and would undermine the intention of the limitation period in s. 138.14
of the OSA.
40 The
court in Silver also addressed
the Supreme Court of Canada decision in Trecothic Marsh, above, and concluded that the case did not prevent the use of nunc pro tunc in the context of limitation
periods:
· 64 The defendants also rely on a passage in the concurring decision
of Taschereau C.J.C. in Re Trecothic Marsh (1905), 37 S.C.R. 79. In that case,
the court considered an appeal from an order setting aside a writ of certiorari
in a land assessment case, where the relevant statute provided that no such
writ could be granted except within six months of the proceeding, or the
proprietor's notice that it was taken. The trial judge heard the application in
time, but gave the order after the six months had expired. Taschereau C.J.C.
concurred with the majority of the Supreme Court, and concluded that the time
limit would not apply where jurisdiction was at issue. In obiter however he
would have rejected the argument that the order for certiorari could have been
issued nunc pro tunc, as the actus curiae maxim could not apply where the
court's jurisdiction to grant the remedy had expired.
· 65 At issue in Re Trecothic Marsh was the jurisdiction of the court
to grant a particular remedy that existed by statute for a period of only six
months after a decision had been made. The particular statutory regime
involving land assessment provided a time limit of only six months for the
court to grant certiorari. The court concluded that an order nunc pro tunc
could not be used to override the statute and to defeat its intention so as to
extend indefinitely the court's jurisdiction to grant the relief in question.
The case does not stand for the proposition argued by the defendants, that a
court will lack jurisdiction to grant a nunc pro tunc order whenever a
limitation period is engaged.
41 The
present case does not involve the expiry of a limitation period and I cannot
equate the Applicant's situation with any of the jurisprudence referred to in Silver. Nor is it the case that the
Applicant's claim has abated between the date of the hearing and the date
judgment was issued. This is, in my view, a case where "there is something
in the statute that, properly interpreted, indicates that a nunc pro tunc order is not permitted."
42 Parliament's
clear intent in enacting subsection 87.4 of the Act was to
"terminate" permanent skilled worker applications made before 27
February 2008. The Applicant does not dispute this fact and he does not dispute
that his application was made before the operative date. His argument is that,
notwithstanding valid legislation that terminates his application, the Court can
somehow use a nunc pro tunc
order to grant him an order of mandamus for a skilled worker application that
no longer exists because it has been terminated by act of Parliament. To grant
such an order, in my opinion, and in the words of the Supreme Court of Canada
in Trecothic Marsh, above,
"would clearly be overriding the statute and defeating the intention of
the law-giver." It would amount to the Court extending its jurisdiction in
opposition to the law and the clear intention of Parliament.
Certification
43 The
Applicant has proposed the following question for certification:
· Does the Federal Court have jurisdiction to back-date its judgment
and reasons in order to prevent prejudice to an applicant whose application
falls under section 87.4(1) of IRPA?
44 The
Applicant argues that the answer to this question is of general importance and
would be dispositive of the appeal on the facts of this case.
45 The
Respondent says that it is trite and settled law that the Court has no power to
extend its jurisdiction and go against the express intent of Parliament.
46 The
Respondent also says that, in the present case, the Applicant does not
challenge the validity of subsection 87.4 of the Act; he simply says that it
should not apply to him for no principled reason.
47 In
addition, the Respondent says that no analogy can be made to cases where nunc pro tunc has been used in limitations
cases or otherwise.
48 I
have to agree with the Respondent. I see no analogy between this case and the
situations that arose in Silver
or any cases cited therein. In addition, the back-dating that the Applicant
requests would be an assumption of jurisdiction in a situation where Parliament
has made its intentions clear, so that the Court would be attempting to thwart
the clear and express intent of Parliament. I know of no principal or authority
that would allow me to do this and I think the law on point is clear. There
would be no purpose in certifying the proposed question.
JUDGMENT
THIS COURT'S JUDGMENT is that
The application is
dismissed.
There is no question
for certification.
RUSSELL J
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