Docket: A-99-25
Citation: 2025 FCA 84
CORAM: STRATAS J.A.
BIRINGER J.A.
WALKER J.A.
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BETWEEN: |
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ASHA ALI BARRE and ALIA MUSA HOSH |
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Appellants |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
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Respondents |
REASONS FOR ORDER
BIRINGER J.A.
[1] The appellants seek to appeal from an interlocutory order of an associate judge of the Federal Court (dated February 20, 2025). The associate judge dismissed the appellants’ motion for an extension of time to file their application record under Rule 21 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, S.O.R./93-22. He did this on the basis that he had previously denied an extension, dismissed a reconsideration of that decision and his decision denying the extension had not been appealed. The appellants now seek to appeal the interlocutory order (dated February 20, 2025), where the associate judge cited functus officio for dismissing the motion.
[2] This Court accepted the appellants’ notice of appeal for the sole purpose of allowing the parties to make submissions on whether the notice of appeal should be removed from the Court file under Rule 74 of the Federal Courts Rules, S.O.R./98-106 (the Rules) and the plenary powers of the Court. Under Rule 74 and the plenary powers of the Court, the Court may order that a notice of appeal that has no chance of success be removed from the file and the file closed: Dugré v. Canada (Attorney General), 2021 FCA 8 and the cases cited in paras. 19-25.
[3] The parties were directed to provide submissions on whether the appeal has any chance of success, given the following legislative provisions:
Pursuant to rule 51(1) of the Federal Courts Rules, S.O.R./98-106, the Order of an associate judge is appealed by motion to a judge of the Federal Court. The proposed appellant seeks to appeal an order of an associate judge;
Pursuant to section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge of the Federal Court certifies that a serious question of general importance is involved and states the question. No question of general importance has been certified in the underlying proceeding.
[4] The appellants submit that this Court has jurisdiction to hear their appeal on the basis that: (1) subsection 27(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 allows for an appeal to this Court from an interlocutory judgment and is not displaced by Rule 51(1); and (2) this Court has recognized circumstances where it may hear an appeal of a matter under the IRPA in the absence of a certified question under section 74(d) of the IRPA. According to the appellants, the associate judge’s declaration of functus officio is one such circumstance.
[5] In Canada (Citizenship and Immigration) v. Tennant, 2019 FCA 206 [Tennant] this Court concisely summarized the legislative framework for appeals to this Court under the IRPA (at para. 34): “Both the
Citizenship Act and the
IRPA … preclude appeals to this Court from interlocutory and leave decisions, and preclude appeals to this Court from judgments issued in applications for judicial review in the absence of a certified question.”
[6] Paragraph 72(2)(e) of the IRPA provides that “no appeal lies from the decision of the Court with respect to the application [for judicial review] or with respect to an interlocutory judgment”
. The associate judge’s order which the appellants seek to appeal is an interlocutory order captured by paragraph 72(2)(e). Although Rule 51 provides for the appeal of an order of an associate judge to a judge of the Federal Court, this Court has confirmed that the IRPA prevails over the Rules, such that paragraph 72(2)(e) applies in the event of a conflict with Rule 51(1): Froom v. Canada (Minister of Citizenship and Immigration), 2003 FCA 331 at para. 3, citing Yogalingam v. Canada (Minister of Citizenship and Immigration), 2003 FCT 540.
[7] Accordingly, the order of the associate judge is final, subject to certain exceptions where a case raises “very fundamental matters”
that “strike at the rule of law”
or there is an alleged error made in the context of a “separate, divisible judicial act”
involving the exercise of power not found in the IRPA: Canada (Public Safety and Emergency Preparedness) v. Ewen, 2023 FCA 225 at para. 17, Harkat v. Canada (Attorney General), 2021 FCA 209 at paras. 20-25 [Harkat]. This may include issues of jurisdiction or bias: Shorif v. Canada (Citizenship and Immigration), 2024 FC 1709 at para. 12; Siewe v. Canada (Citizenship and Immigration), 2022 FCA 139 at para. 9 [Siewe].
[8] The appellants argue that the associate judge’s declaration of functus officio raises a jurisdictional issue. Putting aside the issue of whether this is a tenable argument, it does not enable the appellants to commence an appeal in this Court.
[9] Rule 51(1) provides that an appeal from a decision of an associate judge is heard by a Federal Court judge: Alexion Pharmaceuticals Inc. v. Canada (Attorney General), [2016] F.C.J. No. 1494 [Alexion]; Vaughan v. Canada, [2000] F.C.J. No. 311. While subsection 27(1) of the Federal Courts Act provides for appeals to this Court from certain decisions of the Federal Court, a decision of an associate judge is not a final or interlocutory judgment of the Federal Court for the purposes of subsection 27(1): Alexion at paras. 7 and 8. Subsection 27(1) of the Federal Courts Act does not provide the appellants with a right of appeal to this Court from the associate judge’s decision.
[10] The appellants cite Tennant to support their argument that this Court can hear an appeal in the absence of a certified question under section 74(d) of the IRPA. Here, there is no certified question.
[11] Tennant, Harkat and Siewe confirm that a refusal to exercise jurisdiction may justify hearing an appeal of an application for judicial review in the absence of a certified question, despite a preclusive clause that limits an appeal to where there is one. However, these cases do not assist the appellants. The context and section 74(d) of the IRPA concern an appeal from a judgment of the Federal Court on an application for judicial review. They do not create a substantive right of appeal to this Court from an interlocutory decision of an associate judge of the Federal Court.
[12] For these reasons, the notice of appeal will be removed from the Court file and the Court file closed. As no costs were requested, none shall be awarded.
“Monica Biringer”
“I agree.
David Stratas J.A.”
“I agree.
Elizabeth Walker J.A.”
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