Docket: IMM-11212-23
Citation: 2025 FC 1844
Ottawa, Ontario, November 20, 2025
PRESENT: Mr. Justice McHaffie
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BETWEEN: |
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ASHA ALI BARRE
ALIA MUSA HOSH |
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Applicants |
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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 |
ORDER AND REASONS
I. Overview
[1] This appeal from an Order of an Associate Judge concerns the doctrine of functus officio. The doctrine, directed at an orderly appeal procedure and ensuring finality in litigation, holds that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision. The Associate Judge held that the doctrine prevented the Court from considering the applicants’ motion for an extension of time to perfect their application for leave and judicial review, since the Court had denied a prior request for the same relief. In an Order dated February 20, 2025, he denied the second motion on the basis that the Court was functus officio.
[2] With respect for the Associate Judge’s contrary view, I conclude that the doctrine of functus officio did not preclude consideration of the second extension motion, as it did not require the Court to reopen or otherwise reconsider its prior decision. The Associate Judge had the jurisdiction to consider the second extension motion and erred in declining that jurisdiction.
[3] This is not to diminish in any way either the principle of finality or the rule that a party must put their best foot forward on a motion. Nor is it to invite parties to file multiple motions seeking the same relief. Such motions will usually fail, as other doctrines governing finality, notably issue estoppel and abuse of process, may apply even where the functus officio doctrine does not. The doctrine of issue estoppel, which generally prevents a party from re-litigating a question that has previously been decided in a final decision involving the same parties, applies in this case. However, the principles of issue estoppel include the Court’s discretion not to apply the general rule where it would cause an injustice.
[4] The circumstances of the present case are such that a significant injustice would result from declining to hear the second motion for an extension of time. The applicants’ first motion was filed by the same former counsel that missed the original deadline to perfect the applicants’ application for leave and judicial review, despite reminders and inquiries from the applicants themselves. The first motion was inadequate, as the Associate Judge noted in his earlier order appropriately dismissing that motion. The principles governing ineffective assistance by counsel provide grounds for the Court to exercise its residual discretion to consider the second motion.
[5] Making the order I conclude the Associate Judge should have made, I will grant the applicant who has filed this appeal, Asha Ali Barre, an extension of time in which to perfect this application for leave and judicial review.
II. Issues and Standard of Review
[6] Although this appeal is ultimately about an extension of time, it raises a number of procedural and jurisdictional issues, given the statutory and procedural context in which it arises. These issues are conveniently addressed in the following order:
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Does the Court have jurisdiction to hear this appeal notwithstanding the general rule against interlocutory appeals in immigration matters?
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Should an extension of time be granted to bring this appeal?
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Did the Associate Judge err in finding the Court was functus officio?
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Do other finality doctrines apply to the applicants’ second motion seeking effectively the same relief?
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Should the Court grant the second motion for an extension of time?
[7] The second of these issues is the only one the Associate Judge addressed in the Order under appeal. On that issue, the Court applies the usual appellate standards of review, namely correctness on issues of law and “palpable and overriding error”
on issues of fact, mixed fact and law, and discretion: Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at paras 2, 28, 66–79, citing Housen v Nikolaisen, 2002 SCC 33.
[8] In the administrative law context, jurisprudence from the Federal Courts indicates that whether the doctrine of functus officio and the applicable test have been properly identified is a question of law, but that the application of the test may be factually-driven and thus merit deference: El-Helou v Canada (Courts Administration Service), 2016 FCA 273 at paras 63–64; Canadian Association of Film Distributors and Exporters v Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc, 2014 FCA 235 at para 58; Sainflina v Canada (Citizenship and Immigration), 2022 FC 1439 at para 13. In the judicial context, the Alberta Court of Appeal has applied the correctness standard to the entire question of “whether a judicial officer is
functus officio”
: R v Arens, 2016 ABCA 20 at para 18; Dow Chemical Canada ULC v NOVA Chemicals Corporation, 2021 ABCA 153 at para 36.
[9] In the present case, there were no contested factual determinations. The Associate Judge made effectively two factual determinations: that the relief sought on the second motion was the same that had previously been denied; and that the earlier order dismissing the first motion was not the subject of an appeal. These findings are not contested. In my view, the Associate Judge’s conclusion that the Court was functus officio turned on an extricable issue of law regarding the scope of the doctrine. I will therefore apply the correctness standard.
III. Analysis
A. The Court has jurisdiction to hear this appeal
(1) The interlocutory appeal bar and its recognized exceptions
[10] As a general matter, a decision of an associate judge can be appealed to a judge by motion pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106. However, since the applicants’ application for leave and judicial review arises under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], it is also governed by Division 8 of Part 1 of the IRPA (sections 72 to 75) and this Court’s Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [Federal Courts Immigration Rules].
[11] Paragraph 72(2)(e) of the IRPA provides that no appeal lies from the decision of the Federal Court “with respect to the application [for leave] or with respect to an interlocutory judgment.”
A similar bar against appeals applies to final decisions on the application for judicial review unless the Federal Court certifies a serious question of general importance: IRPA, s 74(d). As a result, the almost universal rule is that no appeal can be brought of an interlocutory decision of an associate judge in an immigration matter: see, e.g., Gomez Ramirez v Canada (Citizenship and Immigration), 2024 FC 628 at para 18; Orhorhoro v Canada (Citizenship and Immigration), 2025 FC 1149 at paras 10–12; Shorif v Canada (Citizenship and Immigration), 2024 FC 1709 at paras 10–16 and the jurisprudence cited therein.
[12] Despite the statutory language, however, the Federal Court of Appeal has confirmed that certain limited exceptions are to be implied into paragraphs 74(d) and 72(2)(e), whether as an interpretative or a constitutional matter (or both): Canada (Public Safety and Emergency Preparedness) v Ewen, 2023 FCA 225 at paras 15–18; Subhaschandran v Canada (Solicitor General), 2005 FCA 27 at paras 13–17; Canada (Citizenship and Immigration) v Tennant, 2019 FCA 206 [Tennant (2019)] at paras 37–42, 49–51; Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132 [Tennant (2018)] at paras 10–15; Li v Canada (Citizenship and Immigration), 2024 FCA 174 at para 11.
[13] As the Court of Appeal has noted, the nature of these exceptions has been described in a number of ways, but always with the recognition that they are narrow: Tennant (2019) at paras 38–41; Tennant (2018) at paras 11, 16–18; Harkat v Canada (Attorney General), 2021 FCA 209 at para 37.
[14] One of the exceptions, recognized by the Court of Appeal over 20 years ago and reiterated frequently since, lies where the Federal Court has failed or refused to exercise its jurisdiction: Subhaschandran at para 13; Canada (Citizenship and Immigration) v Goodman, 2016 FCA 126 at para 3; Wong v Canada (Citizenship and Immigration), 2016 FCA 229 at para 12; Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 144 at para 13; Harkat at para 23; Siewe v Canada (Citizenship and Immigration), 2022 FCA 139 at para 9; Ewen at para 17.
(2) Procedural background to this motion
[15] The applicants first brought an appeal of the Associate Judge’s Order of February 20, 2025, to the Federal Court of Appeal. After seeking submissions from the parties on Rule 51(1) of the Federal Courts Rules and paragraph 74(d) of the IRPA, the Court of Appeal concluded that the notice of appeal should be removed from the Court file pursuant to Rule 74 of the Federal Courts Rules: Barre v Canada (Citizenship and Immigration), 2025 FCA 84 [Barre (FCA)] at paras 2–3, 12.
[16] In her Reasons for Order, Justice Biringer briefly addressed the appeal bar in paragraph 72(2)(e), the line of jurisprudence cited above regarding exceptions to it, and the applicants’ argument that the Associate Judge’s declaration of functus officio raised a jurisdictional issue: Barre (FCA) at paras 4–8. However, she concluded that regardless of whether an exception to the appeal bar might apply, the applicants had no appeal to the Court of Appeal, as Rule 51(1) of the Federal Courts Rules provides that appeals from an associate judge are taken to a judge of the Federal Court and not to the Federal Court of Appeal: Barre (FCA) at paras 8–12. The appellants’ notice of appeal was therefore removed from the Court file, and the Court file was closed.
[17] After the Federal Court of Appeal’s Order, Ms. Barre filed the motion for appeal that is now before the Court. The other applicant, Alia Musa Hosh, elected not to pursue this appeal.
[18] Ms. Barre’s appeal was originally filed as a motion in writing. In her written representations, Ms. Barre repeated her argument that the Court had jurisdiction to hear the appeal given the recognized exceptions the appeal bar. The Minister of Citizenship and Immigration’s written response did not address the jurisdictional question, apparently conceding the issue (references to the “Minister”
in these reasons are to the Minister of Citizenship and Immigration; see the concluding housekeeping note at paragraph [120] below).
[19] Having reviewed the written materials, the Court issued a direction convening an oral hearing pursuant to Rule 369(4) of the Federal Courts Rules. The Court’s direction asked the parties to be prepared to address certain questions regarding functus officio and other finality doctrines. It did not seek further submissions on Rule 51 or paragraph 72(2)(e) of the IRPA. Nonetheless, the day before the oral hearing, the Minister filed a list of cases suggesting an intention to argue the appeal was barred by paragraph 72(2)(e). Despite the irregularity and discourtesy of this approach, applicant’s counsel was prepared to address the issue at the oral hearing, and I heard both parties’ submissions on the issue.
(3) Application of the recognized exceptions in this case
[20] Since the Federal Court of Appeal did not decide whether Ms. Barre’s appeal of the Associate Judge’s Order falls within an exception to the appeal bar in paragraph 72(2)(e) of the IRPA, it falls to this Court to do so. For the following reasons, I conclude it does.
[21] Ms. Barre argues that the Court can hear this appeal because it relates to a matter of jurisdiction, and in particular the refusal to exercise jurisdiction. She cites, among other jurisprudence, Tenant (2019) and Justice Biringer’s observation that the exceptions “may include issues of jurisdiction or bias”
: Tenant (2019) at paras 37–38; Barre (FCA) at para 7, citing Shorif at para 12 and Siewe at para 9.
[22] As discussed in further detail below, the doctrine of functus officio does pertain to the jurisdiction of a Court to hear a matter, i.e., whether the Court has exhausted their authority to consider a matter: Canadian Broadcasting Corp v Manitoba, 2021 SCC 33 at paras 1, 6, 32–33, 36. As the Supreme Court of Canada explained, “[a] court loses jurisdiction, and is thus said to be
functus officio, once the formal judgment has been entered”
: CBC v Manitoba at para 33.
[23] That said, simply referring to a matter as one of “jurisdiction”
may cast the recognized exception too broadly. The Federal Court of Appeal has noted the potential difficulties in relying on this term, which can have a number of meanings depending on the circumstances: Li at paras 12–13, citing Tennant (2018) at para 20; see also Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 65–68.
[24] However, as Ms. Barre argues and as noted at paragraph [14] above, the Court of Appeal has long recognized an exception to the appeal bar where the Federal Court has failed or refused to exercise its jurisdiction, that is to say, where the Court has not exercised a power or authority that it has and ought to have exercised. In my view, this precisely describes the issue in the present case. The Associate Judge declined to hear the applicants’ second extension motion on its merits, finding the Court had no jurisdiction or authority to do so because it was functus officio. The situation is thus very different from an associate judge’s refusal to grant a motion for an extension of time on the merits, as in the cases cited by the Minister: Gomez Ramirez at paras 12, 18; Orhorhoro at paras 4–6, 10–12; see also Shorif at paras 7–9, 12–16. The recognized exception to the appeal bar based on a refusal to exercise jurisdiction therefore applies.
[25] I note that I cannot accept the Minister’s argument, raised at the hearing, that there is no ability to appeal since the Associate Judge was correct in finding that the Court was functus officio, and thus there was no failure or refusal to exercise jurisdiction. In essence, the Minister argues that the exceptions to the appeal bar only apply where an associate judge erred in declining jurisdiction, and not when they were correct to do so. This argument seems circular, effectively requiring the Court to determine the merits of an appeal (by deciding whether the associate judge was correct) in order to determine whether it can hear the appeal. Contrary to the Minister’s submissions, I cannot read the references to “jurisdictional error”
in the case law to mean that jurisdiction to hear an appeal depends on the merits of the appeal: Goodman at para 3; Gomez Ramirez at para 20.
[26] In my view, the recognized exception is better characterized as being that an appeal lies where the issue on appeal is the Court’s refusal to exercise its jurisdiction. Where the Court has in fact exercised its jurisdiction, the exception does not apply: Siewe at para 10; Wong at para 12. However, where the Court has refused to exercise a jurisdiction and the issue is whether it was correct or incorrect to do so, this can be decided on appeal, since “a remedy must be available”
to cure an erroneous refusal: Subhaschandran at para 15. In any case, as the Minister recognizes, the result is the same, namely that the Court must consider the merits of the refusal to exercise its jurisdiction, and a well-founded appeal on the issue will be granted while an unfounded one will be dismissed.
[27] I therefore conclude that the Court has jurisdiction to hear this appeal pursuant to Rule 51 of the Federal Courts Rules, despite the statutory bar on interlocutory appeals set out in paragraph 72(2)(e) of the IRPA.
B. An extension of time to file this appeal is warranted
[28] The Order under appeal was issued on February 20, 2025. This appeal motion was filed on May 27, 2025, well outside the 10-day period provided for appeals from an order of an associate judge set out in Rule 51(2). Ms. Barre therefore seeks an extension of time to bring this appeal, pursuant to Rule 8(1) of the Federal Courts Rules.
[29] In considering whether to grant an extension, the Court will consider the factors set out in Canada (Attorney General) v Hennelly, 1999 CanLII 8190 (FCA) at para 3 and Canada (Attorney General) v Larkman, 2012 FCA 204 at para 61, namely whether the moving party has shown:
1. a continuing intention to pursue the underlying proceeding;
2. that the proceeding has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[30] Not all of these factors must be resolved in the moving party’s favour. Rather they guide the Court in determining whether granting an extension of time is in the interests of justice: Larkman at para 62. The factors must also be considered in the context of the period of extension requested, in this case somewhat less than three months: Larkman at para 63.
[31] Ms. Barre’s affidavit establishes her continuing intention to pursue both the appeal of the Associate Judge’s Order and the application for judicial review. The fact that a notice of appeal of the Order was filed with the Federal Court of Appeal within the 10-day period also attests to her intention. It also explains much of the delay in filing an appeal in the Federal Court. There was some additional delay between the Federal Court of Appeal’s Order of April 25, 2025, and the filing of this motion on May 27, 2025. Ms. Barre explains this was caused by the need to consider options in the wake of the Federal Court of Appeal’s Order, to gather funds to retain counsel for this motion, and to determine whether Ms. Hosh would be proceeding with the appeal. In the circumstances and in light of the nature of delay, I am satisfied this explanation is reasonable.
[32] I am equally satisfied that Ms. Barre’s appeal motion has merit, as will be clear from the remainder of these reasons. The Minister has not alleged any prejudice from the proposed extension and I can see none arising from the delay in filing this appeal motion in these circumstances.
[33] Considering the Hennelly/Larkman factors and the length of the delay, I am satisfied it is in the interests of justice to grant an extension of time for the filing of this appeal motion to May 27, 2025, the date on which it was filed.
C. The Associate Judge erred in finding that the Court was functus officio
(1) The doctrine of functus officio
[34] The doctrine of functus officio is one of a number of doctrines that serve the important goals of finality and the orderly conduct of litigation. However, unlike other doctrines that serve the goal of finality, such as issue estoppel and abuse of process, the functus officio doctrine constrains decision makers rather than litigants. It defines when a court or other decision maker is functus officio (has performed its office), and what the decision maker is thereafter prevented from doing.
[35] The Supreme Court of Canada addressed the doctrine in its 2021 decision in CBC v Manitoba. There, the issue was whether a court retains jurisdiction to revisit sealing orders and publication bans after it has decided the merits of a case. Justice Kasirer, speaking for the majority, found that functus officio did not prevent a court from managing its record and protecting the open court principle, even if it had lost jurisdiction over the merits: CBC v Manitoba at paras 1, 6, 32–40.
[36] In doing so, Justice Kasirer described both the traditional understanding of the doctrine and its contemporary meaning. Traditionally, the doctrine meant that “once a judge decided a matter, they had discharged their office and did not have the ability to return to and correct their decision”
: CBC v Manitoba at para 32; Anna SP Wong, “Doctrine of
Functus
Officio: The Changing Face of Finality’s Old Guard”
2020 CanLII Docs 3309, (2020) 98:3 Can Bar Rev 543 at pp 546-547. In its “contemporary guise,”
the doctrine means that “a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision,”
unless there is a statutory basis to do so, there is an error in expressing the court’s intention, or the matter had not been heard on its merits: CBC v Manitoba at para 33. In support of this contemporary definition, Justice Kasirer cited three prior Supreme Court decisions addressing the doctrine, namely Chandler v Alberta Association of Architects, 1989 CanLII 41, [1989] 2 S.C.R. 848; Reekie v Messervey, 1990 CanLII 158, [1990] 1 S.C.R. 219; and Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62. I will address these decisions further below.
[37] Justice Kasirer’s discussion sets out two important elements of the doctrine of functus officio: when it is triggered, and what it precludes.
(a) When the doctrine is triggered
[38] As described by Justice Kasirer, the functus officio doctrine applies when formal judgment is entered on a final decision of a court that is susceptible of appeal: CBC v Manitoba at para 33. There are three related elements in this formulation of the doctrine: (i) the entering of a formal judgment; (ii) the need for a “final”
decision; and (iii) the decision being susceptible of appeal.
(i) Formal judgment
[39] The requirement that formal judgment be entered means that a court may correct its errors or even reverse itself before it issues its judgment: R v Adams, 1995 CanLII 56 (SCC) at para 29; R v Smithen-Davis, 2020 ONCA 759 at paras 32–34; Clark v TD Waterhouse Canada Inc, 2013 ABCA 123 at paras 12, 17; R v Lawrence, 2004 ABCA 13 at paras 3–5; see also Anna Wong at pp 552–553; Donald J Lange, The Doctrine of Res Judicata in Canada, 5th ed (Toronto: LexisNexis, 2021) at pp 523–527.
(ii) Final decision
[40] The Supreme Court of Canada has not provided a clear definition of what amounts to a “final decision”
for the purposes of the functus officio doctrine. Several possibilities arise out of the jurisprudence: (a) only the final decision or judgment on the merits of a proceeding; (b) more broadly, both the final decision or judgment and some interlocutory decisions that affect substantive rights or impact the final merits of the matter; or (c) more broadly still, any decision, interlocutory or otherwise, that has been reflected in an order and has not been appealed. As discussed below, the most recent pronouncements from the Supreme Court of Canada and the Federal Court of Appeal suggest that the second definition best reflects the current state of the law, although arguments could be made in favour of the broadest definition, at least for some purposes.
[41] In CBC v Manitoba, Justice Kasirer referred to “a final decision of a court that is susceptible of appeal,”
suggesting a link between finality and appealability, but did not discuss at length the question of what makes a decision “final”
: CBC v Manitoba at paras 33, 38. This link is also made in paragraph 39 of the decision, which also distinguishes between different types of interlocutory motions:
While some interlocutory motions, such as motions relating to the admissibility of evidence, may have an impact on the final decision on the merits, deciding public access to the court record has no bearing on the underlying proceeding or its appeal. The doctrine of functus officio reflects the transfer of the decision‑making authority in respect of final judgments from the court of first instance to the appellate court […]. It was never intended to restrict the ability of those lower courts to control their own files in respect of these decisions.
[Emphasis added; citations omitted.]
[42] This statement suggests that an interlocutory motion that does not impact the “final decision on the merits”
may not trigger the doctrine (or may not be precluded by the doctrine), while some interlocutory matters may. Justice Kasirer goes on to note that functus officio may apply to a decision concerning court openness that is formalized in an order, again recognizing that at least some interlocutory decisions may trigger the doctrine: CBC v Manitoba at paras 40–41. However, the Supreme Court’s ultimate conclusion was that the Manitoba Court of Appeal was precluded by functus officio from “rehearing an appeal on the merits”
or from “reconsidering the substance of the appeal,”
but not from revisiting an earlier publication ban, despite the fact that it had been incorporated into an issued judgment, although it was not expressly mentioned in the certificate of decision: CBC v Manitoba at paras 6–7, 17–20, 25, 31, 39–41.
[43] It therefore appears that a “final decision”
does not refer exclusively to the ultimate decision on the merits of an action or application and does not rule out the application of functus officio to at least some interlocutory decisions that give rise to formally entered orders: see also Midway Mfg Co v Bernstein, 1988 CanLII 10250, 23 CPR (3d) 272 (FCTD) at p 274; Janssen Inc v Abbvie Corporation, 2014 FCA 176 at paras 34–35; Adams at para 29; Cambie Surgeries v British Columbia (Attorney General), 2017 BCCA 287 at para 63; Aird v Country Park Village Properties (Mainland) Ltd, 2005 FC 1170 at para 10.
[44] In a recent obiter discussion of issue estoppel and functus officio, the Federal Court of Appeal similarly rejected the suggestion that functus officio can never apply to procedural motions: Canada v Greenwood, 2024 FCA 22 at paras 34, 39–40, 44–45. Justice Boivin equated the requirement for a final decision for purposes of functus officio to the similar requirement for issue estoppel, and adopted the “substantive issue”
test referred to in the Court of Appeal’s earlier decision in Apotex: Greenwood at paras 34, 40, 44–45, citing Apotex Inc v Merck & Co, 2002 FCA 210 at para 27 and CBC v Manitoba at para 34. Under this approach, a final decision is one that “affects substantive rights of the parties with respect to a matter bearing on the merits of the cause of action”
: Apotex at para 27, citing Donald J Lange, The Doctrine of Res Judicata in Canada, 1st ed (Toronto: Butterworths, 2000) at p 78; see also Angle v MNR, 1974 CanLII 168, [1975] 2 S.C.R. 248 at pp 254–255; Loewen v Manitoba Teachers’ Society, 2015 MBCA 13 at paras 82–83.
[45] The “substantive issue”
test referred to in Greenwood appears consistent with Justice Kasirer’s reference to matters that “have an impact on the final decision on the merits”
in the passage reproduced above. In addition to the certification order at issue in Greenwood, it would appear to also capture injunctions, orders directing a reference, and interim costs orders, which are all interlocutory orders that are discussed in prior cases: Janssen at paras 34–43; Midway Mfg at pp 273–274; Aird at para 10.
[46] Conversely, however, the Supreme Court in Figliola held that “final”
for purposes of issue estoppel simply means that “all available means of review or appeal have been exhausted,”
or that a party has chosen not to avail itself of those steps: British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 at para 51. Applying this approach to finality for purposes of functus officio would effectively mean that any interlocutory decision that had not been appealed would be a “final decision.”
This would not appear to accord with either the discussion in CBC v Manitoba or the Federal Court of Appeal’s adoption of the “substantive issue”
approach in Greenwood, although it would be the inevitable result of treating the “final decision”
criterion equally for purposes of functus officio and issue estoppel, and treating Figliola as determinative of the meaning of that criterion.
[47] As a final note on this question, it is worth mentioning Anna Wong’s paper on functus officio that was cited in CBC v Manitoba, which refers to finality having a substantive aspect and a formal one: Anna Wong at p 552. The formal aspect—the need for a formal judgment in the case of a court—is discussed above. As for the substantive aspect, the author suggests that finality requires a decision maker to have “completely fulfilled her task in disposing of issues raised in the proceeding,”
without validly reserving a right to later exercise any powers: Anna Wong at pp 552–553, citing Chandler at p 862; see also Lange (5th ed) at pp 98, 522–524. While this provides some context, neither this description nor the passage from Chandler on which it relies addresses specifically the question of whether “the proceeding”
in question may include an interlocutory motion or is limited to the proceeding as a whole.
[48] Based on the foregoing, it can be said with confidence that the doctrine of functus officio applies to at least some interlocutory decisions, but it is less clear whether all interlocutory orders, regardless of whether they affect the substantive rights of a party on the merits, constitute “final decisions”
for purposes of the doctrine. Based on the Federal Court of Appeal’s most recent statement on the question in Greenwood, the current state of the law in this Court appears to be that interlocutory decisions that affect the substantive rights of a party with respect to a matter bearing on the merits of the case can trigger the functus officio doctrine.
(iii) Susceptible of appeal
[49] The “susceptible of appeal”
element in Justice Kasirer’s formulation of the functus officio doctrine stems from a “central rationale”
for the doctrine, namely the need for an orderly appellate procedure based on a stable judgment: CBC v Manitoba at paras 34, 39, 41; Anna Wong at p 548. This aspect of the doctrine is highlighted by two earlier Supreme Court of Canada judgments authored by Justice Sopinka, Chandler and Reekie.
[50] Chandler dealt with the application of functus officio to administrative tribunals, which is the context of much of the contemporary jurisprudence on the doctrine. Justice Sopinka, for the majority of the Supreme Court, noted that the general rule that a court could not reopen its own final decision stemmed from an early English case, In re St Nazaire Co (1879), 12 Ch D 88. The rule was based on the transfer of review jurisdiction to the appellate division by the Judicature Acts: Chandler at p 860; St Nazaire at pp 96–101.
[51] Relying on St. Nazaire, an earlier Supreme Court decision held that the rule against reopening a decision did not apply to the Immigration Appeal Board, since it was not subject to appeal except on a question of law: Grillas v Minister of Manpower and Immigration, 1971 CanLII 3, [1972] S.C.R. 577 at pp 582 (per Abbott J), 588–589 (per Martland J, dissenting but not on this point). Despite this earlier decision, Justice Sopinka found that functus officio did apply to administrative tribunals, based on the policy in favour of finality of proceedings: Chandler at pp 861–862. However, he noted that the application must be more flexible and less formalistic where the tribunal is subject only to a limited appeal right, and that “[j]ustice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal”
: Chandler at p 862.
[52] The importance of ensuring justice in the absence of an appeal right also underlies Justice Sopinka’s brief decision in Reekie. There, the Supreme Court had issued an order refusing leave to appeal. The appellant sought reconsideration, on grounds that the Court of Appeal decision she was appealing had applied jurisprudence that the Supreme Court had reversed shortly before the leave application was dismissed. The appellant relied on Rule 50 of the Rules of the Supreme Court of Canada, SOR/83-74, which reflected the common law rule of functus officio. While Rule 50 limited motions to vary a judgment to slips or errors in expressing intention, Justice Sopinka found, on behalf of the leave panel, that “it would be extraordinary if the Court were powerless to remedy the injustice”
the appellants would suffer if the leave dismissal order stood: Reekie at p 222. Citing Chandler, he noted that the common law rule of functus officio was developed to achieve finality in proceedings that were subject to a full appeal, and that its narrow application was “inappropriate to decisions of this Court which are not subject to appeal”
: Reekie at pp 222–223. He therefore applied a “gap rule”
to find authority to grant the application to reconsider the leave decision: Reekie at pp 222–223.
[53] In their majority opinion in Doucet-Boudreau, Justices Iacobucci and Arbour cited Chandler and Reekie in discussing the extent to which functus officio applied to prevent ongoing court oversight over remedies granted under subsection 24(1) of the Canadian Charter of Rights and Freedoms. They found it “clear that the principle of
functus
officio exists to allow finality of judgments from courts which are subject to appeal,”
and that allowing a court to vary its own decisions would deny litigants a stable base from which to launch an appeal: Doucet-Boudreau at para 79.
[54] As can be seen from this review, the four most recent decisions of the Supreme Court that substantively address the doctrine of functus officio each underscore that the doctrine applies, at least in its strictest sense, to judgments that are subject to appeal, not only in the administrative context but the judicial context: see also Greenwood at para 44.
[55] This evidently has potential implications regarding the application of the doctrine in the immigration and citizenship context, where most decisions are not subject to appeal: IRPA, ss 72(2)(e), 74(d); Citizenship Act, RSC 1985, c C‑29, ss 10.6, 10.7, 22.1(2)(d), 22.2(d). Indeed, reading the restatement of the doctrine in CBC v Manitoba on its face, one might conclude that the doctrine of functus officio has no application at all to any interlocutory decision under the IRPA or the Citizenship Act, or to any final decision in which a serious question of general importance is not certified, since such decisions are not “susceptible of appeal”
except in the limited circumstances discussed above: CBC v Manitoba at para 33.
[56] This possibility was raised by Justice Létourneau of the Federal Court of Appeal in concurring reasons in an earlier citizenship case, Canada (Citizenship and Immigration) v Arif, 2010 FCA 157. Justice Létourneau referred to Reekie (which cites Chandler) and Doucet-Boudreau for the proposition that “there are compelling authorities stating that the
functus officio rule does not apply strictly, and even does not apply, when no further appeal lies from the decision rendered”
: Arif at paras 29–31. Since judgments of the Federal Court are not subject to further appeal in citizenship matters, Justice Létourneau considered that the Federal Court judge had erred by taking a stringent approach to the functus officio doctrine and applying it in an overly strict manner: Arif at paras 29, 32. Justice Létourneau’s concurrence has not received further consideration, either before or after the Supreme Court’s confirmation of the importance of appeal rights as part of the doctrine of functus officio in CBC v Manitoba. However, it remains consistent with the approach discussed in Chandler and the insistence on the “susceptible of appeal”
criterion in CBC v Manitoba.
[57] At the same time, an orderly appellate procedure is only one of the animating principles behind the doctrine of functus officio. The other is that of finality: CBC v Manitoba at para 34; see also Doucet-Boudreau at paras 77–79 (per Iacobucci and Arbour JJ), 114–115 (per LeBel and Deschamps JJ, dissenting). The principle of finality is what led the Supreme Court in Chandler to conclude that the doctrine applied to administrative tribunals even in the absence of a full appeal right, albeit in a more flexible form: Chandler at pp 861–862. Similarly, in the judicial context, the absence of an appeal right in Reekie led to a flexible application of the doctrine rather than its complete exclusion: Reekie at pp 222–223. This was also the recent conclusion of the Ontario Superior Court of Justice in Batista, a case dealing with another type of judicial order from which there is no right of appeal, namely the forfeiture of money pledged on a recognizance of bail under subsection 771(2) of the Criminal Code, RSC 1985, c C‑46: R v Batista, 2024 ONSC 5455 at paras 22–33.
[58] Recent jurisprudence of this Court has confirmed on many occasions that the doctrine of functus officio does apply to the Court’s final disposition of an application for leave or an application for judicial review, a decision that is similarly not subject to appeal by virtue of paragraph 72(2)(e) of the IRPA or paragraph 22.1(2)(d) of the Citizenship Act: see, e.g., Shen v Canada (Citizenship and Immigration), 2017 FC 115 at paras 1, 10, 12–13; Ismael v Canada (Citizenship and Immigration), 2018 FC 1191 at para 29; Alsaloussi v Canada (Attorney General), 2021 FC 168 at paras 6–12, 27; Songo c Canada (Citoyenneté et Immigration), 2024 CF 1278 at paras 1–5 [currently only available in French]; Barrington Lee v Canada (Citizenship and Immigration), 2024 FC 1885 at paras 1, 5. While none of these decisions have addressed the absence of an appeal right, or whether a flexible application of the doctrine is justified by this absence, it is clear that the weight of authority is that the Court is functus officio upon issuing a final decision determining an application for leave or an application for judicial review.
(b) What the doctrine precludes
[59] Generally stated, when the doctrine of functus officio applies, it prohibits the court that issued the decision from reconsidering it: CBC v Manitoba at para 33. “Reconsidering”
in this context involves revisiting or reopening the decision by changing, correcting, or amending the judgment or the reasons given to justify it: CBC v Manitoba at paras 1, 32–33; Doucet-Boudreau at paras 78–79, 113–115; Chandler at pp 860–862; Toor v Dhillon, 2020 BCCA 309 at para 12.
[60] As noted above, this prohibition is directed at the court itself, rather than at the parties; the court is precluded from reopening its decision even if it may want to of its own accord: Anna Wong at pp 548–549. While this has an impact on parties as well, preventing them from seeking to reopen a final decision, functus officio goes beyond the conduct of parties to deprive the court itself of jurisdiction: Doucet-Boudreau at para 79; Chandler at pp 861–862; CBC v Manitoba at para 33.
[61] Even in its strictest application, the law has allowed limited exceptions to the general prohibition on reopening a decision. The two most commonly described exceptions arise where there has been a slip in drawing up the judgment; and where there is an error in expressing the court’s manifest intention: Chandler at p 860, citing Paper Machinery Ltd et al v JO Ross Engineering Corp et al, 1934 CanLII 1, [1934] S.C.R. 186 at p 188. These exceptions are reflected in Rule 397 of the Federal Courts Rules: Janssen at paras 35–36; Haynes v Canada (Attorney General), 2023 FCA 244 at para 6.
[62] Justice Kasirer also identifies exceptions where there is a statutory basis to reopen and where the matter has not been heard on its merits: CBC v Manitoba at para 33; Chandler at p 861. The former may arise more frequently for administrative tribunals, but may also be found, for example, in the express power to extend or abridge a time period previously fixed by a court order: Federal Courts Rules, Rule 8. The latter deals with situations where, for example, an appeal has been dismissed on procedural grounds; the court retains jurisdiction to reopen such an appeal to hear it on its merits: R v EFH, 1997 CanLII 418 (ON CA) at p 17 (pdf), citing R v Jacobs, 1970 CanLII 143, [1971] S.C.R. 92 at p 94.
[63] It is worth noting that nothing in the Supreme Court’s jurisprudence on the doctrine of functus officio indicates that it deprives a court of jurisdiction to hear a motion seeking relief that was previously denied if that motion does not require the reopening of a decision. To the contrary, the majority in Doucet-Boudreau underscored that “the
functus doctrine has no application where the trial judge does not purport to alter a final judgment”
: Doucet-Boudreau at para 76.
[64] On this point, the decision of this Court in Yelda Haber Ve Görsel Yayincilik AS v GLWiZ Inc, 2023 FC 778 may be read as reaching a contrary conclusion. The Associate Judge in that case was dealing with a second discovery motion, which sought to compel answers to questions that had already been the subject of an earlier ruling. Addressing the doctrines of functus officio and issue estoppel jointly, the Associate Judge correctly noted that the doctrine of functus officio prevents a court from revisiting, reconsidering, or altering its decisions once they have been rendered. He also correctly noted that the doctrine applies equally to orders of a case management judge as it does to orders of a judge: Yelda Haber at para 16. The Associate Judge then went on to consider the context of motions, noting that “[a]s a general principle, it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal”
: Yelda Haber at para 17.
[65] The cases cited by the Associate Judge in support of this latter statement pertain not to functus officio but to issue estoppel: Kendall v Sirard, 2007 ONCA 468 at para 43, citing Ward v Dana G Colson Management Ltd, [1994] OJ No 533, 24 CPC (3d) 211 (Gen Div) at pp 218–219, aff’d [1994] OJ No 2792 (CA). It therefore appears that the Associate Judge was referring to and applying the doctrine of issue estoppel rather than that of functus officio in dismissing the second discovery motion. This seems so because the Associate Judge went on to consider the circumstances in which issue estoppel may not apply: Yelda Haber at paras 19–20. However, to the extent that the Associate Judge intended to invoke or apply the doctrine of functus officio to find that the court is invariably without jurisdiction to address a second motion seeking the same relief, I cannot agree. This would unduly conflate the doctrines of issue estoppel and functus officio. While the two overlap, they are doctrinally distinct, both in their application and in their exceptions.
[66] As noted above, functus officio prevents the court from reopening or amending an order or judgment that it has made. A motion expressly seeking to reopen an earlier order will therefore raise functus officio issues, provided that the earlier order is one that triggers the doctrine: see Greenwood at para 45. In some circumstances, a second motion may inherently have the effect of amending a prior order even if it is not cast as an order seeking to reopen. The doctrine cannot be avoided simply by drafting a motion as one seeking a new order rather than reopening an old one, if the effect of the new order would necessarily be to rewrite, vary, or amend the old order.
[67] However, where a second motion neither seeks to reopen a prior decision nor inherently has that effect, there is no functus officio issue. To repeat the Supreme Court’s observation, “the
functus doctrine has no application where the trial judge does not purport to alter a final judgment”
: Doucet-Boudreau at para 76; Pirani v Esmail, 2014 ONCA 145 at paras 60–63. Where an initial interlocutory motion has simply been dismissed, for example, owing to evidentiary concerns, a subsequent order granting relief does not amend the earlier order dismissing the motion, either expressly or implicitly. The two orders can stand simultaneously. This is not to say that such a motion may not be barred by other doctrines, as discussed below. But the court is not without jurisdiction to consider the second motion.
[68] An illustrative example can be found in the Federal Court of Appeal’s recent decision in Canada v Easter, 2024 FCA 176. At issue in that case were appeals from the dismissal of two motions by the Crown for leave to amend a pleading. The first motion was dismissed on its merits. The second was dismissed as an abuse of process, since it sought the same relief as the first. The Court of Appeal dismissed appeals from each order. With respect to the second, the Court of Appeal undertook a review of the doctrine of abuse of process by relitigation, noting both the policy reasons behind it and the discretion held by the court to permit a second proceeding to continue: Easter at paras 44–47. It then considered in detail the Crown’s arguments in respect of the rejection of its second motion: Easter at paras 48–59. This entire discussion would have been entirely unnecessary if the Federal Court had in fact been functus officio and without jurisdiction to consider the second motion because it sought the same relief as the first. Indeed, it would be impossible for the Court to have a discretion to “conclude that justice would be better served by letting the second proceeding go forward”
if it had no jurisdiction to hear that second proceeding: Easter at para 47; see also Onwubiko v Canada (Citizenship and Immigration), 2025 FC 1314 at paras 10–27.
[69] The same is true of the Kendall case referred to above, cited in Yelda Haber. That case involved a second motion by the defence to have a plaintiff attend medical examinations and to adjourn a trial in consequence. The Ontario Court of Appeal applied the doctrine of issue estoppel to dismiss the second motion. Noting that a trial judge enjoys an overarching discretion to consider an adjournment motion, the Court of Appeal underscored that this discretion must be exercised in accordance with the law of issue estoppel: Kendall at paras 42–47. This discussion of issue estoppel would be unnecessary, and the reference to discretion would be entirely incorrect, if the Court had been functus officio and thus without any jurisdiction to consider the second motion. The same is true with respect to the numerous cases in the jurisprudence in which courts have applied or considered issue estoppel and/or abuse of process in either dismissing or permitting second requests for the same relief: Pfizer Canada Inc v Pharmascience Inc, 2009 FC 251 at paras 4–10; Merck Frosst Canada Inc v Canada (Minister of National Health and Welfare), 1997 CanLII 26703, 72 CPR (3d) 453 (FC) at pp 461–466; Imperatore v Fetesko, 2023 ONSC 1340 (Div Ct) at paras 1–4, 23–27, 37–39; British Columbia v Greengen Holdings Ltd, 2023 BCCA 24 at paras 12–19, 23–24; PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2022 ABCA 111 at paras 77–82, 90–93.
(2) The functus officio doctrine did not bar consideration of the second motion
(a) Procedural background to the Order under appeal
[70] The applicants were determined to be Convention refugees or persons in need of protection in 2017 and 2018, respectively. In 2020, the Minister of Public Safety and Emergency Preparedness made an application to vacate their refugee status pursuant to section 109 of the IRPA on the basis that information had come to light suggesting that the applicants had misrepresented their identities before the Refugee Protection Division [RPD]. An initial decision granting the application to vacate was set aside on judicial review by this Court and the matter remitted to the RPD: Barre v Canada (Citizenship and Immigration), 2022 FC 1078.
[71] On redetermination, the RPD again granted the application to vacate in a decision dated August 4, 2023, received by the applicants on August 19, 2023. That decision is the subject of this application for leave and judicial review, which was filed on September 5, 2023, by their former counsel, who had represented them before the RPD.
[72] By operation of Rule 10(1)(a) of the Federal Courts Immigration Rules, the applicants had to perfect their application for leave by serving and filing their application record within 30 days, i.e., on or before October 5, 2023. This did not occur, owing to failures on the part of the applicants’ former counsel discussed in greater detail below. Some five months after this deadline, on March 4, 2024, the applicants’ former counsel filed a written motion seeking an extension of time to perfect the application by filing the application record. The motion was supported only by affidavits from counsel, referring to illnesses and computer issues they had experienced between September 2023 and February 2024, and to the complexity of the matter.
[73] The written representations filed on the motion identified the Hennelly/Larkman factors, but the motion record did not include evidence from the applicants confirming their intention to pursue the application, or a copy of the memorandum of fact and law that was to be filed with the application record to show the merits of the case (the representations refer to the memorandum being filed the same day, but that memorandum was apparently not filed). Nor did the motion provide any evidence or submissions regarding prejudice to the Minister, other than referring to the Minister’s consent to an original extension of 30 days. The Minister opposed the motion.
[74] On April 18, 2024, the Associate Judge dismissed this first extension motion because the motion materials filed by former counsel (a) relied on affidavits from counsel without leave under Rule 82 of the Federal Courts Rules; (b) included no admissible evidence of the applicants’ continuing intention to pursue the application; (c) included no explanation of the merits of the application; (d) failed to establish the absence of prejudice to the Minister; and (e) failed to provide a reasonable explanation for the delay. Finding that the interests of justice were not established merely by “a request and bald statements,”
the Associate Judge dismissed the motion. In other words, the motion was dismissed for significant and material evidentiary failures.
[75] On April 29, 2024, the applicants’ former counsel brought a written motion for reconsideration of the April 18, 2024, under Rule 397 of the Federal Courts Rules. The Associate Judge dismissed that motion on November 20, 2024, finding that counsel’s failures did not constitute an “accidental omission”
with the meaning of Rule 397.
[76] The applicants’ new counsel filed a fresh motion for an extension of time on January 16, 2025. The second extension motion raised, among other things, allegations of incompetence against former counsel in missing the original date for perfection, failing to file the first extension request on a timely basis, and failing to submit a proper extension motion. The second motion also included affidavit evidence and argument addressing the Hennelly/Larkman factors relevant to an extension of time.
[77] The Minister opposed the second extension motion, referring to the dismissal of the first extension motion and arguing, on the basis of this Court’s decision in Alsaloussi, that the Court was functus officio. In reply, the applicants argued the Court was not functus officio, as they were not seeking to have the prior orders reconsidered, but seeking relief based on a different evidentiary and legal ground, namely the breach of natural justice due to the conduct of former counsel. The applicants noted that the Court was not functus officio in respect to the application for leave and judicial review, since it had not been dismissed for want of perfection.
[78] It is worth pointing out that although the parties did address the doctrine of functus officio in their motion materials filed before the Associate Judge, they provided only limited submissions on the doctrine. They did not raise or discuss, for example, any of the Supreme Court jurisprudence on the doctrine cited above.
(b) The Order under appeal
[79] The Order under appeal is a brief “speaking order”
in which the Associate Judge’s reasons for the Order appear as recitals or a preamble in the text of the Order. In the three relevant recitals, the Associate Judge (1) recognized that the relief sought of an extension of time was the same relief that was denied by the April 18, 2024, Order; (2) noted that the April 18, 2024, Order was not the subject of an appeal such that it is a final order; and (3) concluded that the Court was functus officio. The Court therefore denied the request for relief “as this Court is functus officio.”
The Associate Judge’s Order contains no discussion of the merits of the motion, such as the grounds raised for relief.
[80] It is clear from the foregoing that the Associate Judge concluded—on the limited submissions before him on the issue—that the doctrine of functus officio prevented the Court from considering the merits of a motion seeking the same relief previously denied in a final order. As set out above, I find this to be a conclusion of law to which the correctness standard applies. With respect, and having considered the parties’ more extensive submissions on the doctrine, I conclude the Associate Judge erred.
(c) The Court was not functus officio such that it could not consider the second motion
[81] The Court would be without jurisdiction to hear the applicants’ second extension motion if (a) the April 18, 2024, Order was a “final decision that is susceptible of appeal”
so as to trigger the application of the functus officio doctrine; and (b) the doctrine precluded a determination of the second extension motion on its merits since it sought the same relief.
[82] With respect to the former issue, the Associate Judge found that the April 18, 2024, Order was a final order for purposes of functus officio because it had not been appealed. As the Associate Judge would have been aware, no appeal was possible from the April 18, 2024, Order because of the appeal bar in the IRPA.
[83] For the reasons discussed above, the fact that no appeal was taken may not alone be enough to trigger the functus officio doctrine, both because an interlocutory decision that does not affect the substantive rights of the parties with respect to a matter bearing on the merits may not be a “final decision”
for purposes of the doctrine and because the decision was not susceptible of appeal given the appeal bar: CBC v Manitoba at paras 33, 39–41; Greenwood at paras 40, 45; Arif at paras 29–32. However, I need not address whether the April 18, 2024, Order was a “final decision that is susceptible of appeal”
for purposes of the functus officio doctrine, and/or whether a more flexible approach to the doctrine should be applied due to the appeal bar because, even if the doctrine was triggered, it did not preclude consideration of the second extension motion.
[84] As Ms. Barre points out, the second extension motion does not seek to amend, vary, or otherwise reopen the April 18, 2024, Order. Nor does the second extension motion inherently require an amendment of the first extension motion. Neither granting nor dismissing the second extension motion would inherently amend any aspect of the April 18, 2024, Order dismissing the first extension motion. Rather, the dismissal of the first extension motion would remain unchanged regardless of the outcome of the second motion. The fact that the relief sought in the second extension motion is the same as that sought in the first extension motion does not change this, as there is no inherent conflict or necessary reopening of the first order in making the second order.
[85] In other words, assuming the doctrine of functus officio applies to the April 18, 2024, Order, it would apply to prevent the Associate Judge from reopening that Order and changing its result, except in limited circumstances. This is effectively what the Associate Judge addressed on the reconsideration motion under Rule 397. However, I conclude that functus officio does not have the effect of depriving the Court of jurisdiction to consider the merits of a subsequent motion that seeks the same relief but does not seek, explicitly or implicitly, to reopen the original order.
[86] To immediately answer the concern that might arise from this conclusion, this does not mean that it is open season for parties to bring multiple motions seeking the same relief. As is clear from cases such as Easter, discussed above, such motions will usually be unsuccessful because functus officio is not the only doctrine protecting the important interest of finality in litigation: CBC v Manitoba at para 35. In particular, the doctrines of issue estoppel and abuse of process are available, and are frequently used and applied to prevent relitigation of interlocutory motions. I turn to those doctrines now.
D. The doctrine of issue estoppel applies to the applicants’ second extension motion, but should not prevent the motion from being decided on its merits
(1) Other finality doctrines
[87] As the Supreme Court of Canada has noted, “
functus
officio is only one of several legal principles designed to promote the goal of finality”
: CBC v Manitoba at para 35. Both branches of the doctrine of res judicata—cause of action estoppel and issue estoppel—are concerned with finality, as are abuse of process by relitigation and collateral attack: Toronto (City) v CUPE, Local 79, 2003 SCC 63 at paras 22–23, 33–38, 55; Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at paras 18–20, 33; Penner v Niagara (Regional Police Services Board), 2013 SCC 19 at paras 88–91; Angle at pp 267–268. These doctrines are interrelated, and in many cases more than one may support a particular outcome. However, they remain separate principles and are not always entirely interchangeable: Toronto v CUPE at para 22.
[88] In the present case, the Minister did not challenge the applicants’ second extension motion on any ground other than functus officio. In particular, the Minister did not contend, either before the Associate Judge or in response to Ms. Barre’s written appeal motion, that if the motion was not barred by functus officio, it was nonetheless barred by other doctrines. At the oral hearing of this motion, the Minister asserted that issue estoppel applied, but that the second extension motion did not amount to an abuse of process. Ms. Barre similarly argued that issue estoppel was the most relevant doctrine, although she contends that the doctrine should not apply to preclude her second extension motion given the circumstances that led to the dismissal of the first extension motion.
[89] Given my finding that the Associate Judge was not functus officio, and since the parties had the opportunity to address the question of issue estoppel, I will consider whether Ms. Barre’s second extension motion is precluded by that doctrine. No standard of review applies to this consideration, since the issue was not addressed by the Associate Judge. I need not address the doctrine of abuse of process by relitigation, as the Minister does not contend that the motion was an abuse of process, and as the discretionary factors related to that doctrine would in any event parallel those discussed below.
(2) Issue estoppel
(a) Principles
[90] Issue estoppel is a branch of the doctrine of res judicata. The Supreme Court of Canada has described issue estoppel as a doctrine that “balances judicial finality and economy and other considerations of fairness to the parties”
: Penner at para 29. That balancing arises through the application of a two-part test. The first part assesses whether the preconditions for the doctrine are present. If so, the second step is for the Court to assess whether, as a matter of discretion, issue estoppel ought to be applied or whether the usual operation of the doctrine would work an injustice: Danyluk at paras 1, 33, 62–64, 80; Penner at para 29.
[91] On the first part of the test, the three preconditions for operation of the doctrine remain those enunciated by the House of Lords in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2), [1967] 1 AC 853 at p 935, and reiterated by the Supreme Court of Canada in Angle at p 254 and in Danyluk at para 25:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[92] I note in this regard that there appear to be differing views in different jurisdictions as to whether issue estoppel applies at all to interlocutory matters. The Alberta Court of Appeal has found that “[d]octrines such as
res judicata, issue estoppel and merger do not apply
per se to interlocutory orders”
: PricewaterhouseCoopers at paras 88–91, citing Kent v Watts, 2019 ABCA 326 at para 23, Milne v Barnes, 2013 ABCA 379 at para 6, and Alberta v Pocklington Foods Inc, 1995 ABCA 111 at paras 7–8. Conversely, the Ontario Court of Appeal in Kendall confirmed that issue estoppel does apply to interlocutory motions: Kendall at paras 42–47. In this Court, the Federal Court of Appeal’s conclusion in Greenwood is clear that issue estoppel can apply to some interlocutory orders, if they meet the substantive issue test: Greenwood at paras 35–43, and in particular paras 39–40.
[93] With respect to the exercise of discretion at the second part of the test, in the context of court proceedings, the discretion is very limited in application: Danyluk at para 62. However, the discretion remains and requires the Court—as the most important factor—to “stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice”
: Danyluk at para 80; Oberlander v Canada (Attorney General), 2016 FCA 52 at paras 15–16. The circumstances that may lead to such a conclusion include a breach of natural justice in the underlying proceedings: Danyluk at para 75; Zhang v Canada (Citizenship and Immigration), 2019 FC 1468 at para 10.
(b) The Court should exercise its discretion not to apply issue estoppel
[94] With respect to the first part of the test for issue estoppel, the second extension motion raised the question of whether an extension of time to perfect the application should be granted, which was the same issue addressed in the first Order from April 18, 2024. Ms. Barre argues that the “same question”
was not decided because the first extension motion did not raise or decide the issue of counsel incompetence that was raised on the second extension motion. I cannot accept this contention, since counsel incompetence is raised in this context effectively as an argument in favour of granting an extension of time. Raising a new argument that could have been previously raised does not avoid the application of issue estoppel: Apotex at para 26; Currie v Ontario (Attorney General), 2017 ONCA 266 at para 16. I appreciate that former counsel could hardly have raised their own incompetence, but counsel’s incompetence is something that could have been raised on a first motion for an extension of time. That said, as discussed below, it is a relevant issue in the exercise of discretion.
[95] Subject to the discussion above regarding finality and the application of Greenwood, Apotex, and Figliola, I will assume for present purposes that the April 18, 2024, Order was a “final order”
for purposes of the issue estoppel doctrine. The Order clearly involved the same parties.
[96] However, I conclude this is a case in which the Court should exercise its discretion not to apply issue estoppel to preclude the second extension motion, since the usual operation of the doctrine would work an injustice. That injustice stems from the circumstances pertaining to the first motion and to the original failure to perfect the appeal, namely the incompetence of former counsel.
[97] As described above, this was not the applicants’ first judicial review, as an earlier judicial review of the RPD’s first vacation decision had been granted by this Court. Ms. Barre was therefore aware of the 30-day deadline for perfecting the application for leave and judicial review, which expired on October 5, 2023.
[98] The record shows that Ms. Barre sent numerous emails to her two former lawyers (who I will refer to collectively as her counsel), both in advance of the October 5 deadline and subsequently, seeking confirmation that the deadline would be/had been met and the application perfected. Counsel assured Ms. Barre that it would be but did not file the application record on time. Counsel for the Minister courteously consented to an extension in accordance with this Court’s Practice Direction and Order (amended May 25, 2023), which implemented a simplified process for extensions of time of up to 30 days to file an application record. Ms. Barre again sought confirmation on numerous occasions that the materials would be filed before the new deadline of Monday, November 6, but despite assurances from counsel, this did not occur.
[99] During the following four months, the record shows ongoing inquiries from Ms. Barre for confirmation of filing and status reports. Despite numerous confirmations and promises from counsel, the record was not filed. As noted above, former counsel ultimately filed a motion for an extension of time in early March 2024, which was opposed by the Minister, and resulted in the April 18, 2024, Order which was the basis of the Associate Judge’s later ruling on functus officio.
[100] This Court has held that a breach of procedural fairness or natural justice can arise in immigration proceedings where a party has been incompetently or ineffectively represented: Kandiah v Canada (Citizenship and Immigration), 2021 FC 1388 at paras 45–49 and the jurisprudence cited therein. The issue is not simply an error by counsel or poor representation, but the extraordinary circumstance of conduct that is so wanting that the failure to provide competent representation creates an unfairness. The Court applies a three-part test, requiring the applicant to establish that:
(i) the previous representative’s acts or omissions constituted incompetence or negligence;
(ii) but for the impugned conduct, there is a reasonable probability that the outcome would have been different (in other words, a miscarriage of justice has occurred as a result of the conduct); and
(iii) the representative had a reasonable opportunity to respond to an allegation of incompetence or negligence […]
[Citations omitted; Kandiah at para 48.]
[101] The incompetence must be sufficiently specific and clearly supported by the evidence: Memari v Canada (Citizenship and Immigration), 2010 FC 1196 at para 36, citing Shirwa v Canada (Minister of Employment and Immigration), 1993 CanLII 17477 (FC).
[102] In the present case, I have no hesitation in finding that this test is met. Indeed, the Minister did not argue otherwise. The ongoing and repeated failures of counsel to abide by the deadline to perfect the application for leave and judicial review, in the face of repeated follow-up and inquiry from Ms. Barre, followed by the remarkable delay before filing a motion for an extension of time, and further compounded by the inadequacies in that motion, amount to incompetence or negligence on the part of former counsel.
[103] There is no question that the outcome would have been different absent the incompetence. Evidently, if the original deadline for perfection, or even the extended deadline to which the Minister consented, had not been missed, then there would have been no need to even file the first extension motion. Further, if the first extension motion had been timely filed and competently presented, there is a reasonable probability that the decision on the first extension motion would have been different. The result, as Ms. Barre fairly contends, was a “cascading or ‘snowball’ effect to [her] prejudice”
: Bisht v Canada (Public Safety and Emergency Preparedness), 2022 FC 1178 at para 32.
[104] As for the notice requirement, the evidence shows that Ms. Barre provided notice of her allegations to former counsel on December 16, 2024, in accordance with this Court’s Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings dated June 24, 2022. Former counsel indicated on December 27, 2024, that a response would be sent, but no substantive response was received.
[105] Holding these multiple failures by the applicants’ former counsel against Ms. Barre by applying the doctrine of issue estoppel would work an injustice in the circumstances. While generally speaking, applicants will be held to the consequence of their choice of counsel, in extraordinary cases, such as this one, competency of counsel may give rise to a natural justice issue: Cove v Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at paras 5–8; Drummond v Canada (Minister of Citizenship and Immigration), 1996 CanLII 21995, 33 Imm LR (2d) 258 at para 4 (FCTD).
[106] Notably, this is not a case where the delay or the failure on the part of counsel to perfect the application or to file a timely and adequate extension motion can be in any way attributed to Ms. Barre or to her own lack of instructions or diligence: see Kiflom v Canada (Citizenship and Immigration), 2020 FC 205 at para 45. To the contrary, Ms. Barre frequently followed up with her counsel trying to obtain assurances that the matter would be attended to, and received frequent assurances that it would be. I am not prepared to simply ascribe counsel’s failings to Ms. Barre in such circumstances.
[107] Considering all the circumstances, this is an appropriate case to exercise the Court’s discretion not to apply issue estoppel to foreclose the second extension motion. As noted above, to the extent that the doctrine of abuse of process by relitigation were to apply, I would reach the same conclusion in the exercise of discretion: Toronto v CUPE at paras 37–43, 53.
[108] The Minister argues that having reached this conclusion, the Court ought to send the matter back to an associate judge for adjudication of the motion on its merits. I disagree, for three reasons. First, this is not an application for judicial review of the Associate Judge’s decision, but an appeal, in which the Court has the power to decide the issues that were put before the Associate Judge. Second, a motion for an extension of time is within the jurisdiction of a judge of this Court as well as an associate judge. Third, the underlying application for leave and judicial review has already been outstanding for a considerable period of time, and remitting the matter would be inefficient and simply cause further delay. I agree with Ms. Barre that returning the motion to an associate judge would serve no useful purpose.
E. The second extension motion should be granted on its merits
[109] The final question is therefore whether, on the merits, Ms. Barre has demonstrated that she should be granted an extension of time in which to perfect her application for leave and judicial review. Applying the Hennelly/Larkman factors discussed above, I conclude she has.
[110] The delay in question is not inconsiderable, as the second extension motion was filed on January 16, 2025, over 15 months after the original October 5, 2023, deadline to perfect the application, or over 14 months after the extended deadline on consent of the Minister. However, virtually all of this time is explained through the incompetence of former counsel described above. The first five months until March 3, 2024, are attributable to former counsel’s original failure to file an application record or a timely motion for an extension. The next eight and a half months until November 20, 2024, are attributable to former counsel’s inadequate first extension motion, their misguided motion for reconsideration under Rule 397 (filed on April 29, 2024), and the time required for a decision on the reconsideration motion. The time between November 20, 2024, and the January 16, 2025, filing of the second extension motion is explained on the record by the need to retain new counsel, the service of notice on former counsel, and the preparation of the motion.
[111] As the Federal Court of Appeal has noted, “[w]hile an error by counsel will not necessarily constitute a reasonable explanation for the delay, there is no doubt that it can be seen as one”
: Koch v Borgatti Estate, 2022 FCA 201 at para 56. For the reasons discussed above, I am satisfied that the incompetence of counsel that is not reasonably ascribed or attributed to Ms. Barre adequately explains the delay in these circumstances: see Muhammed v Canada (Minister of Citizenship and Immigration), 2003 FC 828 at paras 13–21.
[112] The evidence also clearly establishes Ms. Barre’s continuing intention to pursue the application for leave and judicial review, to the extent that she frequently sought confirmation from counsel that the matter was proceeding.
[113] With respect to the merit of the proceeding, an extension of time is not the occasion on which to undertake a full assessment of the merits. Rather, the Court will simply assess whether the application has “some potential merit”
or “sufficient merit to warrant the granting of an extension of time”
: Larkman at paras 61, 73, 75, 91. The evidence before me shows that the application for judicial review raises issues with respect to procedural fairness and the reasonableness of the decision that have sufficient merit to warrant an extension of time. As the matter remains at the leave stage and the Minister has not yet responded on the merits, I hasten to note that I make no conclusion as to whether the application raises a fairly arguable case.
[114] On the issue of prejudice, it can be somewhat difficult for an applicant to prove a negative. I accept Ms. Barre’s argument that the Minister has not been precluded or adversely affected in their ability to respond to the application for leave and judicial review. On the original motion, although not on this appeal, the Minister argued that having to respond to an extension motion is itself a form of prejudice: Kiflom at paras 47–51. While such “minor”
prejudice might have some bearing, it cannot weigh heavily against granting the motion, and certainly cannot itself be determinative or else any respondent would be able to demonstrate prejudice simply by opposing an extension motion: Kiflom at paras 50–51; Bernard c Conseil des Abénaquis de Wôlinak, 2025 CanLII 104253 (CF) at paras 4, 6. Further, the Minister’s response to the second extension motion was founded entirely on the doctrine of functus officio, which I have found is misplaced. I conclude that there would be no material prejudice to the Minister that would weigh against granting the requested extension, despite its length.
[115] Overall, the interests of justice favour granting the extension. Otherwise, Ms. Barre would be denied the opportunity to present arguments that have some merit to challenge the vacation of the applicants’ refugee status as a result of serious failures on the part of former counsel, which failures occurred despite Ms. Barre’s ongoing and active steps to ensure that the application was pursued on a timely basis.
[116] Making the order I conclude that the Associate Judge should have made, I will grant Ms. Barre an extension of time to perfect her application by filing her application record, to a date 15 days from the date of this Order.
IV. Conclusion
[117] For the above reasons, I conclude the Associate Judge erred in declining jurisdiction over the applicants’ second extension motion on the basis that the Court was functus officio.
[118] However, this does not mean that parties can simply file repetitive motions seeking the same relief, or that they can file inadequate motion records knowing that they will always have the chance of a second “bite at the cherry”
: Danyluk at para 18. Such repeated motions will usually be barred by other doctrines aimed at litigation finality. To quote a recent decision of the Ontario Law Society Tribunal Hearing Division, which in my view admirably expresses the situation and applies equally to the Court, “the fact that the [Court] has ongoing jurisdiction and is not
functus does not mean parties can require the [Court] to revisit its rulings on interlocutory matters such as motions, or to grant the same relief that it previously denied”
: Law Society of Ontario v Mazo, 2024 ONLSTH 53 at para 17.
[119] Nonetheless, these other doctrines, and in particular that of issue estoppel, balance the importance of litigation finality with other interests of justice, and incorporate some flexibility in their application. In the present case, I conclude that the interests of justice are such that the Court should not decline to consider a second motion for an extension of time. On the merits of that motion, the extension should be granted.
[120] Finally, as a housekeeping matter, the applicants’ original application for leave and judicial review named only the Minister of Citizenship and Immigration as respondent. The applicants’ March 4, 2024, motion requests amendment to the style of cause to add the Minister of Public Safety and Emergency Preparedness, as the appropriate respondent on an application for leave and judicial review of a vacation application: see Omar v Canada (Public Safety and Emergency Preparedness), 2023 FC 1334 at paras 11–14. The Minister did not oppose this request in responding to the motion. The Associate Judge’s Order of April 18, 2024, refers to this aspect of the applicants’ motion, and he appears to have intended to grant the amendment, since his Order of April 18, 2024, as well as those of November 20, 2024, and February 20, 2025, include both Ministers as respondents. However, the amendment to the style of cause is not reflected in the operative part of the April 18, 2024, Order or in any subsequent order. The Minister’s written submissions on this motion identify only the Minister of Citizenship and Immigration as a respondent, and references in this decision to the Minister are therefore to the Minister of Citizenship and Immigration. To avoid any potential future uncertainty, I will order that the style of cause in this matter be amended to identify both the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness as respondents.
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