Canada v. Forde

Canada (Immigration and Citizenship) v. Forde, 1997 CanLII 12083 (FCA),

At issue were versions of the following provisions:

The current 72(2)(e) IRPA (no appeal lies of FC interlocutory judgments, such as stays of removal)

The current 74(d) IRPA – no appeal lies of FC judgment without certified question of general importance

18.2 of the Federal Courts Act: On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.

50(1)(b) of Federal Courts Act : The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter

(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or

(b) where for any other reason it is in the interest of justice that the proceedings be stayed.

Forde launched a JR challenging the Minister’s danger opinion

The deportation order was stayed pending outcome of the JR of the danger opinion

This JR of the danger opinion was eventually dismissed, and removal again became enforceable

In the meantime, another litigant had gone to the Federal Court and challenged Parliament’s IAD appeal bar for people subject to a danger opinion

The FC judge decided to prolong Forde’s stay pending the outcome of the constitutional challenge

The FCA here in Forde permitted the Minister’s appeal of the stay despite the fact that no appeal lies of FC interlocutory judgments in immigration matters, and that no question was certified (this was contained in provisions now equivalent to s. 74(d) IRPA and s. 72(2)(e) IRPA)

FCA decides FC judge acted without jurisdiction

FCA decided 18.2 Federal Courts Act and 50(1)(b) Federal Courts Act do not authorize the FC to grant stays of this natures – stay may only last until the time that the underlying JR application is finally disposed of; in other words, the stay must be ancillary to an ongoing underlying proceeding

From Forde:

There was thus no longer a leave or review proceeding to which the stay could be ancillary undersection 18.2 of the Federal Court Act. The rationale for its grant was apparently that, although there were no new decisions to be awaited in Forde’s case, something might turn up in his favour if the Federal Court of Appeal were to find, in the Williams case, that the power conferred on the Minister to make orders against someone else under subsection 70(5) is unconstitutional. Paragraph 50(1) of the Federal Court Act, invoked by Forde here, was never in our view intended to give a general mandate to the Trial Division to stop deportations which are no longer under attack in the Court, directly or indirectly, just because some day there might be jurisprudence more favourable to a deportee

Forde as cited by other case-law:

Canada (Citizenship and Immigration) v. Aziz, 2011 FCA 18 (CanLII)

“The Minister argues that in this case no certified question is required. He relies on a number of immigration cases in which this Court has permitted an appeal to proceed despite the absence of a certified question. For example, in Forde v. Canada (Minister of Citizenship & Immigration) (1997), 210 N.R. 194 (Fed. C.A.), the Court entertained an appeal from a Federal Court order staying a deportation pending the disposition of another immigration case. The Court concluded that no certified question was required because issue was whether the stay order was within the jurisdiction of the Federal Court under paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7.

In D’Souza v. Canada (Public Safety and Emergency Preparedness) :

[40] In my view, counsel for the respondent expresses the correct view of the law. As clearly stated by Justice Strayer, on behalf of the Federal Court of Appeal in Forde, above, in order for a stay to be granted in immigration matters, there must be a leave or judicial review proceeding to which the stay is ancillary. Neither section 18.2 nor section 50(1)(b) of the Act allow the Court to stop deportations which are no longer under attack, directly or indirectly.

In Canada (Minister of Citizenship and Immigration) v. Lazareva 2005 FCA 181 (CanLII)

In Forde v. Canada (Minister of Citizenship & Immigration) (1997), 210 N.R. 194 (Fed. C.A.), this Court permitted the Minister to appeal an order granting an interim stay of a removal order, where the stay order was made after the final disposition of the application for judicial review.