Varela v. Canada

Varela v. Canada (Minister of Citizenship and Immigration), [2010] 1 FCR 129, 2009 FCA 145 (CanLII)

• This case deals with the appropriateness of questions certified by the FC applications judge
• This is an appeal from a negative JR in which the FC affirmed the Immigration Division’s decision that the claimant was inadmissible for human and international rights violations pursuant to s. 35(1)(a) of the Act
• However, Harrington J certified 5 questions for appeal after circulating draft reasons to counsel and requesting proposals on certified questions
• FCA dismisses the appeal here on the basis that the certified questions were inappropriate as they were not dispositive of the appeal; indeed, the judge chose not to deal with the questions in his reasons because they didn’t affect his finding that the inadmissibility finding should not be disturbed.
• From headnote:

Although the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration) that once a question has been certified, all issues raised by the appeal may be considered by the Court, it is a mistake to reason that any question that could be raised on appeal may be certified. The statutory requirement remains as stated in paragraph 74(d) of the Act. The absence of a serious question of general importance in the case at bar meant that the pre-condition to the right of appeal was not met, and therefore the appeal had to be dismissed.