Learning moments – When is it appropriate to certify a question at the Federal Court of Appeal

I am currently in the process of a judicial review of a decision at the Federal Court. I was wondering when it is appropriate for a Federal Court judge to certify a question to the Federal Court of Appeal? Is there any relevant case law or test for certifying a question?

This week’s question deals with what a Federal Court judge must consider when certifying a question to the Federal Court of Appeal. Further the following case law will also identify what the Federal Court of Appeal must address when they assess an appeal from a certified question.

Section 74(d) of the Immigration and Refugee Protection Act and s. 22.2(d) of the Citizenship Act provide that an appeal to the Federal Court of Appeal may only be made if a Federal Court judge, when rendering judgement, the judge certifies that a serious question of general importance is involved and states the question.

As Justice Fothergill states in the case of Shamsi v. Canada (Citizenship and Immigration), 2016 FC 196

[5]  Pursuant to Rule 18(1)[1], parties must be provided with an opportunity to propose a question for certification “before a judge renders judgment.” The general rule is that questions cannot be certified for appeal after a judgment is pronounced in writing (Brar v Canada (Minister of Citizenship and Immigration), (1997) 1997 CanLII 5868 (FC), 139 FTR 79 at para 4, 76 ACWS (3d) 399 (FC)). A serious question of general importance must arise from the issues in the case and not from the judge’s reasons (Zhang v Canada (Minister of Citizenship and Immigration), 2013 FCA 168 at para 9). As the Federal Court of Appeal has observed, a judge who has heard a case should be in a position to identify whether a serious question of general importance arises without circulating draft reasons to counsel (Valera v Canada (Minister of Citizenship and Immigration), 2009 FCA 145 at para 29).

In the case of Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145 (CanLII), [2010] 1 FCR 129, Noël, Nadon and Pelletier JJ.A., laid out the conditions for certifying a question in the Federal Court of Appeal at paras. 28-29:

[28] In the same way, it is worth noting that section 74 speaks of “a” serious question of general importance, not of “one or more” serious questions of general importance. While I would not preclude the possibility that a single case might raise more than one question of general importance, this would be the exception rather than the rule. A serious question is one that is dispositive of the appeal: see Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 318 N.R. 365 (Zazai), and the cases cited therein at paragraph 11. There are a limited number of such questions in any appeal.

[29] Additionally, a serious question of general importance arises from the issues in the case and not from the judge’s reasons. The judge, who has heard the case and has had the benefit of the best arguments of counsel on behalf of both parties, should be in a position to identify whether such a question arises on the facts of the case, without circulating draft reasons to counsel. Such a practice lends itself, as it did in this case, to a “laundry list” of questions, which may or may not meet the statutory test. In this case, none of them did.

Justice Snider in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2009 FC 1213 reaffirms the criteria for certifying a question as laid out by Pelletier J.A. in Valera:

[37] In general, decisions of the Federal Court in matters arising under IRPA are final. However, pursuant to s. 74(d) of IRPA, an appeal to the Court of Appeal may be made “only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question”. In the recent decision of Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, 80 Imm. L.R. (3d) 1, [2009] F.C.J. No. 549 (QL), the Court of Appeal emphasized that any question certified must meet certain criteria:

Further to the criteria set out in Valera, Dawson, Gauthier and Trudel JJ.A., held in Zhang v. Canada (Citizenship and Immigration), 2013 FCA 168:

[9] It is trite law that to be certified, a question must (i) be dispositive of the appeal and (ii) transcend the interests of the immediate parties to the litigation, as well as contemplate issues of broad significance or general importance. As a corollary, the question must also have been raised and dealt with by the court below and it must arise from the case, not from the Judge’s reasons (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, 176 N.R. 4, 51 A.C.W.S. (3d) 910 (F.C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368 (C.A.) at paragraphs 11-12; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at paragraphs 28, 29 and 32).

[10] In Varela, this Court stated that it is a mistake to reason that because all issues on appeal may be considered once a question is certified, therefore any question that could be raised on appeal may be certified. The statutory requirement set out in paragraph 74(d) of the Act is a precondition to the right of appeal. If a question does not meet the test for certification, so that the necessary precondition is not met, the appeal must be dismissed.

In Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89, Pelletier J.A. and concurred by Rothstein J.A., Malone J.A., reaffirmed the decisions of the Supreme Court of Canada in Pushpanathan and Baker on the issue of certifying questions, while also establishing the threshold for the Court of Appeal to certify a question:

[10] In Pushpanathan v. Canada (Minister of Citizenship and Immigration) 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, the Supreme Court held that the fact of a certified question did not prevent it from examining a fundamental question which had not been certified, namely the appropriate standard of review. In Baker v. Canada (Minister of Citizenship and Immigration) 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court held that:

[12] …The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a “question of general importance” has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here.

[11]  Notwithstanding these decisions, the threshold for certifying a question remains the same. Is there a serious question of general importance which would be dispositive of an appeal? That principle is well established in the jurisprudence of the Federal Court itself. See Bath v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1207 (Reed J.) at para. 15; Di Biance v. Canada (Minister of Citizenship and Immigration) 2002 FCT 935 (CanLII), [2002] F.C.J. No. 1220 (Blanchard J.) at para. 22; Gallardo v. Canada (Minister of Citizenship and Immigration) 2003 FCT 260 (CanLII), [2003] F.C.J. No. 352 (Kelen J.) at para. 35.

[12] The corollary of the fact that a question must be dispositive of the appeal is that it must be a question which has been raised and dealt with in the decision below. Otherwise, the certified question is nothing more than a reference of a question to the Court of Appeal. If a question arises on the facts of a case before an applications judge, it is the judge’s duty to deal with it. If it does not arise, or if the judge decides that it need not be dealt with, it is not an appropriate question for certification.

[1] Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22