Sellathurai v. Canada (Public Safety and Emergency Preparedness)

Sellathurai v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court of Appeal Decisions
Date
2011-07-11
Neutral citation
2011 FCA 223
File numbers
A-431-10
Notes
Reported Decision
Decision Content
Date: 20110711
Docket: A-431-10
Citation: 2011 FCA 223
CORAM: LÉTOURNEAU J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
CHANTHIRAKUMAR SELLATHURAI
Appellant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
Heard at Toronto, Ontario, on June 9, 2011.
Judgment delivered at Ottawa, Ontario, on July 11, 2011.
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
STRATAS J.A.
Date: 20110711
Docket: A-431-10
Citation: 2011 FCA 223
CORAM: LÉTOURNEAU J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
CHANTHIRAKUMAR SELLATHURAI
Appellant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] In the course of processing Mr. Sellathurai’s claim for ministerial relief under subsection 34(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), the Minister of Public Safety and Emergency Preparedness (Minister) inadvertently disclosed documents to Mr. Sellathurai’s counsel that the Minister viewed to be subject to national security privilege. After asking that the documents be returned, the Minister sought and obtained an order from the Federal Court requiring Mr. Sellathurai’s counsel to return the documents to the Minister. The central issue in this appeal is whether the Federal Court possessed the jurisdiction to make such an order. Other issues to be decided on this appeal include whether, in the absence of a certified question, this Court has jurisdiction to hear the appeal and whether the Federal Court erred by failing to appoint an amicus curiae or by failing to consider whether the principles of procedural fairness required that some remedy be afforded to Mr. Sellathurai. A complete list of the issues to be decided appears at paragraph 13 below.
Background Facts
[2] To appreciate the issues before the Court it is necessary to understand the protracted facts that led to the making of the order under appeal. The facts may be summarized as follows:
1. In 1997, a report issued under section 27 of the Immigration Act, R.S.C. 1985, c. I-2 (former Act) alleged that Mr. Sellathurai was a member of the inadmissible class of persons described in clause 19(1)(f)(iii)(B) of the former Act. Specifically, the report alleged Mr. Sellathurai to be a person who there are reasonable grounds to believe is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. The organization referred to in the report was the Liberation Tigers of Tamil Eelam (LTTE).
2. Later, Mr. Sellathurai received a direction to report for an admissibility inquiry before the Immigration Division of the Immigration and Refugee Board (Immigration Division). The inquiry began on March 19, 1999.
3. The hearing before the Immigration Division into Mr. Sellathurai’s alleged inadmissibility was split into two parts. The first part of the inquiry was completed on September 26, 2001. At that time a member of the Immigration Division concluded that there were reasonable grounds to believe that Mr. Sellathurai was a member of the LTTE. Whether the LTTE was a terrorist organization was an issue left to be determined at the second stage of the inquiry.
4. On August 20, 2002, Mr. Sellathurai applied under subsection 34(2) of the Act for an exemption from a finding that he was inadmissible on security grounds as a result of being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. Subsection 34(2) of the Act provides, among other things, that membership in a terrorist organization does not constitute inadmissibility where an affected person satisfies the Minister that his or her presence in Canada would not be detrimental to the national interest.
5. As a result of Mr. Sellathurai’s application under subsection 34(2) of the Act, the Canada Border Services Agency (CBSA) prepared a brief for the Minister. The brief recommended that Mr. Sellathurai’s request for ministerial relief be denied. In February 2006, Mr. Sellathurai was provided with a copy of the brief and given the opportunity to respond to it. Later, further submissions were invited from Mr. Sellathurai in 2007 and in 2008.
6. Prior to the events relevant to this appeal, no decision had been made with respect to Mr. Sellathurai’s request for ministerial relief.
7. After the member of the Immigration Division determined that there were reasonable grounds to believe that Mr. Sellathurai was a member of the LTTE, the inquiry was to continue before the Immigration Division. However, from September 26, 2001 until October 21, 2008 the admissibility hearing was adjourned from time to time in order to allow the Minister to make a decision on the request for ministerial relief.
8. On December 29, 2008, the Immigration Division refused Mr. Sellathurai’s request for a further adjournment.
9. Mr. Sellathurai then filed in the Federal Court, in court file IMM-152-09, an application for leave and judicial review of the decision of the Immigration Division refusing a further adjournment. He also sought an order staying the admissibility hearing. The Federal Court granted the stay. Subsequently leave was granted by the Federal Court, and the hearing of the application for judicial review was scheduled for February 23, 2010.
10. On February 26, 2010, Justice Hughes of the Federal Court directed that the application for judicial review be adjourned sine die. Counsel were to provide updates to the Court as to the status of the request for ministerial relief.
11. On August 12, 2010, counsel for Mr. Sellathurai provided the following report to the Court:
Re: Sellathurai v. MCI, Court File: IMM-152-09
As your records will show I am the solicitor for the Applicant. This judicial review application is presently in abeyance while the parties try to resolve matters. Mr. Todd, counsel for the Minister has been advising Justice Hughes of the status of the case from time to time.
I undertook to update the Court this time. Mr. Sellathurai has received a new package of materials from the CBSA and was asked to reply by August 15, 2010. I requested an extension to the end of August because I was away for some time and with other matters, it would not have been possible for me to meet this deadline. The extension was granted and it was our expectation that the case would go before the Minister for a decision shortly after submissions were filed.
A new issue has just arisen. The CBSA has requested that its package of materials disclosed to me and Mr. Sellathurai be returned because there is apparently classified material that has been inadvertently disclosed. The CBSA has advised that Mr. Sellathurai will be given a month from receipt of the redacted materials to reply so that it would actually be later than the end of August when the reply would come due.
We are in the process of addressing the CBSA request, as it is not apparent that any classified material has in fact been disclosed.
The matter is moving along so I would suggest that either I or Mr. Todd report back to the Court by the end of September either to advise that the matter is now resolved or at least to update the Court on the status of its resolution.
Please advise if there are problems with this.
Thank you for your attention.
[emphasis added]
12. On August 16, 2010, the CBSA wrote to Mr. Sellathurai’s counsel advising that:
This is in response to your letter dated August 12, 2010. A review of the file has revealed three documents which contain information that should not have been disclosed:
1- Canadian Security Intelligence Service (CSIS) letter dated January 26, 1995. This document is six pages long, has the CSIS letterhead, and is marked “Secret”. It is Appendix 9 in the package.
2- Canadian Security Intelligence Service (CSIS) letter dated November 9, 1995. This document is five pages long, has the CSIS letterhead, and is marked “Secret”. It is in Appendix 18 of the package.
3- Canadian Security Intelligence Service (CSIS) letter dated December 10, 2007. This document is two pages long, is marked “Secret”, and is signed by a CSIS employee. It is in Appendix 18 of the package.
We request that you seal and return the above-noted documents, along with any copies that were made, to our attention at your earliest convenience. We assert that these documents carry national security privilege, and must be protected.
We thank you for your cooperation in this matter.
[emphasis added]
13. On August 19, 2010, counsel for Mr. Sellathurai responded:
Thank you for your letter of August 16, 2010. I have specifically pulled the referenced reports and sealed them. I have the only copy as no others were made or given to anyone else. I would appreciate it if you would send the redacted version which you intend to rely on publicly so that we may determine if the matter can be settled amicably or if having the court review it would be more appropriate. We cannot continue with Mr. Sellathurai’s submissions until this is settled because of the concern about not raising with him any of the relevant issues arising from the referenced reports. I am not sure if parts of these reports are to be sealed, how we will deal with the fact that he and others already have some knowledge of the concerns raised in the documents because we were already well underway in preparing reply submissions. Please note I am away next week. Thank you. Please advise. [emphasis added]
14. On September 2, 2010, Justice Hughes issued the following direction:
THIS COURT HEREBY DIRECTS that:
1. [Counsel for Mr. Sellathurai] shall place the documents in question in a sealed envelope and file it with the Court number and style of cause clearly marked together with a caption to the effect that it is not to be opened until further Order or Direction of the Court. This shall be done on or before September 8, 2010;
2. The Department of Justice shall, on or before September 8, 2010 furnish to [counsel for Mr. Sellathurai] and file with the Court copies of said documents redacted so as to remove or obscure the contentious material;
3. On or about September 8, 2010, the Department of Justice shall file a Motion to be heard at a date to be fixed by the Office of the Chief Justice, to be heard by a designated Judge, if required as to the further manner in which said documents are to be dealt.
15. The three documents provided to Mr. Sellathurai’s counsel were filed with the Court and redacted versions of the documents were provided to Mr. Sellathurai’s counsel. The Minister filed a notice of motion in court file IMM-152-09. The motion was brought in writing under Rule 369 of the Federal Courts Rules, SOR/98-106 and was supported by two affidavits filed and served on counsel for Mr. Sellathurai as well as a confidential affidavit filed with the Court on an ex parte basis that was described as “justifying the national security privilege claim.” The relief sought in the notice of motion was as follows:
THIS MOTION IS FOR injunctive relief in the context of inadvertent disclosure of documents to which national security privilege is claimed. The Respondent seeks the assistance of this Honourable Court to resolve an issue involving inadvertent disclosure by a Federal tribunal (the Respondent Minister) of certain documents to which the Respondent claims are subject to national security privilege.
The Respondent requests that a designated Judge of this Court sanction the direction of the Honourable Justice Hughes that the documents in question are to be sealed and filed with this Court by [counsel for Mr. Sellathurai] by September 8, 2010 by reviewing the redacted and unredacted versions of the documents. The Respondent requests an order upholding the Respondent’s national security privilege claim.
The Respondent seeks an order, as necessary or required, ensuring that the Applicant seal and return to the Respondent any other paper copy of the national security privilege documents in question and destroy any electronic copy of the documents that may exist in the control and possession of the Applicant and [his counsel]. The Respondent additionally seeks an order that the Applicant and [his counsel] destroy any notes relating to the national security privilege documents in question to ensure that no further violation of the national security privilege occurs.
The Respondent requests such other relief as this Honourable Court sees fit. [emphasis added]
16. While the Minister’s motion was initially brought in writing under Rule 369, an oral hearing was held on October 20, 2010. On November 3, 2010, a Judge of the Federal Court (Judge) issued an order and reasons in support of the order. The reasons are cited as 2010 FC 1082, 375 F.T.R. 181. The order provided:
THE COURT ORDERS, DECLARES AND DIRECTS that:
1. the Order of Justice Hughes, dated September 2, 2010, is confirmed;
2. the national security claim of privilege over those portions of the Disputed Documents, as asserted by the Minister, is upheld;
3. to the extent that any of the following steps have not been taken, the Court orders that:
• the Applicant seal and return to the Minister, through his counsel, any paper copy of the unredacted Disputed Documents;
• the Applicant destroy any electronic copy of the unredacted Disputed Documents in the control or possession of the Applicant or his counsel; and
• the Applicant and his counsel destroy any notes in their possession or control relating to the redacted portions of the Disputed Documents.
4. The unredacted Disputed Documents, that currently are in a sealed envelope filed with the Court and that form part of this Court File, are to be returned by the Registry to the Minister’s counsel; and
5. no question of general importance is certified.
Mr. Sellathurai now appeals from this order.
The Decision of the Federal Court
[3] The Judge framed the issues before her as follows:
1. Does the Federal Court have jurisdiction to determine this motion and grant the relief sought by the Minister pursuant to section 87 of the Act?
2. Should the Minister’s motion to recall the disputed documents succeed?
(a) Are these documents the subject of national security privilege?
(b) Did the Minister waive national security privilege on the disputed documents?
(c) Is national security privilege an exception to the “open court principle”?
3. Should the Court designate a special advocate, pursuant to section 87.1 of the Act, to advance the interests of the Applicant?
[4] After reviewing the relevant facts, the Judge began consideration of the first issue: did the Federal Court have jurisdiction to determine the motion pursuant to section 87 of the Act? In her view, neither party disputed the Federal Court’s jurisdiction to hear the motion, so the real issue was whether it should be heard under section 87 of the Act or section 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (Evidence Act).
[5] The Judge recognized the importance of preventing the disclosure of sensitive materials and also recognized the Crown’s interest in recalling sensitive documents that were accidentally released. The question was how accidental disclosure of such documents should be dealt with in the circumstances of this case.
[6] The Judge disagreed with Mr. Sellathurai’s submission that the Federal Court was required to deal with the issue under section 38 of the Evidence Act. Where another statute provided a legislative scheme for dealing with secret documents in the context of a particular type of proceedings, that scheme took precedence. The Act provided such a scheme in the present case. If section 38 of the Evidence Act remained applicable, section 87 of the Act would be redundant. Therefore, the Judge concluded that section 87 of the Act was applicable to this case, not section 38 of the Evidence Act.
[7] The Judge then moved to consideration of section 87 of the Act. She rejected Mr. Sellathurai’s argument that the Minister’s motion did not form part of existing judicial review proceedings as required by the language of the provision. She reasoned, at paragraph 27, as follows:
[Mr. Sellathurai’s] own action, in seeking a stay of the [Immigration Division’s] hearing and an adjournment of the judicial review, has inextricably linked the Ministerial Relief Application and the judicial review of the [Immigration Division’s] interlocutory decision. As a result, there is little question in my mind that documents disclosed in the context of the Ministerial Relief Application would have relevance to the judicial review application when, and if, it is heard. It follows that, although the Disputed Documents were disclosed pursuant to the Ministerial Relief Application, this disclosure forms part of the substance of the judicial review motion that currently stands adjourned sine die.
[8] She also reasoned that even if the disputed documents did not fall within the adjourned judicial review the result would be the same, because the documents had been disclosed pursuant to a matter within the Act, that is, the subsection 34(2) application for ministerial relief. From there, Rule 4 of the Federal Court Rules would “bridge the gap,” and allow the Court to adopt, by analogy, the section 87 procedure. “In summary, I find that the Federal Court has jurisdiction to consider this motion either directly or by analogy pursuant to s. 87 of IRPA.”
[9] The Judge then turned to consider the next issue: should the Court allow the Minister’s motion for the return of the documents? After a review of the documents and the confidential affidavit, she concluded that the information contained in the original disclosure but redacted in the documents later provided pursuant to Justice Hughes’ direction was subject to national security privilege. She also concluded that the disclosure did not constitute waiver of the privilege, since the disclosure had been accidental. The mistaken disclosure had not reduced the national interest in preventing dissemination of the information.
[10] The Judge then considered the final issue: should the Court appoint a special advocate to advance Mr. Sellathurai’s interests? The Judge applied the factors previously applied to applications for the appointment of a special advocate made in the course of an application under section 87 of the Act as articulated in Kanyamibwa v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 66, 360 F.T.R. 173 at paragraphs 43 to 56. While section 87.1 of the Act would allow the Court to appoint a special advocate, the Judge decided against this, for several reasons:
• She had already concluded that disclosure of the documents would be injurious to national security;
• A judicial review of a denial of ministerial relief under subsection 34(2) differs from a judicial determination concerning the reasonableness of a security certificate and a judicial review of the detention of a person subject to a security certificate;
• The Minister had not yet determined whether to grant relief to Mr. Sellathurai, the information was minimal and it was uncertain whether the Minister would rely on the information he sought to protect; and
• Mr. Sellathurai was not facing imminent removal, and was not being detained.
[11] Finally, at paragraphs 54 to 56 the Judge gave brief consideration to whether she should certify a question. Mr. Sellathurai’s counsel had made her submissions on this issue three days after the deadline set by the Judge, and concluded her submissions with “[s]o at this point there are no issues for which certification is being sought.” The Judge found the Minister’s submissions to be vague. In the end, the Judge decided not to certify a question, “[g]iven the unique circumstances that arise on this motion.”
[12] As set out above, the Judge ordered that Mr. Sellathurai seal and return any paper copy of the unredacted documents, destroy any electronic copy in his control or possession (or the control or possession of his counsel), and destroy any notes relating to the redacted portions of the documents. The copies of the documents in the Court’s possession were to be returned to the Minister’s counsel.
The Issues
[13] In my view, the issues to be decided on this appeal are:
1. Does this Court have jurisdiction to hear this appeal?
2. What is the standard of review to be applied to the remaining issues?
3. Did the Judge err by concluding that the Federal Court had jurisdiction to consider the motion either directly or by analogy under section 87 of the Act?
4. If the Federal Court erred by applying section 87 of the Act, what was the proper procedure to follow?
5. Did the Federal Court err in concluding that the inadvertently disclosed documents could be returned to the Minister?
6. Did the Federal Court err in law by applying the jurisprudence relevant to the appointment of a special advocate under sections 87 and 87.1 of the Act, or by failing to consider whether it was procedurally fair to limit Mr. Sellathurai to responding to the redacted version of the documents when making submissions to the Court and the Minister?
Consideration of the Issues
1. Does this Court have jurisdiction to hear this appeal?
[14] The respondent submits that the Judge correctly determined that the Federal Court possessed jurisdiction under the Act to order the return of the inadvertently disclosed documents. It follows, the respondent says, that because the Judge did not certify a question this appeal should be quashed on the ground this Court lacks jurisdiction to hear the appeal. In the alternative, the respondent says that if this Court finds that the Judge possessed the jurisdiction to protect the disclosed documents in the manner she did, in the absence of the certified question this Court lacks jurisdiction to consider “any ancillary issues raised by the Appellant regarding how the Applications Judge exercised her jurisdiction” (paragraph 31, respondent’s factum).
[15] It is uncontroversial that, as a matter of general principle, the Act prohibits appeals from interlocutory decisions of the Federal Court (paragraph 72(2)(e) of the Act). The Act also prohibits appeals from final decisions of the Federal Court, unless in rendering judgment a judge of the Federal Court certifies that a serious question of general importance is involved and states that question (paragraph 74(d) of the Act). That said, the jurisprudence of this Court is well-settled that these preclusive clauses are not to be interpreted literally. This Court can hear an appeal where it is alleged that the Federal Court judge committed a jurisdictional error: Horne v. Canada (Minister of Citizenship and Immigration), 2010 FCA 337, 414 N.R. 97 at paragraph 4, citing Subhaschandran v. Canada (Solicitor General), 2005 FCA 27, [2005] 3 F.C.R. 255 at paragraph 17 and Narvey v. Canada (Minister of Citizenship and Immigration), (1999) 235 N.R. 305 (F.C.A.).
[16] In my view, this appeal does raise a jurisdictional question. There is real uncertainty about whether the Federal Court had jurisdiction to deal with the inadvertent disclosure of documents in the course of events leading to a decision under subsection 34(2) of the Act. Central to this appeal is whether the Act, the Evidence Act or neither gave jurisdiction to the Federal Court to deal with the Minister’s inadvertent disclosure. Until it is decided whether the Federal Court possessed the jurisdiction to deal with this matter, its jurisdiction has not been established and this appeal should proceed.
2. What is the standard of review to be applied to the remaining issues?
[17] This is not an appeal from an application for judicial review. Therefore, the standard of review is that set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Questions of law must be determined on a correctness standard. Questions of fact or mixed fact and law are reviewed on the standard of palpable and overriding error.
[18] Issues 3, 4 and 6, listed at paragraph 13 above, raise questions of law and so the Judge’s decision on these issues is reviewable on the standard of correctness. Issue 5 required the Judge to make findings of mixed fact and law. Ultimately, however, the Judge granted injunctive relief by ordering that the three documents be returned to the Minister. Injunctive relief is discretionary. A discretionary order made by a Judge will not be interfered with on appeal unless:
[…] the appellate court clearly determines that the lower court judge has given insufficient weight to relevant factors or proceeded on a wrong principle of law: Elders Grain Co. v. Ralph Misener (The), [2005] F.C.J. No. 612, 2005 FCA 139 at paragraph 13. This Court may also overturn a discretionary decision of a lower court where it is satisfied that the judge has seriously misapprehended the facts, or where an obvious injustice would otherwise result: Mayne Pharma (Canada) Inc. v. Aventis Pharma Inc., [2005] F.C.J. No. 215, 2005 FCA 50, 38 C.P.R. (4th) 1 at paragraph 9.
See: Apotex Inc. v. Canada (Governor in Council), 2007 FCA 374, 370 N.R. 336, at paragraph 15.
3. Did the Judge err by concluding that the Federal Court had jurisdiction to consider the motion either directly or by analogy under section 87 of the Act?
[19] As explained above, the Judge concluded that section 38 of the Evidence Act did not apply. Instead, because she viewed the disclosure to form part of the substance of the adjourned judicial review of the decision of the Immigration Division not to adjourn the admissibility hearing, she viewed section 87 of the Act to be applicable. Alternatively, if the disclosure did not fall within the adjourned application for judicial review, the Judge decided that the documents had been disclosed pursuant to a matter within the Act and Rule 4 of the Federal Courts Rules would “bridge the gap” and allow the Court to adopt, by analogy, the section 87 procedure.
[20] For the reasons that follow, I am of the view that the Judge was correct to reject the application of section 38 of the Evidence Act and to find that the Federal Court had jurisdiction. However, I respectfully disagree that the source of the Court’s jurisdiction was section 87 of the Act. In my view, as explained below, the Court’s jurisdiction was founded upon section 44 of the Federal Courts Act, R.S.C. 1985, c. F-7 and the Federal Court’s plenary jurisdiction over disclosure in immigration matters.
[21] Turning first to the potential application of section 38 of the Evidence Act, section 38 is set out in the appendix to these reasons. Generally, it provides a mechanism for the protection of information where in a proceeding a person is required to disclose, or expects to disclose or cause to be disclosed, sensitive or potentially injurious information (subsection 38.01(1)) or believes that such information is about to be disclosed (subsections 38.01(2) and (4)) or may be disclosed (subsection 38.01(3)). In such circumstances, where proper notification has been given to the Attorney General of Canada, the Attorney General may apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4).
[22] However, just as section 39 of the Evidence Act has no application after the disclosure of sensitive information (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 at paragraph 26), in my view, section 38 has no application as a mechanism to retrieve information already disclosed. Nothing in the language of section 38 speaks to its application after disclosure has been made. It is confined by its language to the future disclosure of sensitive or potentially injurious information.
[23] As to the potential application of section 87 of the Act, the section provides that:
87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies to the proceeding with any necessary modifications.
87. Le ministre peut, dans le cadre d’un contrôle judiciaire, demander l’interdiction de la divulgation de renseignements et autres éléments de preuve. L’article 83 s’applique à l’instance, avec les adaptations nécessaires, sauf quant à l’obligation de nommer un avocat spécial et de fournir un résumé.
[24] The ordinary meaning of this text is that section 87 applies only during an application for judicial review when the Minister may apply for leave not to disclose information that, but for the granting of leave, would be producible (generally as part of the certified tribunal record). Thus, on its plain language, section 87 applies to prevent disclosure. It is not intended to apply as a mechanism to retrieve information after disclosure has been made.
[25] Moreover, with respect to the requirement that there be a pending application for judicial review, it is common ground that no application for judicial review had been brought with respect to the pending application for ministerial relief made under subsection 34(2) of the Act. The Judge found, however, that by obtaining a stay of the admissibility hearing and an adjournment of the application for judicial review of the Immigration Division’s decision not to adjourn the admissibility hearing, Mr. Sellathurai had “inextricably linked” the subsection 34(2) application and the application for judicial review. Thus, in her view, section 87 of the Act became applicable.
[26] I again respectfully disagree. As explained above, section 87 applies to the anticipated disclosure of information relevant to a pending application for judicial review. The language of the French version of section 87 is express that the application for the non-disclosure of information or other evidence may be made “dans le cadre d’un contrôle judiciaire”.
[27] In the present case, what was relevant to the pending application for judicial review was information or evidence about the propriety of the refusal of the Immigration Division to grant a further adjournment. The information at issue which was inadvertently disclosed is information relevant to whether Mr. Sellathurai was inadmissible. Therefore, it is not clear that the information at issue is relevant to the pending application for judicial review. More to the point, there is no evidence that the information inadvertently disclosed in the ministerial relief application formed part of the record before the Immigration Division so as to be producible in the judicial review of the decision refusing an adjournment.
[28] Section 87 applies only to protect information that is producible in a pending application for judicial review. The linkage to a future, perhaps related, judicial review is insufficient to make section 87 applicable to documents or information not otherwise producible in the pending application for judicial review.
[29] Before leaving section 87, brief mention should be made of Rule 4 of the Federal Courts Rules, known as the gap rule. Rule 4 states:
4. On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of the proceeding most closely relates.
4. En cas de silence des présentes règles ou des lois fédérales, la Cour peut, sur requête, déterminer la procédure applicable par analogie avec les présentes règles ou par renvoi à la pratique de la cour supérieure de la province qui est la plus pertinente en l’espèce.
[30] Rule 4 exists to ensure that there are no gaps of a procedural nature. Thus, in cases such as Mohammed v. Canada (Minister of Citizenship and Immigration), 2006 FC 1310, [2007] 4 F.C.R. 300 Rule 4 has been applied in order to fill a lacuna in the Rules for dealing with sensitive information. However, in those cases there was no doubt that the proceedings were properly commenced in the Federal Court and that it possessed jurisdiction (see Mohammed at paragraphs 18 to 20). What was missing was a procedural mechanism for the protection of sensitive information within the proceeding. Where, however, as in this case the jurisdiction of the Federal Court is in doubt, Rule 4 cannot be relied upon to confer substantive jurisdiction on the Federal Court.
[31] Having considered section 38 of the Evidence Act and section 87 of the Act, I now turn to section 44 of the Federal Courts Act. The section states:
44. In addition to any other relief that the Federal Court of Appeal or the Federal Court may grant or award, a mandamus, an injunction or an order for specific performance may be granted or a receiver appointed by that court in all cases in which it appears to the court to be just or convenient to do so. The order may be made either unconditionally or on any terms and conditions that the court considers just. [emphasis added]
44. Indépendamment de toute autre forme de réparation qu’elle peut accorder, la Cour d’appel fédérale ou la Cour fédérale peut, dans tous les cas où il lui paraît juste ou opportun de le faire, décerner un mandamus, une injonction ou une ordonnance d’exécution intégrale, ou nommer un séquestre, soit sans condition, soit selon les modalités qu’elle juge équitables. [Non souligné dans l’original.]
[32] In Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 the Supreme Court considered the ambit of this provision. The majority of the Court observed that by virtue of sections 3, 18 and 18.1 of what is now the Federal Courts Act, the Federal Court was made “a court of review and of appeal which stands at the apex of all the administrative decision-makers on whom power has been granted by individual Acts of Parliament.” At paragraph 36, Justice Bastarache wrote for the majority:
36 As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts, in this case the Human Rights Act, Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction. [emphasis added]
[33] The majority of the Court concluded that when the then Federal Court Act and the Canadian Human Rights Act, R.S.C. 1985, c. H-6 were read together, it was intended that section 44 of the Federal Courts Act conferred jurisdiction on the Federal Court to grant an interlocutory injunction enjoining a party to proceedings before the Human Rights Tribunal from making available messages likely to expose persons to hatred or contempt on the basis of any prohibited ground of discrimination.
[34] In the present case, in addition to sections 3, 18 and 18.1 of the Federal Courts Act, subsection 72(1) of the Act confers a broad supervisory jurisdiction upon the Federal Court with respect to matters arising under the Act. In the words of subsection 72(1):
72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.
72. (1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance, question ou affaire — prise dans le cadre de la présente loi est subordonné au dépôt d’une demande d’autorisation.
[35] The disclosure of information to an applicant for ministerial relief that is required by the principles of procedural fairness, and the control over such disclosure, are clearly related to the jurisdiction of the Federal Court to supervise the exercise of ministerial discretion to grant or withhold relief under subsection 34(2) of the Act. It follows, as in Liberty Net, that the Federal Court has plenary jurisdiction over the disclosure process.
[36] In Liberty Net the majority went on to note the requirement that there be “valid federal law which nourishes the statutory grant of jurisdiction” and that the “dispute over which jurisdiction is sought must rely principally and essentially on federal law” (paragraph 43).
[37] In the present case, this requirement is met in the body of law relating to national security privilege and public interest immunity, as evidenced in section 38 of the Evidence Act, those provisions of the Act relating to the protection of information where disclosure would be injurious to national security or the safety of any person and the Security of Information Act, R.S.C. 1985, c. O-5.
[38] To conclude, I find that the Federal Court had plenary jurisdiction to hear and adjudicate upon the Minister’s motion for injunctive relief. The source of the jurisdiction was section 44 of the Federal Courts Act and the Federal Court’s plenary jurisdiction over disclosure in immigration matters. Because the Federal Court’s power to order the return of the documents derived from section 44 of the Federal Courts Act, the preclusive provisions of paragraphs 72(2)(e) and 74(d) of the Act do not apply. There was, therefore, no requirement that a question be certified in order for this appeal to be properly brought and so this Court may consider the issues raised by the appellant in this case.
4. If the Federal Court erred by applying section 87 of the Act, what was the proper procedure to follow?
[39] Because the Federal Court’s jurisdiction was not based directly or indirectly upon section 87 of the Act, it possessed jurisdiction whether or not any related application for judicial review happened to be pending before the Federal Court. Irrespective of whether related proceedings were already in existence, in my view the proper procedure to be followed was that followed by the applicant in Liberty Net. What is now known as a notice of application should have been filed seeking injunctive relief, and the application should have been supported by appropriate affidavit evidence.
[40] In the present case, the Minister moved by way of notice of motion filed within the pending application for judicial review of the decision of the Immigration Division. In my view, this was not fatal to the present application. The notice of motion fully disclosed the grounds relied upon by the Minister and referred to section 44 of the Federal Courts Act. The motion was supported by appropriate affidavit evidence. The failure to comply with the Federal Courts Rules does not render a proceeding, or a step in the proceeding, void (Rule 56).
5. Did the Federal Court err in concluding that the inadvertently disclosed documents could be returned to the Minister?
[41] The Minister’s motion sought injunctive relief, primarily the return of the three documents released to Mr. Sellathurai that were said to contain information that was subject to national security privilege. Ancillary relief was sought in the form of an order that any copies of the three documents, and any notes related to the content of the privileged information, be destroyed. Mr. Sellathurai’s counsel has advised that no copies were made and there is no suggestion that any notes were made about the content of the documents. Accordingly, on this appeal the challenge is made only to the Judge’s order that the documents be returned to the Minister. Mr. Sellathurai argue