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Vol. 139, No. 27 — July 2, 2005 Rules Amending the Federal Court Immigration and Refugee Protection RulesStatutory authority Federal Courts Act Sponsoring agencies Federal Court of Appeal and Federal Court REGULATORY IMPACT (This statement is not part of the Rules.) Background The purpose of the Rules Amending the Federal Court Immigration and Refugee Protection Rules is to make consequential amendments to the Federal Court Immigration and Refugee Protection Rules (the "Rules") as a result of the coming into force, on July 2, 2003, of the Courts Administration Service Act, S.C. 2002, c. 8, and to amend rule 5(2) as a result of the transfer of the supervision and control of the Canada Border Services Agency (the "CBSA") from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness. Subject to the approval of the Governor in Council, the power to make these rules rests with the Rules Committee established under section 45.1 of the Federal Courts Act, pursuant to subsection 75(1) of the Immigration and Refugee Protection Act. The Court Administration Service Act amended the Federal Court Act (now the Federal Courts Act). The two divisions that previously existed within the Federal Court of Canada (Appeal Division and Trial Division) were replaced with two separate courts: the Federal Court of Appeal and the Federal Court. On December 12, 2003, the Governor in Council, pursuant to Order in Council SI/2003-214, transferred the control and supervision of the CBSA from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness. Description The purpose of the amendments to the Rules is twofold: to ensure that the terminology in the Rules reflects the existence of the Federal Court of Appeal and of the Federal Court as separate courts and to reflect the transfer of the supervision and control of the CBSA from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness. Section 1 of the Rules Amending the Federal Court Immigration and Refugee Protection Rules changes the title. Section 2 amends the definitions of "Court" and "Registry." These amendments reflect the distinct character of the Federal Court of Appeal and of the Federal Court and the new definition of Registry in the Federal Courts Act. Section 3 amends the reference to the Federal Court Rules, 1998, which were amended on November 29, 2004, under the new title Federal Courts Rules. Section 4 amends rule 5(2) to reflect the transfer of responsibilities between the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness. Rule 5(2) of the Rules required an applicant to name the Minister of Citizenship and Immigration as the respondent if the Minister was not the applicant. On December 12, 2003, the Governor in Council, pursuant to Order in Council SI/2003-214, transferred the control and supervision of the CBSA from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness. As a result, there are instances in which the proper respondent to an application is the Minister of Public Safety and Emergency Preparedness and not the Minister of Citizenship and Immigration. The forms are amended to allow applicants or appellants to include a request to the Court for a bilingual hearing, whereas the forms currently indicate only "English or French." Form IR-1 is amended to reflect the new wording of rule 5(2) of the Rules. Finally, consequential amendments regarding terminology are also needed to replace the use in some rules and forms of such phrases as "Court of Appeal," "Trial Division," "Federal Court of Canada" and "Federal Court of Canada Trial Division." Alternatives There are no alternatives, because the purpose of the amendments is to ensure compatibility with the Act and the Federal Courts Act. Benefits and costs There are no costs associated with these amendments. Consultation The members of the provincial bars who serve on the Federal Court of Appeal and Federal Court Rules Committee were consulted on the proposed consequential amendments. Their comments were taken into account in developing these amendments. For more information, please contact Éloïse Arbour, Secretary to the Rules Committee of the Federal Court of Appeal and Federal Court, Federal Court of Appeal, Ottawa, Ontario K1A 0H9, (613) 995-5063 (telephone), (613) 941-9454 (fax), eloise. arbour@fca-caf.gc.ca (email). Notice is hereby given, pursuant to paragraph 46(4)(a) (see footnote a) of the Federal Courts Act (see footnote b), that the rules committee established under section 45.1 (see footnote c) of that Act, pursuant to subsection 75(1) (see footnote d) of the Immigration and Refugee Protection Act (see footnote e) proposes to make the annexed Rules Amending the Federal Court Immigration and Refugee Protection Rules. Interested persons may make representations with respect to the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Éloïse Arbour, Executive Officer to the Chief Justice, Federal Court of Appeal, Chamber of the Chief Justice, 90 Sparks Street, Ottawa, Ontario K1A 0H9 (tel.: (613) 995-5063; fax: (613) 941-9454; e-mail: eloise.arbour@fca-caf.gc.ca). Ottawa, June 23, 2005 RAYMOND GUENETTE RULES AMENDING THE FEDERAL COURT IMMIGRATION AND REFUGEE PROTECTION RULES AMENDMENTS 1. The title of the Federal Court Immigration and Refugee Protection Rules (see footnote 1) is replaced by the following: FEDERAL COURTS IMMIGRATION AND REFUGEE PROTECTION RULES 2. (1) Rule 2 of the Rules is amended by adding the following before the definition "Act": 2. The following definitions apply in these Rules. (2) Rule 2 of the Rules is amended by adding the following in alphabetical order: "Court" means, as the circumstances require, (a) the Federal Court of Appeal, including, in respect of a motion, a single judge of that court; or (b) the Federal Court, including a prothonotary acting within his or her jurisdiction. (Cour) "Registry" means a registry within the meaning of the Federal Courts Act. (greffe) 3. Rule 4 of the Rules is replaced by the following: 4. (1) Subject to subrule (2), except to the extent that they are inconsistent with the Act or these Rules, Parts 1 to 3, 6, 7, 10 and 11 and rules 383 to 385 of the Federal Courts Rules apply to applications for leave, applications for judicial review and appeals. (2) Rule 133 of the Federal Courts Rules does not apply to the service of an application for leave or an application for judicial review. 4. Subrule 5(2) of the Rules is replaced by the following: (2) Unless he or she is the applicant, the Minister responsible for the administration of the Immigration and Refugee Protection Act in respect of the matter for which leave is sought shall be the respondent in an application for leave. 5. The portion of subrule 20(1) of the Rules before paragraph (a) is replaced by the following: 20. (1) An appeal to the Federal Court of Appeal shall be commenced by filing a notice of appeal in Form IR-4 as set out in the schedule within 6. The schedule to the Rules is replaced by the following: SCHEDULE Form IR—1 (Rules 5 and 6) Court File No. FEDERAL COURT Between: (Insert full name of party or the Minister responsible for the administration of the Immigration and Refugee Protection Act in respect of the matter for which leave is sought) Applicant(s) and (The Minister responsible for the administration of the Immigration and Refugee Protection Act in respect of the matter for which leave is sought or full name of the other party if the Minister is the Applicant) Respondent(s) APPLICATION FOR LEAVE TO THE RESPONDENT(S) AN APPLICATION FOR LEAVE TO COMMENCE AN APPLICATION FOR JUDICIAL REVIEW UNDER SUBSECTION 72(1) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT has been commenced by the applicant. UNLESS A JUDGE OTHERWISE DIRECTS, THIS APPLICATION FOR LEAVE will be disposed of without personal appearance by the parties, in accordance with paragraph 72(2)(d) of the Immigration and Refugee Protection Act. IF YOU WISH TO OPPOSE THIS APPLICATION FOR LEAVE, you or a solicitor authorized to practice in Canada and acting for you must immediately prepare a Notice of Appearance in Form IR-2 prescribed by the Federal Courts Immigration and Refugee Protection Rules, serve it on the tribunal and the applicant's solicitor or, if the applicant does not have a solicitor, serve it on the applicant, and file it, with proof after service, at the Registry, within 10 days after the service of this application for leave. IF YOU FAIL TO DO SO, the Court may nevertheless dispose of this application for leave and, if the leave is granted, of the subsequent application for judicial review without further notice to you.
The applicant seeks leave of the Court to commence an application for judicial review of: (Set out the date and details of the matter — the decision, determination or order made, measure taken or question raised — in respect of which a judicial review is sought and the date on which the applicant was notified or otherwise became aware of the matter.) (Set out the name, address and telephone number of the tribunal and, if the tribunal was composed of more than one person, the name of each person who was on the tribunal.) (Set out the tribunal's file number(s), if applicable.) (Add the following paragraph if applicable.) [The applicant further applies to the Court to allow an extension of time under paragraph 72(2)(c) of the Immigration and Refugee Protection Act on the following grounds: (Set out the grounds for the request for the extension of time to file the application for leave.)] In the event that the leave is granted, the applicant seeks the following relief by way of a judicial review: (Set out the precise relief sought should leave be granted, including any statutory provision or rule relied on.) In the event that the leave is granted, the application for judicial review is to be based on the following grounds: (Set out the grounds to be argued, including a reference to any statutory provision or rule to be relied on.) The applicant has (has not) received written reasons from the tribunal. In the event that the leave is granted, the applicant proposes that the application for judicial review be heard at ............., in the (English and/or French) language.
To: (Name(s) and address(es) of respondent(s)) Form IR—2 (Rule 8) Registry No. FEDERAL COURT Between: Applicant(s) and Respondent(s) NOTICE OF APPEARANCE THE RESPONDENT(s) (name(s)) intend(s) to respond to this application for leave. The tribunal's file number(s), as set out in the application for leave is (are): (Date)
Form IR—3 (Rule 9) Court File No. FEDERAL COURT Between: Applicant(s) and Respondent(s) REQUEST TO TRIBUNAL
DATE: In an application filed on ........, 20.., the applicant set out that he/she had not received written reasons for the above-captioned matter. Pursuant to rule 9 of the Federal Courts Immigration and Refugee Protection Rules, you are hereby requested, without delay, to (a) send a copy of the matter — the decision, determination or order made, measure taken or question raised — and written reasons for it, duly certified by an appropriate officer to be correct, to each of the parties, and two copies to the Registry; or (b) send written notice to all the parties and the Registry indicating either that no reasons were given for the matter — decision, determination or order made, measure taken or question raised — in respect of which the application is made, or that reasons were given but not recorded.
Form IR—4 (Rule 20) Court File No. FEDERAL COURT OF APPEAL Between: Applicant (Applicant (Respondent) in the Federal Court) and (name) Respondent (Applicant (Respondent) in the Federal Court) NOTICE OF APPEAL THE APPELLANT (name) appeals from the judgment of the Honourable (name of judge) of the Federal Court, delivered on (date). Pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, the learned Federal Court Judge certified that the following serious question(s) of general importance was(were) involved: (Set out question(s) certified by Federal Court Judge.) The appellant seeks the following relief on the determination of the question(s) under section 52 of the Federal Courts Act: (Set out the relief sought, with reference to the specific provisions in section 52 of the Federal Courts Act relied on.) The appellant requests that this appeal be heard at .......... (place), in the (English and/or French) language. Dated at......., this...... of......, 20...
COMING INTO FORCE 7. These Rules come into force on the day on which they are registered. [27-1-o] S.C. 1990, c. 8, s. 14(4) S.C. 2002, c. 8, s. 14 S.C. 2002, c. 8, s. 43 S.C. 2002, c. 8, s. 194 S.C. 2001, c. 27 SOR/93-22; SOR/2002-232 |
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