Digests

Jackson v. Canada (Minister of Citizenship and Immigration)

IMM-5340-99

Rouleau J.

3/8/00

9 pp.

Judicial review of Immigration and Refugee Board, Immigration Appeal Division's decision lacked jurisdiction to reopen Immigration Act, s. 70 appeal--Applicant appealing after removal order issued--Applicant, counsel served with notice to appear--Counsel appearing at November 1998 hearing, but applicant failed to attend--Counsel indicating had not seen or heard from client since July--Appeal Division declaring appeal abandoned--Applicant subsequently removed to United States--Applicant, spouse seeking to reopen appeal on ground applicant incarcerated at time of hearing--Appeal Division holding lacked jurisdiction to reopen appeal after removal from Canada--Application dismissed--In Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, Sopinka J. stating general rule final decision cannot be reopened after formal judgment drawn up, issued, entered subject to two exceptions: where slip in drawing it up or where error in expressing manifest intention of court--No evidence before Court herein suggesting removal order would have been set aside; no grounds advanced questioning validity of removal order--Must be finality to proceedings --No slip or error in expressing manifest intention of court --No statutory power for tribunal to rehear matter it has disposed of--No principle of natural justice offended--Case law clear: once deportation order executed, Board not entitled to reopen appeal--Canada (Minister of Citizenship and Immigration) v. Toledo, [2000] 3 F.C. 563 (C.A.) holding Appeal Division having equitable, continuing jurisdiction once notice of appeal filed, and should there be subsequent removal before matter entertained by Appeal Division, appellant should be heard--By analogy, once decision rendered by Appeal Division, appellant subsequently removed, Appeal Division functus officio --Immigration Act, R.S.C., 1985, c. I-2, s. 70(1) (as am. by S.C. 1995, c. 15, s. 13).