Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights and Freedoms – Constitutional law – Immigration – Foreign skilled workers – Admissibility – Procedural law – Directions – Certification of questions – Whether a single judge of a Court of Appeal has jurisdiction to direct the court’s registry to refuse to issue, in limine, a Notice of Appeal, without a motion to quash that appeal – Whether s. 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is unconstitutional and of no force and effect, in its entirety, for breaching the applicant’s rights to a fair and independent judiciary, where certification is exclusively required from the very judge of the Federal Court dismissing the application for judicial review – Whether s. 74(d) is unconstitutional and of no force and effect, in the event that certification is required for constitutional issues, as to the constitutionality of a legislative provision of the Act?

In 2006, Ms. Gong applied for permanent residency as a Foreign Skilled Worker. By 2008, there was an enormous backlog of applications. In response, amendments were introduced to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and Ministerial Instructions governing eligibility and processing have been issued. A large group of Foreign Skilled Worker applicants affected by the changes applied for judicial review. They were brought under case management and agreed to a Protocol. Judgments in representative proceedings have been released. Ms. Gong is the lead litigant for a subgroup of applicants. In addition to seeking an order in mandamus to compel processing of her visa application, she also submitted questions to the Federal Court for certification for appeal. Section 74(d) of the Immigration and Refugee Protection Act states that an appeal from a judicial review in a matter covered by the Act may be made only if the reviewing judge certifies that a serious question of general importance is involved and states the question. Russell J. dismissed the application for mandamus and refused to certify questions. Ms. Gong sought to file a Notice of Appeal in the Federal Court of Appeal. Near J.A. issued a Direction that “The Registry shall not accept for filing the Notice of Appeal filed by M[s]. Gong, given that no question of general importance has been certified in this immigration matter”. The Registry did not accept Ms. Gong’s Notice of Appeal.