Court of Appeal for Ontario

Francis v. Canada (Attorney General)

Date: 2003-02-24

Counsel: Beth Symes (Eberts Symes Street & Corbett), for the plaintiffs/appellants.

(C35460)

[1] By the Court: We agree with reasons and conclusion of Juriansz, J.

[2] The Superior Court's jurisdiction to entertain the action is uncontested. We are satisfied that the Federal Court Trial Division also had jurisdiction; see Federal Court Act, R.S.C. 1985, c. F-7; Kigowa v. Minister of Employment and Immigration et al., [1990] F.C.J. No. 60; 105 N.R. 278 (F.C.A.).

[3] We are further satisfied that the action is at heart "an immigration matter" as the appellants claim that they were the victims of an unconstitutional exercise of the discretion found in s. 114(2) of the Immigration Act. According to the authorities of this court and the Supreme Court, the Federal Court is the proper forum for immigration matters unless it can be shown that the Federal Court is not an "effective or appropriate forum": see Reza v. Minister of Employment and Immigration, 1994 SCC 91, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348; Francis v. Canada (1999), 1999 ONCA 9286, 125 O.A.C. 248; 49 O.R.(3d) 136 (C.A.). The appellant's contention that the Federal Court is not an appropriate or effective court comes down to the submission that the Federal Court's interpretation of the interests of the child in the context of the deportation of a parent has effectively denied the existence of the constitutional rights relied on by the appellants.

[4] We do not agree with that reading of the case law and in any event it is irrelevant to the issue before the court. The fact that the jurisprudence of the court may not leave much hope for success does not render the court either inappropriate or ineffective. Ultimately the Federal Court and this court take their law from the Supreme Court and it can't be assumed that a different law would be applied in the Federal Court than would be applied in the Superior Court.

[5] We also reject the parens patriae argument. The claim turns on whether there was an unconstitutional exercise of discretion. The parens patriae power is not engaged.

[6] The appeal is dismissed. The A.G. quite fairly does not ask for costs and none are awarded.

[7] Appeal dismissed.

Appeal dismissed.