Singh v. Canada
T-1495-95
Muldoon J.
2/12/96
22 pp.
Application for declaration regulations barring admission to Canada of any immigrant because non-accompanying, undisclosed dependant of immigrant member of inadmissible class ultra vires-Before becoming landed immigrant from Guyana in September 1990, plaintiff completed statutory declaration never married, had no children, recognized responsibility to advise of change of status-On arrival plaintiff confirming no dependants-In 1993 immigration officer reported him for inquiry on ground granted landing by reason of misrepresentation of material fact i.e. non-disclosure of birth of son in April 1990-At inquiry adjudicator finding applicant granted landing by virtue of misrepresentation of material fact-Plaintiff ordered deported-Appeal from deportation order dismissed-Application for judicial review dismissed-Regulations' vires never raised before Board (Appeal Division)-Failure to raise issue before competent tribunal puts party at peril of being estopped on basis of res judicata when attempting to raise same issue in subsequent litigation in which same adversary engaged-Plea of res judicata applies not only to points upon which Court actually required by parties to pronounce judgment, but to every point properly belonging to subject of litigation and which parties, exercising reasonable diligence, might have brought forward at time: Green v. Weatherill, [1929] 2 Ch. 213-Nemo debet bis vexari . . . pro una et eadem causa: No one ought to be twice vexed for one and the same cause-Plaintiff asserting claim must assert all relief in regard to cause or claim, and second attempt to elicit Court's aid for same claim must be prevented-Plaintiff conceding validity of regulations before Board-This law suit comprehending same parties before Board-Immigration Act, s. 69.4(2) giving Appeal Division sole, exclusive jurisdiction to determine questions of law and fact, including questions of jurisdiction-Board, Appeal Division competent to hear, determine question of validity of regulations-Therefore issue res judicata, plaintiff barred from vexing defendant second time-Abuse of process to attempt to litigate in Trial Division of this Court that which could have been validly raised before Board-Summary judgment pronounced dismissing action-If matter so important someone else will assert it, but plaintiff estopped from so doing-Act, s. 114, setting out regulation-making authority of Governor in Council, rendering anemic plaintiff's claim regulations ultra vires-Act, s. 3(c) setting out one objective "to facilitate . . . reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad"-Plaintiff asking Court to interpret s. 3(c) as if subsumed Act's other provisions, by reading "permanent residents with their close relatives of no matter what class, admissible or inadmissible, from abroad"-As regulations enacted for administration of Act's purposes, and as authorized by Act, at various junctures and in s. 114, meeting test for having been enacted intra vires-Criteria for determining validity of immigration regulation set out in Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595 (C.A.)-Act, s. 114(1)(a.1), (a.3), (b.1), (c), 6(2), (3),(4)(b) authorizing Regulations, s. 6(1)(a)-Immigrant applicant for permanent residence legitimately required to disclose existence, identity of all dependants accompanying or non-accompanying-Regulations wholly within ambit of Governor in Council's rule-making authority and make no attempt to usurp legislative authority of Parliament, while evincing functional, material policy directions in administration of statute law-Act empowering Governor in Council to pass regulations barring admission to Canada of any immigrant because non-accompanying dependant of immigrant member of inadmissible class-Immigration Act, R.S.C., 1985, c. I-2, ss. 3(c), 69.4(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 114 (as am. by S.C. 1992, c. 49, s. 102)-Immigration Regulations, 1978, SOR/78-172, ss. 6(1)(a) (as am. by SOR/83-675, s. 2; 92-101, s. 3), 9(1)(a) (as am. by SOR/83-675, s. 3; 88-517, s. 3), 10(1)(a) (as am. by SOR/83-675, s. 4; 93-44, s. 7).