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Aly Abdel Hafez Aly (Appellant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Jackett C.J., Thurlow and Kerr JJ.—Ottawa, December 17 and 23, 1971.
Practice—Judicial Review—Appeal—Simultaneous appeal and application to set aside decision of federal tribunal— Terms—Federal Court Act, s. 28, Rule 1314.
Where there is an application under s. 28 of the Federal Court Act for judicial review of a decision by a federal tribunal and also a right of appeal from that decision if leave to appeal is granted by the Court of Appeal, leave to appeal should be granted "as a matter of course, in the absence of special circumstances, on terms (a) that the appeal is launched forthwith, (b) that the appellant forthwith seek an order under Rule 1314 joining the two proceedings and giving directions as to the conduct of the joint proceedings, and (c) that the joint proceedings be heard and determined without delay and in a summary way".
APPLICATIONS (1) for leave to appeal to the Court of Appeal from a decision of the Immigration Appeal Board dismissing an appeal from a deportation order, and (2) under s. 28 of the Federal Court Act to review and set aside the decision of the Immigration Appeal Board on the grounds of failure to observe the princi ples of natural justice and otherwise acting in excess of its jurisdiction.
Y. A. George Hynna for appellant.
I. Whitehall and W. E. Conklin for respondent.
JACKETT C.J. (orally)-.Where there is an application under section 28 of the Federal Court Act in respect of a decision or order and there is a right of appeal from that decision "if leave to appeal is granted" by this Court, I would normally favour granting leave to appeal as a matter of course, in the absence of special circumstances, on terms
(a) that the appeal is launched forthwith,
(b) that the appellant forthwith seek an order under Rule 1314 joining the two proceedings
and giving directions as to the conduct of the joint proceedings, and
(c) that the joint proceedings be heard and determined without delay and in a summary way.
My reason for this view is that, when I read section 28 and section 29 of the Federal Court Act together, it is my conclusion that the statu tory intention is
(a) that no right of appeal previously existing was to be in any way cut down by those sections (except for the substitution of the Federal Court of Appeal for the Supreme Court of Canada effected by the Schedule to the Federal Court Act), and
(b) that the right of review provided by sec tion 28 is a minimum right to be available to every party "directly affected by a decision or order".
This is accomplished by restricting the section 28 right of review only "to the extent" that the order or decision "may be ... appealed".
Furthermore, in my view, this modern legisla tion should be interpreted to eliminate all proce dural technicalities and difficulties that are not absolutely required by the statutory provisions in providing to an aggrieved person such relief as falls within the ambit of the jurisdiction conferred on the Court. Refusal of leave, where there is no apparently arguable question, ordinarily serves the purpose of eliminating unjustified delays and expense. Where, how ever, the applicant is exercising a right to have the order or decision reviewed under section 28 in any event, in my view, leave should be grant ed so that the Court, when it does review the matter, can deal with the substantive questions involved without concerning itself with techni cal limitations within the ambit of the jurisdiction.
This does not mean, for example, that leave would be granted automatically if there were an application to quash the section 28 proceedings on the ground that they were not taken in good faith or fell outside the jurisdiction of the Court. See section 52 of the Federal Court Act.
In my view, therefore, leave should be grant ed in this case on the following terms:
(a) that the appeal is launched forthwith,
(b) that the appellant forthwith seek an order under Rule 1314 joining the two proceedings and giving directions as to the conduct of the joint proceedings, and
(c) that the joint proceedings be heard and determined without delay and in a summary way.
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THURLOW J.—I agree with what has been said as to the principles on which leave to appeal should be granted in cases where there is a concurrent application to review under sec tion 28 of the Federal Court Act and I also agree with the result which has been proposed.
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KERR J. concurs.
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