Malcolm Junor (Plaintiff)
v.
The Queen & Minister of Manpower & Immigra
tion (Defendants)
Trial Division, Walsh J.—Montreal, November
26; Ottawa, November 30, 1973.
Practice—Motion to strike out statement of claim—No
reasonable cause of action—Immigration—Action for dam
ages by non-immigrant re loss of future earnings—Action to
compel right to apply for landed immigrant status—Immi-
gration Appeal Board Act, R.S.C. 1970, c. I-3, s. 11 as
amended by S.C. 1973, c. 27.
There is no provision of law by which a Court can, in the
proceedings brought by the plaintiff, order the defendants to
grant him the right to apply for landed immigrant status or a
right of appeal to the Immigration Appeal Board which has
now been taken away from him by statute. The allegations
in the statement of claim disclose no grounds for holding the
defendants liable in damages, nor for declaring any parts of
the Immigration Act or the Immigration Appeal Board Act
as amended, or any regulations made thereunder ultra vires.
ACTION.
COUNSEL:
Gerald Postelnick for plaintiff.
Denis Bouffard for defendants.
SOLICITORS:
Postelnick, Postelnick and Wekarchuk,
Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendants.
WALSH J.—This is a motion to have plaintiff's
action struck out on the basis that no reasonable
cause of action exists. The statement of claim
discloses that plaintiff arrived at Toronto Inter
national Airport on March 4, 1973, being a
citizen of Guyana, having been advised by rela
tives and friends that he had a right to visit
Canada as a tourist and then, if he so desired,
apply to become a landed immigrant. Upon his
arrival he was informed by an immigration offi
cer that he could only enter Canada as a visitor
until March 25, 1973 and since it was suspected
that he was coming to Canada with the intention
of becoming a landed immigrant, an inquiry
would be held by the Department on March 26,
1973 for the purposes of determining same,
which inquiry could subject him to possible
deportation. He was given notice of this inquiry
by the Special Inquiry Officer, and as was
revealed at the hearing before me by counsel for
the parties, he failed to attend the inquiry and
his whereabouts in Canada remain unknown to
defendants. On the same day that he was
advised of this inquiry on March 4, 1973 he was
released on $100 bail and obliged to surrender
his return ticket and informed that he could take
no employment in Canada pending the hearing.
The statement of claim alleges that upon learn
ing that he could be deported he assumed that
he did not have the right to apply for landed
immigrant status and that he also assumed that
he could remain in Canada as a tourist indefi
nitely as long as he did not apply for this status
since the date of the inquiry was fixed for the
day after his tourist status expired. It is alleged
that the notices and information given him were
misleading, that the prohibition against taking
employment in Canada was contrary to princi
ples enunciated in the Canadian Bill of Rights,
that defendants' authority over aliens does not
extend to granting or withholding the right to
work, and that he has therefore suffered dam
ages in the amount of $3,500 as loss of wages.
It is further alleged that when he came to
Canada he was not aware that the law would be
changed so as to extend the right to apply in
Canada for landed immigrant status only to per
sons who arrived on or before November 30,
1972 or that he would be deprived of his right to
appeal to the Immigration Appeal Board and
that this legislation affecting his acquired rights
retroactively is discriminatory and illegal. He
did on September 11, 1973 notify defendants of
his intention to obtain landed immigrant status
in accordance with the law which was in effect
on March 4, 1973 but no action has been taken
on this; and the statement of claim further
alleges that he has all the qualifications to
become a landed immigrant, and that there is no
valid reason to discriminate arbitrarily against
him. In conclusion plaintiff prays that the
defendants be condemned jointly and severally
to pay him the sum of $3,500 as damages for
loss of wages under reserve of his rights to
claim additional sums for same as they become
due, that the provisions preventing the plaintiff
from taking employment be declared ultra vires;
that the defendants be ordered to grant the
plaintiff the right to apply for landed immigrant
status according to the rules and regulations in
effect on March 4, 1973, which include the right
of appeal to the Immigration Appeal Board, and
that the provisions preventing the plaintiff from
applying for landed immigrant status be
declared ultra vires.
In considering this question certain sections
of the Immigration Act, R.S.C. 1970, c. I-2, in
effect as of March 4, 1973 are pertinent. Sec
tion 6 provides:
6. Every person seeking to come into Canada shall be
presumed to be an immigrant until he satisfies the immigra
tion officer examining him that he is not an immigrant.
Section 7(1) lists the persons who may be
allowed to enter and remain in Canada as non-
immigrants and includes in paragraph (c) "tou-
rists or visitors".
Section 7(3) provides as follows:
7. (3) Where any person who entered Canada as a non-
immigrant ceases to be a non-immigrant or to be in the
particular class in which he was admitted as a non-immi
grant and, in either case, remains in Canada, he shall forth
with report such facts to the nearest immigration officer and
present himself for examination at such place and time as he
may be directed and shall, for the purposes of the examina
tion and all other purposes under this Act, be deemed to be
a person seeking admission to Canada.
Section 19(1) of the Act provides:
19. (1) Every person, including Canadian citizens and
persons with Canadian domicile, seeking to come into
Canada shall first appear before an immigration officer at a
port of entry or at such other place as may be designated by
an immigration officer in charge, for examination as to
whether he is or is not admissible to Canada or is a person
who may come into Canada as of right.
and section 22 states:
22. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it
would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let such
person come into Canada, he may cause such person to be
detained and shall report him to a Special Inquiry Officer.
Section 23(1) reads as follows:
23. (1) Where the Special Inquiry Officer receives a
report under section 22 concerning a person who seeks to
come into Canada from the United States or St. Pierre and
Miquelon, he shall, after such further examination as he may
deem necessary and subject to any regulations made in that
behalf, admit such person or let him come into Canada or
make a deportation order against such person, and in the
latter case such person shall be returned as soon as practi
cable to the place whence he came to Canada.
When plaintiff, without having been approved
abroad for immigration to Canada, arrived
ostensibly as a tourist or visitor but frankly and
honestly disclosed to the immigration officer at
the port of entry that he might decide to remain
as an immigrant the immigration officer very
properly set up an inquiry for March 26, the day
after his status as a tourist or visitor would
expire. He was immediately released on bail by
virtue of section 17 which reads as follows:
17. (1) Subject to any order or direction to the contrary
by the Minister, a person taken into custody or detained
may be released under such conditions, respecting the time
and place at which he will report for examination, inquiry or
deportation, payment of a security deposit or other condi
tions, as may be satisfactory to a Special Inquiry Officer.
(2) Where a person fails to comply with any of the
conditions under which he is released from custody or
detention, he may be retaken into custody forthwith and any
security deposit that may have been made as a condition of
his release shall be deemed to be forfeited and shall form
part of the Consolidated Revenue Fund. (Italics mine.)
When he did not appear for the inquiry his bail
was in due course cancelled. When the date for
the inquiry was fixed he was apparently told by
the immigration officer that he could not as a
tourist or visitor seek employment until his
status was clarified as a result of the inquiry,
which might however lead to his deportation.
Section 11(2) of the Act provides as follows:
11. (2) A Special Inquiry Officer has authority to inquire
into and determine whether any person shall be allowed to
come into Canada or to remain in Canada or shall be
deported. (Italics mine.)
so as a result of the inquiry he might have been
allowed to remain in Canada, although the
provisions of section 18 would appear to indi
cate that he would have been deported. Section
18(1) provides:
18. (1) Where he has knowledge thereof, the clerk or
secretary of a municipality in Canada in which a person
hereinafter described resides or may be, an immigration
officer or a constable or other peace officer shall send a
written report to the Director, with full particulars,
concerning
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(vi) entered Canada as a non-immigrant and remains
therein after ceasing to be a non-immigrant or to be in
the particular class in which he was admitted as a
non-immigrant,
Section 18(2) provides:
18. (2) Every person who is found upon an inquiry duly
held by a Special Inquiry Officer to be a person described in
subsection (1) is subject to deportation.
It is not up to this Court in the present proceed
ings to substitute itself for the Special Inquiry
Officer and determine what finding he would
have made with respect to plaintiff had the
inquiry taken place. By failing to present him
self for such an inquiry plaintiff undoubtedly
weakened his position but I fail to see how this
could give rise to any action in damages against
defendants. It appears on the face of the state
ment of claim that the proper procedure was
followed by the immigration officer in plaintiff's
case. After his disclosure that, although he was
ostensibly entering Canada as a tourist, he might
decide to apply for landed immigrant status, an
inquiry was very properly set up. He was
immediately released on bail. He was advised
that if the inquiry did not turn out favourably
for him he would be subject to deportation,
which is what the law itself provides. The law
appears to have been explained to him by the
immigration officer, and if plaintiff chose to
believe advice from relatives and friends that he
could visit Canada as a tourist and subsequently
apply for landed immigrant status, and subse
quently assumed that the inquiry was of no
significance and that he could remain in Canada
as a tourist indefinitely as long as he did not
apply for landed immigrant status or take
employment in Canada (although it is admitted
in the statement of claim that he was told he
could only enter Canada as a visitor until March
25, 1973) and even if the reason he failed to
appear for the inquiry by the Special Inquiry
Officer was that he was afraid this would lead
to his deportation, none of this could give rise to
an action in tort against defendants. The proper
application of the law cannot give rise to a claim
for damages, and it is a well-established princi
ple that a person cannot seek the protection of
the law when he does not come before the
Court with clean hands. It is equally trite to
state that ignorance of the law is no excuse.
By amendments to the Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, as amended by
S.C. 1973, c. 27, made subsequent to his arrival,
during the summer of 1973, section 11 was
amended so as to restrict the right of appeal to
the Immigration Appeal Board by a person
against whom an order of deportation has been
made by excluding an appeal for persons
deemed by subsection 7(3) of the Immigration
Act (supra) to be seeking admission into
Canada. Section 8 of this same amending statute
provides that a person who registered with an
immigration officer within sixty days after the
coming into force of the Act and who came to
Canada prior to November 30, 1972 and has
remained in Canada since that date shall be
deemed to be a person who has reported in
accordance with subsection 7(3) of the Immi
gration Act and applied for admission to Canada
as an immigrant and shall be deemed not to be a
person described in, inter alia, paragraph
18(1)(e)(vi) (supra). Since plaintiff did not come
to Canada before November 30, 1972 this liber
alized provision in the new legislation giving an
opportunity to regularize their status to certain
persons illegally in Canada, does not apply to
plaintiff and, on the other hand, he has lost his
right of appeal to the Immigration Appeal Board
against a deportation order. While this undoubt
edly imposes some hardship on plaintiff and
others like him who entered Canada after
November 30, 1972, I do not find that this
legislation is ultra vires as being in conflict with
the Canadian Bill of Rights, S.C. 1960, c. 44.
Rights of appeal can certainly be given and
taken away by appropriate legislation at any
given time and if a person who had certain
rights of appeal has chosen, whether from fear
or from ignorance of the law, not to have
availed himself of them at such time as these
rights were in effect, he cannot claim to have
suffered damages when the law is subsequently
changed and these rights of appeal no longer
exist, nor can he claim any damages in the
nature of personal discrimination against him
arising from the fact that certain extended rights
were given to persons illegally in the country
who arrived before November 30, 1972 and
these same rights were not extended to those
who arrived in the country thereafter. It would
be stretching the meaning of section 1(b) of the
Canadian Bill of Rights setting out as one of the
human rights and fundamental freedoms "the
right of the individual to equality before the law
and the protection of the law" to hold that this
invalidates the passage of a law by Parliament
extending certain rights to one category of
individuals which are not extended to persons in
another category.
It would also be incongruous to hold that a
person who has been permitted to enter Canada
as a tourist or visitor for 21 days as a non-immi
grant and who has deliberately failed to appear
at a hearing before a Special Inquiry Officer in
accordance with the law and hence is thereafter
illegally in the country, suffers damages or is
being discriminated against by being informed
that he cannot seek employment in the interval,
or that such a provision as a condition to his
being released on bail until his status is deter
mined by such inquiry results in discrimination
against him constituting an infringement of the
Canadian Bill of Rights.
There is no provision of law by which a Court
can, in the proceedings brought by plaintiff,
order defendants to grant him the right to apply
for landed immigrant status or a right of appeal
to the Immigration Appeal Board which has
now been taken away from him by statute, and
the allegations in the statement of claim disclose
no grounds for holding defendants liable in dam
ages, nor for declaring any parts of the Immi
gration Act or the Immigration Appeal Board
Act as amended, or any regulations made there-
under ultra vires. The Court is, however, only
dealing with the proceedings as brought and not
expressing any opinion as to any rights which
plaintiff may still have to apply for landed immi
grant status if any such recourse remains avail
able to him. Accordingly, defendants' motion to
strike out the statement of claim is granted with
costs without prejudice to any rights which
plaintiff may have under the law to apply for
landed immigrant status.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.