A-33-75
Peter Thomas Wilby (Appellant)
v.
The Minister of Manpower and Immigration and
The Immigration Appeal Board (Respondents)
Court of Appeal, Jackett C.J., Pratte and Dubé
JJ.—Toronto, May 27 and 29, 1975.
Judicial review and appeal—Citizenship and immigration—
Appellant "landed in Canada" in 1967—Ordered deported,
and appeal dismissed by Immigration Appeal Board in 1968—
Board staying, and subsequently quashing order in 1970—
Second deportation order in May 1974—Board holding appel
lant not `person with Canadian domicile"—Whether s. 4(2)(b)
of Immigration Act applies only to persons remaining in
Canada for "a determinate period of time" calculated to the
execution of the order, or voluntary departure—Federal Court
Rule 1314—Immigration Act, R.S.C. 1970, c. I-2, ss. 4(1), (2),
(7), 14, 15(1), (2), (4), 18(1)(e)(ii), (2), 33.
Appellant, who was "landed" in 1967, was ordered deported
in 1968. The Board, dismissing his appeal in 1968, stayed
execution, and subsequently quashed the order in 1970. In
March 1974, a second order was issued, the Board finding that
appellant had acquired only three years and eight months
domicile, short of the five-year requirement under section 4.
Appellant appeals under section 23, and applies for judicial
review, maintaining that (a) when an order is quashed it is
nullified "as if it never existed" and (b) section 4(2)(b) only
applies to persons remaining in Canada for "a determinate
period of time" calculated to either (1) the execution of the
order, or (2) voluntary departure.
Held, dismissing the appeal and application, as to (a), while
a decision which is attacked as having breached the rules of
natural justice is of continuing effect until found defective in
which case it may be nullified ab initio, the order in question
was not quashed because of invalidity. Exercise of the section
15 power to quash an otherwise valid order does not impliedly
give retroactive effect to the quashing. As to (b), the words of
section 4(2) are indicative of the limited type of period that is
contemplated by section 4(2)(b), and indicate that it does not
extend to a subsequent period of residence in Canada after a
deportation. The Act does not recognize a right to stay in
Canada after deportation is ordered. The words "unless an
appeal ... is allowed" demonstrate that a period of residence
immediately following an order is not to count for the five-year
period unless an appeal against the order is allowed.
Ridge v. Baldwin [1964] A.C. 40; Durayappah v. Fernan-
do [1967] 2 A.C. 337 and Secretary of State v. Hoffman-
La Roche [1973] 3 All E.R. 945; discussed. Canadian
Pacific v. Alberta (1975) 5 N.R. 49, considered.
JUDICIAL review and appeal.
COUNSEL:
I. J. Roland for appellant.
E. A. Bowie for respondents.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: A deportation order was made
against the appellant on March 19, 1974. This is
an attack on that order by way of a section 28
application and an appeal under section 23 of the
Immigration Appeal Board Act joined in one pro
ceeding by order made under Rule 1314.
It is common ground that the deportation order,
having been made under section 18(2) of the
Immigration Act read with section 18(1)(e)(ii),
cannot be supported in law if the appellant was, at
the time that it was made, "a person with Canadi-
an domicile" within those words as contained in
the introductory portion of section 18(1)(e). 1 If
the appellant was such a person at that time, then
obviously the appeal to this Court must be
allowed. On the other hand, if the appellant was
not, at that time, such a person, the appeal to this
Court must be dismissed because the only attack
The relevant portions of section 18 read as follows:
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
(ii) has been convicted of an offence under the Criminal
Code,
(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.
on the deportation order made in this Court was
based on the contention that he was such a person.
The answer to the question whether the appel
lant was, at the time of the 1974 deportation order
"a person with Canadian domicile" must be deter
mined by applying to the relevant facts the provi
sions in section 4 of the Immigration Act which, in
so far as relevant, read as follows:
4. (1) Canadian domicile is acquired for the purposes of this
Act by a person having his place of domicile for at least five
years in Canada after having been landed in Canada.
(2) No period shall be counted toward the acquisition of
Canadian domicile during which a person
(b) resides in Canada after the making of a deportation
order against him and prior to the execution of such order or
his voluntarily leaving Canada, unless an appeal against such
order is allowed;
(7) Any period during which a person has his place of
domicile in Canada that is less than the period required for the
acquisition of Canadian domicile and that might otherwise be
counted by a person toward the acquisition of Canadian domic
ile is lost upon the making of a deportation order against him,
unless an appeal against such order is allowed.
The facts relevant to the determination of the
question that has to be decided are:
1. on July 9, 1967, the appellant was "landed in
Canada";
2. on September 16, 1968, the appellant was
ordered deported;
3. on November 7, 1968, the Immigration
Appeal Board, pursuant to section 14 of the
Immigration Appeal Board Act, 2 dismissed an
appeal by the appellant from the 1968 deporta
tion order; and
4. having from time to time stayed the execu
tion of the 1968 deportation order, on Novem-
ber 13, 1970, the Immigration Appeal Board
"quashed" that order pursuant to section 15 of
the Immigration Appeal Board Act, which, at
the relevant time, read, in so far as relevant, as
follows:
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation pursuant
to paragraph 14(c), it shall direct that the order be executed as
soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident at
the time of the making of the order of deportation, having
regard to all the circumstances of the case,
direct that the execution of the order of deportation be stayed,
or quash the order or quash the order and direct the grant or
entry or landing to the person against whom the order was
made.
(2) Where pursuant to subsection (1), the Board directs that
execution of an order of deportation be stayed, it shall allow the
person concerned to come into or remain in Canada under such
terms and conditions as the Board may prescribe and shall
review the case from time to time as it considers necessary or
advisable.
(4) Where the execution of an order of deportation
(a) has been stayed pursuant to paragraph (1)(a), the Board
may at any time thereafter quash the order;
2 Section 14 of the Immigration Appeal Board Act reads:
14. The Board may dispose of an appeal under section 11
or section 12 by
(a) allowing it;
(b) dismissing it; or
(c) rendering the decision and making the order that the
Special Inquiry Officer who presided at the hearing should
have rendered and made.
The Immigration Appeal Board dealt with the
question of the appellant's status as "a person with
Canadian domicile" as follows:
The Court, in reviewing all the evidence, finds that the
appellant, when his appeal against the deportation order dated
16th September, 1968 was dismissed under section 14 of the
Immigration Appeal Board Act, did lose the Canadian domicile
that he had accumulated from the time he obtained landed
immigrant status, i.e., 9th July, 1967, to 16th September, 1968.
Section 4(7) of the Immigration Act is clear and precise and no
other interpretation can be given without distorting the intent
of Parliament.
Under section 15 of the Immigration Appeal Board Act, the
Board stayed the deportation order until 6th November, 1970,
at which time the deportation order was quashed and the
appellant resumed the status of landed immigrant that he had
previous to the deportation order of 16th September, 1968. His
Canadian domicile then started to run again from the 6th day
of November, 1970, the date of the quashing of the deportation
order by the Immigration Appeal Board.
On the 19th day of March, 1974, a second deportation order
was issued against the appellant. The first point to be deter
mined now by the Court is: Has the appellant acquired Canadi-
an domicile for the purpose of the Immigration Act? The Court
finds that Mr. Wilby had acquired approximately three years
and eight months of domicile—quite short of the five years
required by the Immigration Act.
Against the correctness of this finding by the
Board, the appellant puts forward, in effect, two
contentions, viz:
1. he submits that, when a deportation order is
"quashed" under section 15 of the Immigration
Appeal Board Act, the deportation order is nul
lified "as if it never existed"; and
2. he submits that section 4(2)(b) does not
apply to the facts of this case because it only
applies to a person remaining in Canada for "a
determinate period of time calculated to either
(1) the execution of the deportation order, or (2)
his voluntarily leaving Canada."
I shall consider first the question as to whether
or not the order under section 15 of the Immigra
tion Appeal Board Act whereby the deportation
order was quashed operated to nullify that order
"as if it never existed".
The courts have had occasion to struggle with
the effect of a judgment quashing a decision of a
statutory tribunal that is invalid because it was
made without complying with the requirements of
natural justice. See for example, Ridge v.
Baldwin', Durayappah v. Fernando 4 and Secre
tary of State v. Hoffman-La Roches. After con
sidering the discussions in these cases, as it seems
to me, the better view is that a decision that is
subject to attack as having been made without
satisfying the requirements of natural justice is of
continuing legal effect until, at the option of a
person who is aggrieved, the decision is found by a
competent court to be defective, in which event, it
may be nullified by judgment of the court ab
initio. In other words, if the only person who is
aggrieved by a failure to follow the dictates of
natural justice sees fit to accept the decision as
being advantageous to him, he may accept it; and
others, who are not aggrieved, have no right to
attack it. On the other hand, if the decision is
invalid because the tribunal by whom it was made
is a statutory authority that, in making the order
under attack, acted completely outside its limited
statutory authority, I should have thought that the
order might be regarded, in some circumstances at
least, as an absolute nullity not binding on anyone
and that a court decision setting it aside would be
unnecessary.'
In this case, however, the deportation order was
not "quashed" because it was tainted with invalidi
ty. It was a condition precedent to the exercise of
the Immigration Appeal Board's power under sec
tion 15 that it had dismissed the appeal against the
deportation order and had, therefore, found that
there was no legal objection to that order. Having
so found, it was vested with a special statutory
power to "quash" the order. In my view, the
exercise of this section 15 power to put an end to
7 [1964] A.C. 40, per Lord Reid at page 80, Lord Evershed
(dissenting) at pages 86 to 94, Lord Morris at page 125, and
Lord Devlin at pages 138-39.
^ [1967] 2 A.C. 337, per Lord Upjohn at pages 352-55.
5 [1973] 3 All E.R. 945, per Lord Denning at pages 953-54.
e Compare the 1975 decision of the Supreme Court of
Canada in Canadian Pacific Limited v. Alberta (1975) 5 N.R.
49, where this distinction was not relevant and was not adverted
to.
an otherwise valid deportation order does not
impliedly give retroactive effect to the quashing of
the order.' In other words, my view is that the
order under section 15 quashing the 1968 deporta
tion order against the appellant did not nullify it
retroactively.'
I turn to the appellant's second contention which
is in effect, as I understand it, that, when section
4(2) excludes, from the five-year period contem
plated by section 4(1), a period when a person
"resides in Canada after the making of a deporta
tion order against him and prior to the execution
of such order or his voluntarily leaving Canada,"
the words "prior to the execution of such order or
his voluntarily leaving Canada" have such effect
that the provision is not apt to exclude a period
after the deportation order is made if the deporta
tion order is not executed or the person does not
voluntarily leave Canada.
7I refrain from expressing any opinion as to the correctness
of the Board's statement that the appellant, upon the quashing
of the 1968 deportation order, "resumed the status of landed
immigrant". It is not clear to me that the deportation order had
effect to terminate the appellant's "status of landed immi
grant". He had been granted "landing" in 1967 in the sense
that he was, at that time, a person seeking "admission to
Canada for permanent residence" who was lawfully admitted
"to Canada for permanent residence" (see definitions of
"immigrant" and "landing" in section 2 of the Immigration
Act). The immediate effect of the deportation order was to
require that the appellant be deported to some place outside
Canada (see section 33 of the Immigration Act). It had also
such other effect as was given to it by section 4 of the
Immigration Act and other statutory provisions expressly deal
ing with it. I do not have in mind any statutory provision that
deems a person ordered to be deported not to be a person who
was lawfully admitted to Canada; and I abstain from express
ing any opinion as to whether any such result is to be implied
from the statute.
Even when an appeal court reverses or quashes a lower
court decision, it does not completely nullify the invalid judg
ment ab initio. Such a judgment must retain its pre-existing
validity in so far as officers of the court or others have bona
fide acted upon it when it was not stayed. Supplementary
orders may be necessary to put the appellant back in the
position in which he should have been. So, also, it would seem
that the quashing of a deportation order under section 15
cannot be given the effect of making invalid things done on the
faith of it before it was quashed, as, for example, detention of
the person who was the subject of the order pursuant to section
16 of the statute while the order was in effect.
In my view, this contention must also fail. The
words in question, which were there before
section 15 of the Immigration Appeal Board Act
was enacted,' are merely indicative of the limited
type of period that is contemplated by paragraph
(b) of section 4(2), and, in particular, indicate that
it does not extend to a subsequent period after
deportation, when the deportee is resident in
Canada because he has been allowed back into
Canada. In my view, they also make it clear that
the statute is not recognizing some right to stay in
Canada after a deportation order is made. As I
read section 4(2)(b) with reference to the appel
lant's second contention, the significant words are
the concluding words, viz: "unless an appeal
against such order is allowed". These words make
it clear that a period of residence immediately
following a deportation order is not to count for
the five-year period unless an appeal against the
order is allowed. If it were otherwise, the provision
would mean, if the appellant's second contention
were correct, that a person ordered deported could
defeat the obvious intent of the provision by going
into hiding in Canada so as to prevent execution of
the deportation order.
In my view, the appeal, and the section 28
application, must, for the above reasons, be
dismissed.
* * *
PRATTE J. concurred.
* * *
DUBÉ J. concurred.
9 I section 15 of the Immigration Appeal Board Act had
been in existence when section 4 of the Immigration Act was
enacted, section 4 might have dealt expressly with the effect of
a quashing of a deportation order under section 15, and, thus,
have put the matter beyond doubt. Unfortunately section
4(2)(b) has never been re-framed so as to deal expressly with
that case and we are left with the situation that it excludes a
case where an appeal against the deportation has been allowed
but does not exclude a case where the deportation order has
been quashed.
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.