A-424-78
Theodore Georgas (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Ryan and Le Dain JJ. and
MacKay D.J.—Toronto, September 25 and 28,
1978.
Judicial review — Immigration — Deportation — Appli
cant, a visitor admitted for a period of two months, "helped
out" in brother-in-law's restaurant for five hours each day as
a "sort of repayment" for air fare — Adjudicator found
applicant had engaged in employment for which a person
might reasonably expect to receive valuable consideration —
Whether or not adjudicator's decision an error in law —
Whether or not adjudicator should have issued departure
notice rather than making deportation order — Immigration
Act, 1976, S.C. 1976-77, c. 52, ss. 2, 27(2)(6),(e), 32(6) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
D. M. Greenbaum, Q.C. for applicant.
B. Evernden for respondent.
SOLICITORS:
Moses, Spring, Greenbaum & Weinberg,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: This is a section 28 application to
set aside a deportation order that was made on the
ground that the applicant, who had been admitted
to Canada as a visitor for a period of two months,
had engaged in employment without authorization
and was thus a person described in paragraphs
27(2)(b) and (e) of the Immigration Act, 1976,
S.C. 1976-77, c. 52.
There were sharp conflicts of testimony and
serious issues of credibility at the inquiry. The
transcript is a long one, but after a careful exami
nation of it I am of the opinion that there was
evidence, found to be credible by the adjudicator,
from which she could conclude that the applicant
had engaged in employment as defined by section
2 of the Act—that is, "any activity for which a
person receives or might reasonably be expected to
receive valuable consideration". 'Even if one puts to
- one side (as the adjudicator suggests she might
have done) the testimony of the arresting officers
that the applicant's brother-in-law told them the
applicant was "helping out" in his restaurant as a
"sort of repayment" for the airlines ticket which
the brother-in-law testified he had paid for as a
gift, the work which a former waitress described as
having been carried out by the applicant in the
restaurant could in the circumstances of this case
be regarded as activity for which a person might
reasonably be expected to receive valuable con
sideration. This does not mean that any work
performed by a visitor for a relative with whom he
or she is staying, and for which the relative would
have to pay compensation if he or she chose to
have it done by a stranger, should fall within the
definition. It depends on the nature of the work
and the circumstances in which it is performed. In
the present case the work which the adjudicator
found the applicant to have carried on was work of
a substantial nature necessary to the conduct of
the brother-in-law's business. The witness whose
testimony the adjudicator chose to believe
described it as "taking orders from me and the
other girls, cooking, cutting meat, doing dishes,
getting things from downstairs and bringing them
up" for some five hours a day virtually every day
of the week. As such, it was work which might well
have deprived someone else of gainful employ
ment, which, I take it, is the essential concern of
the Act.
The applicant contended that if the adjudicator
did not err in law in arriving at her decision, she
should, having regard to all the circumstances of
the case, have issued a departure notice to the
applicant instead of making a deportation order
against him, as provided for by subsection 32(6) of
the Act, which, as applied to the present case,
reads in part as follows:
32. ...
(6) Where an adjudicator ... is satisfied that
(a) having regard to all the circumstances of the case, a
deportation order ought not to be made against the person,
and
(b) the person will leave Canada, on or before a date speci
fied by the adjudicator,
... he shall issue a departure notice to the person specifying
therein the date on or before which the person is required to
leave Canada.
The record shows that the adjudicator con
sidered the circumstances of the case as disclosed
by the evidence which she found to be credible and
the submissions of counsel as to whether a depor
tation order ought to be made, and that the con
siderations on which she based her opinion or
exercise of discretion were legally relevant ones.
There is therefore no basis for interfering with her
decision.
For all of these reasons I would dismiss the
application.
* * *
RYAN J. concurred.
* * *
MACKAY D.J. concurred.
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.