A-162-79
Man Yee So (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly
D.J.—Toronto, September 12 and 14, 1979.
Judicial review — Immigration — Deportation order —
Applicant retained counsel to represent her at inquiry but
counsel decided to send an associate who was not a lawyer to
represent applicant at hearing — No allegation that any act of
Adjudicator constituted denial of natural justice — Whether
or not natural justice denied because counsel for applicant had
been denied an opportunity to make full representations to
Adjudicator on behalf of her client — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
B. Knazan for applicant.
B. Evernden for respondent.
SOLICITORS:
Knazan & Jackman, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court rendered in English by
KELLY D.J.: In this section 28 application, the
applicant sought to set aside a deportation order
made on 21st February 1979 on the ground that
there had been a denial of natural justice in that
counsel for the applicant had been denied the
opportunity to make full representations to the
Adjudicator on behalf of her client.
At the inquiry, the Adjudicator had found, on
the evidence, that the applicant was a person
illegally in Canada; no exception has been taken to
that finding; it is only with respect to that portion
of the inquiry in which the Adjudicator was called
upon to decide whether to issue a departure notice
or to make a deportation order that is the subject
of the present proceedings.
The relevant facts are as follows: pursuant to a
direction, an inquiry as to the immigration status
of the applicant was convened on 15th February
1979; the applicant having expressed the wish to
be represented by counsel, the inquiry was
adjourned to the 21st February 1979 to enable the
applicant to retain counsel; before the latter date
the applicant retained a qualified lawyer as coun
sel to represent her at the inquiry and retained the
same counsel to defend her on a charge of shop
lifting brought against the applicant. Prior to the
resumption of the adjourned inquiry, that counsel,
having spoken to her client the applicant, spoke to
the case presenting officer by telephone. After so
speaking to the case presenting officer, the coun
sel, having conflicting commitment, decided to
send to the inquiry an associate who was not a
lawyer. That associate appeared and was, before
the Adjudicator, accepted by the applicant as her
counsel upon the inquiry.
On this application it was alleged that due to a
misapprehension as to the facts relevant to the
issues to be decided by the Adjudicator (i.e.
whether a departure notice should issue or a
deportation order be made), the retained counsel,
being unable to appear personally, decided not to
ask for an adjournment to permit her personal
appearance, and instructed her less qualified
associate to appear; that on this account the appli
cant did not have the benefit of submissions that
would have been made by qualified counsel and
was, in this manner, denied natural justice. It was
further alleged that the retained counsel was under
the impression that the circumstances of the case
were "routine", whatever that may mean, and
believed that a departure notice would be issued
and that the case presenting officer would agree to
such a disposition of the matter.
As the matter was presented to this Court, it
was not alleged that the Adjudicator or the case
presenting officer misled the retained counsel and
thereby led the counsel to fail to appraise properly
the nature of the facts which would be before the
Adjudicator.
It is to be noted that there is in the presentation
of this application no allegation that any act of the
Adjudicator constituted a denial of natural justice;
no foundation for such an allegation can be found
in the record of inquiry; it is a circumstance
external to the deciding tribunal that we are asked
to consider as resulting in a denial of natural
justice.
On behalf of the applicant it was submitted that
the decision of the retained counsel not to appear
personally to make submissions to the Adjudicator
was one which she would not have made had she
been fully aware of the circumstances in the light
of which the deportation order was made.
All these circumstances, of which the retained
counsel alleges she was unaware, were within the
knowledge of the applicant and if the retained
counsel was unaware of any of them, it was
because the applicant had failed to expose them to
her counsel.
Since it is the applicant who complains of the
denial of natural justice, we have here the anoma
lous situation of a client withholding from the
counsel whom she had retained to represent her,
information now claimed to be pertinent to her
interest and claiming a denial of natural justice
because her counsel acted on the basis of the
information disclosed to her by her client.
In effect, we are being asked to hold that a
client, who has misinformed or not fully informed
her counsel as to the precise nature of the case, or
whose counsel has erred in her judgment as to her
responsibility to her client to appear and make
submissions on behalf of her client, may claim that
the failure of the tribunal to hear submissions that
might have been made amounts to a denial of
natural justice. To state this proposition is to
expose its absurdity.
Since neither the Adjudicator nor the case pre
senting officer misled the applicant or her counsel,
counsel's misapprehension is a result of either the
failure of the applicant fully to inform her, or her
own misunderstanding of the circumstances dis
closed to her; in neither case can the Adjudicator
be responsible for the alleged denial of natural
justice.
Having decided that the allegation of denial of
natural justice cannot be substantiated, the record
discloses no error in law on the part of the
Adjudicator. The evidence justified a deportation
order—in fact, having in mind section 32 of the
Immigration Act, 1976, S.C. 1976-77, c. 52, it is
difficult to see how any other conclusion could
have been reached.
The application is, therefore, dismissed.
* * *
URIE J.: I agree.
* * *
RYAN J.: I concur.
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.