78-A-356
Sam Young Lamptey-Drake (Agyei-Bediakoh)
(Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Urie and Ryan
JJ.—Ottawa, June 15, 1979.
Practice — Application for leave to appeal decision of
Immigration Appeal Board — Earlier motion for leave to
appeal from same decision dismissed — Second application
made by applicant personally as result of letter from Registry
in reply to letter written by applicant — Court without juris
diction to hear another application for leave to appeal in the
same matter — Federal Court Rules 324, 1107.
City of Windsor v. Canadian Transport Commission
[1980] 1 F.C. 62, followed.
APPLICATION.
COUNSEL:
Randolph M. Minuk for applicant.
SOLICITORS:
Randolph M. Minuk, Winnipeg, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a motion in writing for
leave to appeal from a decision of the Immigration
Appeal Board made October 13, 1978 (and for the
necessary extension of time).
By an earlier motion dated October 26, 1978,
application was made for leave to appeal from the
same decision of the Immigration Appeal Board,
which was a decision dismissing the applicant's
appeal from a deportation order made March 9,
1978. That application was duly considered in
accordance with the Rules of the Court (see Rules
1107 and 324)' and was dismissed by a judgment
of the Court dated March 16, 1979.
While, on that original application for leave to
appeal, the applicant was represented by a solici
tor, a letter was received in the Registry purport
ing to be written by the applicant personally and
bearing date March 30, 1979, which letter reads as
follows:
I have the honour to write to you or who ever may be concern
and advised that I received a copy of a letter from my counsel
with a copy of a certificate (which was not signed by the
decision making judges) of an order pronounced by the (Chief
Justice, Pratte and Urie, JJ.) as contained in the certificate and
from the Federal Court of Appeal dismissing my application
for leave to appeal against and from deportation which left me
with lots of surprises and ill feelings.
In the first place, I will strongly appeal with this my letter to
the Court to rescind its decision and allow the case on the
appeal to be heard and will like to be present; same as a counsel
at any place or anywhere in the country.
' The relevant portions of the Rules in question read as
follows:
Rule 1107. (1) Unless the Chief Justice, or a judge nominat
ed by him, of his own motion or on an ex parte request,
otherwise directs for special reason,
(b) an application for leave to appeal to the Court of
Appeal, or
(c) an application to the Court of Appeal or to a judge
thereof for an extension of time,
shall be made in the manner contemplated by Rule 324 and
the provisions of paragraphs (2), (3) and (4) of Rule 324
shall be applicable to any such application as if it were made
under paragraph (1) of Rule 324.
Rule 324. (1) A motion on behalf of any party may, if the
party, by letter addressed to the Registry, so requests, and if
the Court or a prothonotary, as the case may be, considers it
expedient, be disposed of without personal appearance of that
party or an attorney or solicitor on his behalf and upon
consideration of such representations as are submitted in
writing on his behalf or of a consent executed by each other
party.
(2) A copy of the request to have the motion considered
without personal appearance and a copy of the written
representations shall be served on each opposing party with
the copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1)
may send representations in writing to the Registry and to
each other party or he may file an application in writing for
an oral hearing and send a copy thereof to the other side.
(4) No motion under paragraph (1) shall be disposed of
until the Court is satisfied that all interested parties have had
a reasonable opportunity to make representations either in
writing or orally.
But I must frankly advised that I have be prejudice and
openly discriminated in this particular case from the beginning
by some officials at the Immigration Department, the police
and the Immigration Appeal Board which came with some
decisions which were very prejudice and after my letter to them
wrote another judgement which looks like an appology but still
ordered the order to go on, however, as I have said earlier I
have not been treated well at all up to this Court unless
otherwise my appeal is allowed or they are hearing my case in a
different way because of my race, for the fact that Immigration
Department in certain areas in Canada handle cases like mine
without any consideration or without going back to first immi
grant growth after the Second World of which my father
cannot be ruled out.
For the fact that I have lived in Canada for the last 17 years
and there are some proves to that effect which I am prepared to
submit and also it is on record that when the Immigration
arrested me and detained me for nearly 2 1 / 2 months, the case,
went as far as to the Manitoba Queens Bench, they couldn't
prove their case for my deportation this means I won the case;
but and why then can't they consider me to continue my life or
rest of my life in Canada?
I also submitt have that, when my mother dies, I approached
the Immigration with respect, to attend my mother's funeral in
Africa, but they didn't allowed me to go, this as a custom at
home and as a senior son, has created many problems which as
a result has cut off family ties even though I am little know and
I am afraid my life is in danger and cannot go without making
any preparations or better Settlement with my families either
wise anything can happen to my life. I also submit that the time
I have consume on this case and my subsequent detention
caused me behind my bills and cannot just leave such problems
for families friends and humanitarians friends who help me
financially about this case, all the same I submit that I have a
business of export and import, printing of T. Shirts, manufac
turer's agent which monies totaling nearly $12000.00 is
involved.
In conclusion, I humbly and thereby go back to the Judge
ment at the Queen's Bench in Manitoba in November 1977 and
submit that the said judges or to whom it may concern must
consider such cases with humanity because of future life and
conditions in Africa in general and good record and business in
progress involved.
Finally, I courteously applied myself and therefore asking
and appealing to the Crown to re-consider and rescind its
decision to grant leave to my appeal as there are very much
merit in my appeal.
The Registry replied to this letter by a letter
bearing date April 18, .-,1979, and reading as
follows:
I acknowledge receipt of your letter dated March 30, 1979.
In reference to your comment that your copy of the order "was
not signed by the decision making judges", the original order on
file was signed by the judges. Rule 337(8) requires the Registry
to send a certified copy to the parties.
There is no provision under the General Rules and Orders of
the Federal Court of Canada for an "appeal to the court to
rescind its decision", in respect to applications for leave to
appeal. In regard to your comment that you would like the
court to "allow the case or the appeal to be heard and (you
would) like to be present", Rule 1107(1) states, in part, that
"unless the Chief Justice ... of his own motion or on an ex
parte request, otherwise directs for special reason, ... (b) an
application for leave to appeal to the Court of Appeal ... shall
be made in the manner contemplated by Rule 324 ..." Rule
324 provides, of course, for disposition of motions or applica
tions without personal appearance of parties and solicitors upon
consideration of written submissions.
You may, should you so desire, file another application for
leave to appeal with the Federal Court of Appeal, together with
the requisite filing fee of $5.00. However since section 84 of the
Immigration Act (1976) provides that:
An appeal lies to the Federal Court of Appeal on any
question of law, including a question of jurisdiction, from a
decision of the Board on an appeal under this Act if leave to
appeal is granted by that Court based on an application for
leave to appeal filed with that Court within fifteen days after
the decision appealed from is pronounced or within such
extended time as a judge of that Court may, for special
reasons, allow,
you should also file an application to extend the time within
which an application for leave to appeal may be granted. There
is a filing fee of $5.00 for an application to extend time.
It was apparently as a result of this latter letter
from the Registry that the present motion in writ
ing bearing date June 6, 1979, and filed June 7,
1979, was deposited in the Court.
Once having considered and dismissed an
application for leave to appeal, the Court has, in
my view, no jurisdiction to hear another applica
tion for leave to appeal in the same matter. See
City of Windsor v. Canadian Transport Commis
sion [page 62, supra].
There is an unfortunate aspect of this matter in
that the second application was impliedly invited
by the letter written by the Registry to the appli
cant on April 18, 1979.
Having regard to the nature of this Court, it has
always been the policy of the Court to encourage
the Registry to assist litigants and potential liti
gants within the limits of their special knowledge
of the Rules. The officers of the Registry cannot,
of course, undertake, and do not purport to under
take, to advise litigants as to what action they
should take in particular cases. It would be quite
improper for them to do so. The dividing line
between the Registry being as helpful as possible
within the proper area of their expertise and giving
legal advice which they have neither the expertise
nor the qualifications to give is a difficult one
which gives rise to the possibility of misunder
standing. This potential danger was recognized
when the policy was adopted of encouraging
Registry officers to be as helpful as possible. For
tunately, heretofore, little, if any, difficulty has
arisen as a result thereof. Unfortunately, this is a
case where there would appear to have been a real
misunderstanding.
Nevertheless, it would not appear to me that the
Court has any alternative to dismissing the second
application for leave to appeal for want of
jurisdiction.
* * *
URIE J.: I concur.
* * *
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.