A-637-78
Maria Esperanza Luna Flores de Garcia (Appli-
cant)
v.
Minister of Employment and Immigration and
Immigration Appeal Board (Respondents)
and
Deputy Attorney General of Canada (Mis -en-
cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, May 9; Ottawa, May 28, 1979.
Judicial review — Immigration — Applicant, facing depor
tation, appealed to Immigration Appeal Board in April 1973
— When applicant failed to present herself, appeal was dis
missed and deportation order quashed on mistaken assump
tion that she had left the country — In March 1978, applicant
applied for reopening of the hearing of her appeal in order to
adduce new evidence and to induce the Board to amend its
previous decision and substitute an order admitting her for
permanent residence — Application was heard in November
1978 but was rejected on the ground that the Board was
without jurisdiction to grant landing to unsuccessful applicant
under the new Act, in force on April 10, 1978 — Whether or
not that decision should be reviewed and set aside — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, art. 28 — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, s. 125(1) — Immigration
Appeal Board Act, R.S.C. 1970, c. I-3, ss. 11, 14, 15
Interpretation Act, R.S.C. 1970, c. I-23, s. 35.
APPLICATION for judicial review.
COUNSEL:
William G. Morris for applicant.
Claude Joyal for respondents and mis -en-
cause.
SOLICITORS:
William G. Morris, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following are the reasons for judgment
rendered in English by
PRATTE J.: The problem raised by this section
28 application results from the repeal, on April 10,
1978, of the Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, and the coming into force, on
the same day, of the Immigration Act, 1976, S.C.
1976-77, c. 52.
The applicant comes from Guatemala. A depor
tation order was pronounced against her on April
3, 1973. She appealed from that decision to the
Immigration Appeal Board. At that time, the
provisions of the Immigration Appeal Board Act
governing her right of appeal and the jurisdiction
of the Board read in part as follows:
11. A person against whom an order of deportation has been
made under the Immigration Act may appeal to the Board on
any ground of appeal that involves a question of law or fact or
mixed law and fact.
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.
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,
(b) in the case of a person who was not a permanent resident
at the time of the making of the order of deportation, having
regard to
(ii) the existence of compassionate or humanitarian con
siderations that in the opinion of the Board warrant the
granting of special relief,
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.'
' Sections 11 and 15 were substantially amended in August
of 1973, but not in a way that could influence the outcome of
this case.
The applicant failed to present herself on the
date fixed for the hearing of the appeal. The Board
apparently assumed that the applicant had
returned to Guatemala; it dismissed the appeal
and, pursuant to section 15(1), quashed the depor
tation order.
The Board, however, was mistaken. The appli
cant never left Canada. In March 1978, her solici
tor filed with the Board an application in writing
to reopen the hearing of her appeal. She wanted to
adduce further evidence with the hope that it
would induce the Board to review its previous
decision and substitute for it an order which, in
addition to quashing the deportation order, would
admit her to Canada for permanent residence.
This application was founded on the decision of
the Supreme Court of Canada in Grillas v. The
Minister of Manpower and Immigration [1972]
S.C.R. 577, which held that the "equitable" juris
diction of the Board under section 15(1) was a
"continuing jurisdiction" enabling the Board, as
long as a deportation order had not been executed,
to reopen an appeal and revise its former decision
under section 15.
That application had been filed with the Board
on March 18, 1978. Pursuant to orders of the
Board, it was presented orally to the Board on
November 7, 1978. It was rejected by a decision
made a few days later for the reason, inter alia,
that the Board no longer had the power, under the
new Immigration Act, 1976, which had come into
force on April 10, 1978, to grant landing to an
unsuccessful appellant. This is the decision which
the applicant seeks to have reviewed and set aside.
The Immigration Act, 1976 came into force on
April 10, 1978. It repealed the Immigration
Appeal Board Act and established a new Immigra
tion Appeal Board with a new jurisdiction and new
powers. Section 125(1) makes it clear, however,
that the old and new Boards are to be considered
as being only one body; it reads as follows:
125. (1) The Immigration Appeal Board established by sec
tion 3 of the Immigration Appeal Board Act as it read before it
was repealed by subsection 128(1) of this Act and the Board
established by this Act are hereby declared for all purposes to
be one and the same body.
The Immigration Act, 1976 does not contain
any provision conferring on the new Board the
power either to grant landing to an unsuccessful
appellant or to review the decisions rendered by its
predecessor under the Immigration Appeal Board
Act. The applicant submits, however, that the
Board may nevertheless exercise those powers as
the successor and continuer of the old Immigration
Appeal Board and in spite of the repeal of the
Immigration Appeal Board Act.
The applicant's submission is, in my view, well
founded.
The new Immigration Appeal Board is the same
body as the Board established by the Immigration
Appeal Board Act. It follows that it may exercise
the powers of its predecessor inasmuch as those
powers continue to exist. The only provision that I
could find in the Immigration Act, 1976 affecting
the subsistence of the powers of the old Immigra
tion Appeal Board is section 128(1) which express
ly repeals the Immigration Appeal Board Act. 2
That repeal, however, did not have the effect of
depriving the Board of its section 15 jurisdiction in
respect of the applicant.
Section 35(c) 3 of the Interpretation Act abol
ishes the common law rule that, except as to
transactions past and closed, a repealed statute
2 128. (1) The Immigration Aid Societies Act, being chapter
146 of the Revised Statutes of Canada, 1952, the Alien Labour
Act, being chapter A-12 of the Revised Statutes of Canada,
1970, the Immigration Act, being chapter I-2 of the Revised
Statutes of Canada, 1970, and the Immigration Appeal Board
Act, being chapter I-3 of the Revised Statutes of Canada, 1970,
are repealed.
3 35. Where an enactment is repealed in whole or in part, the
repeal does not
(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enactment
so repealed;
was deemed never to have existed. It provides that
the repeal of a statute does not affect any right
acquired or accrued under the repealed enactment.
Now, it is well established that litigants have a
vested right in the jurisdiction of the courts as it
exists at the time of the commencement of the
proceedings. 4 They are not affected, therefore, by
the mere repeal of the statutes conferring that
jurisdiction.
Before April 10, 1978, the applicant had, in my
opinion, a vested right in the "continuing equitable
jurisdiction" of the Board under section 15. The
repeal of that section, on April 10, 1978, did not
affect that right. It follows that the Immigration
Appeal Board still has the power, notwithstanding
the repeal of the Immigration Appeal Board Act,
to exercise its section 15 jurisdiction in favour of
the applicant.
As the Board's view that it lacked jurisdiction to
grant landing to the applicant was, as I read its
reasons, the main reason for its decision, it follows
that the section 28 application should be granted
and the matter referred back to the Board for
determination on the basis that it possesses that
jurisdiction. Normally, such a determination
should be made without any further hearing. How
ever, as counsel for the applicant has argued vigor
ously, and perhaps not without foundation, that he
had been involuntarily misled into believing that
the Board would not consider some of the material
on which, in effect, it founded its decision, I think
that, in this case, the matter should not be dis
posed of by the Board without a further hearing.
For these reasons, I would grant the section 28
application and refer the matter back to the Board
for decision after a new hearing on the basis that
the Board, in spite of the repeal of the Immigra
tion Appeal Board Act, may still exercise its sec-
4 See: The Royal Bank of Canada v. Concrete Column
Clamps (1961) Ltd. [1971] S.C.R. 1038; Loos v. The Queen
[1971] S.C.R. 165; Ville de Jacques-Cartier v. Lamarre
[1958] S.C.R. 109; Boyer v. The King [1949] S.C.R. 89.
tion 15 equitable jurisdiction in favour of the
applicant.
* * *
LE DAIN J.: I agree.
* * *
HYDE D.J.: I agree.
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.