T-5816-79
Agnieszka Wieckowska (Applicant)
v.
Georges Lanthier and Minister of Canada
Employment and Immigration (Respondents)
and
Attorney General of Canada (Mis -en-cause)
Trial Division, Dubé J.—Montreal, December 10;
Ottawa, December 17, 1979.
Immigration — Prerogative writs — Prohibition —
Application for writ of prohibition prohibiting respondents
from continuing applicant's inquiry until resolution of her
claim for refugee status — Applicant not notified by Minister
of his decision to refuse her claim for refugee status, but by
the Acting Registrar of Refugee Status Advisory Committee
— Whether the Minister himself must inform the applicant in
writing of his decision, or whether persons employed in the
Public Service could be authorized to exercise the power of
communicating the Minister's decision — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 45(1),(5), 123.
APPLICATION.
COUNSEL:
Julius H. Grey for applicant.
Claude Joyal for respondents and mis -en-
cause.
SOLICITORS:
Julius H. Grey, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following is the English version of the
reasons for order rendered by
Dust J.: This is an application for a writ of
prohibition prohibiting respondents from continu
ing applicant's inquiry until her claim for refugee
status has been resolved.
In her affidavit in support of the application
applicant stated that she had not been notified by
the Minister himself of the refusal of her claim for
refugee status. She was notified "indirectly" of
this refusal by a notice, dated February 19, 1979,
from R. C. Hartling, Acting Registrar, Refugee
Status Advisory Committee.
The notice from the Acting Registrar, appended
to the affidavit, informed applicant pursuant to
subsection 45(5) of the Immigration Act, 1976,
S.C. 1976-77, c. 52, that the Minister had deter
mined that she was not a Convention refugee as
concerned her claim under subsection 45(1) of the
said Act.
Learned counsel for the applicant objected to
this manner of communicating the Minister's deci
sion since, according to him, it was contrary to
subsection 45(5) of the Act, which provides that
"the Minister shall thereupon in writing inform .. .
the person who claimed to be a Convention refugee
of his determination". According to him the dele
gation of powers by the Minister to the Acting
Registrar was contrary to the maxim delegatus
non potest delegare.
Counsel for the Crown then hastened to file at
the hearing, without an affidavit but with the
consent of the other party, the official document
I-32 entitled [TRANSLATION] "Delegation of
powers under section 45(5) of the Immigration
Act". The document, signed on February 5, 1979
by the then Minister of Employment and Immi
gration, reads as follows:
[TRANSLATION] Pursuant to the provisions of section 123 of
the Immigration Act, I hereby authorize the following person
and, in his absence, the person replacing him, to exercise all the
powers, duties and functions I am required to exercise under
subsection 45(5) of the Immigration Act:
Central administration
Registrar, Refugee Status Advisory Committee
It has been established that the said R. C.
Hartling is in fact Acting Registrar of the Refugee
Status Advisory Committee.
This document, however, did not settle the ques
tion to the satisfaction of counsel for the applicant.
The latter maintained that under the provisions of
subsection 45(5) it is the Minister himself who
must inform the applicant of his determination in
writing. He maintained that this technicality was
very important since if the decision was made by
the Minister himself, he argued, it could be
appealed by the applicant.
He referred first to a decision of the Supreme
Court of Canada, The Attorney General of
Canada v. Brent [1956] S.C.R. 318. Under section
61 of the 1952 Immigration Act, R.S.C. 1952, c.
325, the Governor in Council could make regula
tions limiting the admission of persons to Canada
for different reasons. An Order in Council, pur
portedly under this section, authorized the Special
Inquiry Officer to refuse admission to certain per
sons for various reasons. Kerwin C.J. decided on
behalf of the Court that the Governor General in
Council had no power to delegate his authority to
this officer and that subsection 20(4) was there
fore invalid.
In another decision of the Supreme Court of
Canada, Ramawad v. The Minister of Manpower
and Immigration [1978] 2 S.C.R. 375, Pratte J.
stated that in certain cases the 1970 Immigration
Act [R.S.C. 1970, c. I-21 authorized the delegation
of powers at several levels. The most important
functions are reserved for the Minister's discretion
while other powers are delegated to officials. The
learned Judge cited section 67 of the old Act in
concluding that the Minister does not have the
right to delegate powers to persons not mentioned
in this section. The section in question mentions
the Deputy Minister and the Director; no mention
is made of the Special Inquiry Officer, who was
therefore not entitled to decide whether there were
special circumstances justifying the waiving of the
prohibition.
In the case at bar it was not at all this type of
important power which the Minister delegated to
the Registrar of the Advisory Committee. Once
again, the only power exercised by the latter under
subsection 45(5) of the Act was that of com
municating the Minister's determination.
Under the provisions of section 123 of the new
Act the Minister or the Deputy Minister may
authorize persons employed in the Public Service
to exercise any of the powers that are required to
be exercised by him under the Act or Regulations,
other than those referred to in certain paragraphs,
and any such power exercised by any person so
authorized shall be deemed to have been exercised
by the Minister or Deputy Minister. None of the
paragraphs of section 45 is mentioned in the
exceptions provided for in section 123.
It is therefore clear from the Act that it was
Parliament's intention to allow the Minister to
delegate his routine functions to public servants.
The effect of a contrary interpretation would be
absurd: it is obviously the function of the Regis
trar, rather than of the Minister himself, to notify
the persons claiming refugee status of the Minis
ter's determination.
ORDER
The application is dismissed with costs.
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.