T-1778-81
Henry John Dolack (Plaintiff)
v.
Minister of Manpower and Immigration in the
Government of Canada (Defendant)
Trial Division, Nitikman D.J.—Saskatoon, April
8; Winnipeg, May 13, 1981.
Immigration — Application for permit to enter Canada —
Plaintiff resident of the United States — Separation proceed
ings instituted against plaintiff by his wife, a Canadian citizen,
in Canada — Plaintiff was denied a permit for the purpose of
attending examination for discovery — Plaintiff seeking an
interim order commanding the defendant to issue permits
allowing him to enter Canada to conduct his defence
Whether defendant's refusal contrary to ss. 1(a),(b) and 2(e) of
the Canadian Bill of Rights as alleged by plaintiff — Immi
gration Act, 1976, S.C. 1976-77, c. 52, s. 37(1)(a),(4) —
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970,
Appendix III], ss. 1(a),(b), 2(e) — The Matrimonial Property
Act, R.S.S. 1978, c. M-6.1, ss. 4, 43.
In 1975, plaintiff married a Canadian citizen. The couple
thereafter moved to the United States where they resided until
their return to Canada in 1980. Following marital difficulties,
plaintiffs wife instituted separation proceedings before the
Unified Family Court in Saskatchewan. In December 1980,
plaintiff returned to the United States where he now lives. He
sought to return to Canada to attend an examination for
discovery but was denied a permit to that effect. Plaintiff now
seeks an interim order commanding the Minister of Manpower
and Immigration to issue such permits as are necessary to allow
him to enter Canada for the purpose of instructing his counsel
and conducting his defence in the action before the Unified
Family Court. Plaintiff argues that the Minister's refusal to
grant a permit contravenes sections 1(a) and (b) and 2(e) of
the Canadian Bill of Rights as it deprives him of his enjoyment
of property and denies him the right to a fair hearing.
Held, the order applied for in the notice of motion is refused.
The provisions of sections 1(a) and (b) and 2(e) of the Canadi-
an Bill of Rights apply only to persons living in Canada and
not to a person living out of Canada. The fact that a non-resi
dent of Canada has an interest in property or claim to interest
in property of whatever nature in Canada does not affect the
Minister's right to refuse an entry permit, if the applicant is a
member of an inadmissible class, as is the case of plaintiff. The
decision of the Minister is an administrative one altogether
within his discretion. The decision not to grant a permit was
made following a full review of the case. In so deciding, the
Minister considered all the facts carefully and fairly and exer
cised his discretion judicially. Finally, the Minister's decision
does not offend against the United Nations Convention Relat
ing to the Status of Refugees.
MOTION.
COUNSEL:
D. Kovatch for plaintiff.
D. Curliss for defendant.
SOLICITORS:
Mitchell-Ching, Saskatoon, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
NITIKMAN D.J.: The plaintiff (Dolack) lives in
the United States of America. On September 6,
1975 he married Diana Elaine Meger, a Canadian
citizen, at Biggar, Saskatchewan.
Thereafter the parties moved to the United
States of America, where they resided until 1980.
There are no children of the marriage. In 1980,
Dolack and his wife returned to Biggar, Saskatch-
ewan.
On return to Biggar, they commenced farming
operations. Four quarter sections of land, build
ings, and other items were registered in the name
of the wife. Farm machinery was transferred to
Dolack and his wife. The evidence does not dis
close from whom the property was transferred or
the basis of said transfer.
The wife, who was a Canadian citizen, was free
to return to Canada, but Dolack, being a member
of an inadmissible class, was, according to the
affidavit of Danny William Dahl, of the City of
Saskatoon, in the Province of Saskatchewan,
Senior Immigration Officer, issued a permit pursu
ant to section 37(1)(a) of the Immigration Act,
1976, S.C. 1976-77, c. 52, authorizing him to
come into and remain in Canada until January
1981. It appears the permit was issued as a result
of representations made to the Minister of Man
power and Immigration in the Government of
Canada (the Minister) by the wife's relatives.
Marital difficulties arose between Dolack and
his wife and in the latter part of December 1980,
the wife commenced proceedings against him in
the Unified Family Court in the Judicial Centre of
Saskatoon, claiming the following relief:
4. a) Pursuant to The Matrimonial Property Act:
1) An Order for the division of the matrimonial property;
2) An Order pursuant to Section 27 of The Matrimonial
Property Act, that the Respondent shall file with the Court a
Statement disclosing all of his matrimonial property, wher
ever situate, all disposals of matrimonial property by him
within the two previous years, and all debts and liabilities.
b) Pursuant to The Unified Family Court Act:
1) An Order requiring the Applicant and Respondent to
file a complete sworn statement in Form U.F.C. 3;
2) An Order for Examination for Discovery of each of the
parties hereto;
3) Such other Orders as counsel may advise and this
Honourable Court may grant.
c) That Diana Dolack shall have exclusive possession of the
farm site and lands (S 1/2 of 23-37-15, N.W. 1/4 of 11-37-15,
S.E. 1/4 of 22-37-15 and N.W. 1/4 of 8-37-14), plus farm
equipment. and shall not dispose of any assets or crops grown
upon the lands without further Order of this Court.
d) Pursuant to the Matrimonial Property Act:
1) An Order restraining making of the transfer or gift or
disposition or absconding of the property of the marriage
pursuant to Section 29(1) of the said Act.
e) Such further and other relief as counsel may advise and
this Honourable Court may allow.
Dolack, by his solicitor, Douglas J. Kovatch
(Kovatch), of the law firm of Mitchell-Ching,
Saskatoon, Saskatchewan, filed a statement of
reply, claiming inter alia that the wife's motion in
her application be dismissed; an order under The
Matrimonial Property Act, R.S.S. 1978, c. M-6.1,
declaring the respondent's interest in the matri
monial property (specifically described) and a fur
ther order dividing farm machinery, bank accounts
and all other matrimonial assets.
A lis pendens against the matrimonial property
was also filed on behalf of Dolack.
In an affidavit, Kovatch deposed in part:
8. THAT when the said John Dolack originally attended at our
office, he advised that under the terms of his existing Minister's
permit, he was not allowed to obtain employment in Canada.
He further advised, and I verily believe the same to be true,
that as a result of his separation from his wife, he did not have
a means of support in Canada. Consequently, he would have to
be returning to the United States of America, to obtain
employment.
9. THAT the said John Dolack has called me on many occasions
since December of 1980, and advised me that he is now
employed in the United States of America. He has further
instructed our office to make arrangements for examinations
for discovery, in preparation for the Unified Family Court
action. Pursuant to the instructions of our client, I made
arrangements for an examination for discovery to be held on
the Unified Family Court action on February 18, 1981. After
making these arrangements, I was in contact with the Depart
ment of Immigration in Saskatoon and Regina, to request
permission for the said John Dolack to enter Canada for the
examination.
10. ON OR ABOUT the 13th day of February, A.D. 1981, I did
speak on the phone with W. L. Vanderguard, an immigration
officer with the Prairie Regional Office in Regina. At that
time, he advised me that the Minister of Manpower and
Immigration was not prepared to grant John Dolack a permit
to enter the country at that time. The said Mr. Vanderguard
further advised that he was to submit a full and complete report
to the Minister.
The affidavit further sets out that on or about
February 26, 1981, their firm received a letter
from the solicitors for the wife, which read in part:
I appreciate the problems you have met in attempting to
procure admittance for your client into Canada; however, I
must advise that, if you are unable to produce your client for
Examination, we will proceed to the obtaining of Judgment on
our client's behalf. Our client is simply unwilling to have these
proceedings continue indefinitely and wishes to see some sort of
conclusion of same in the near future.
that on or about February 26, 1981 Kovatch wrote
to the Canada Employment and Immigration
Commission, to the attention of Mr. Bill Vander-
guard, enclosing a copy of the letter from the
wife's solicitors and pointing out what said solici
tors propose to do if Dolack was not produced for
examination for discovery and intimated that such
failure to appear for discovery could well result in
Dolack's statement of defence being struck out and
judgment given in favour of his wife, if application
for this were made by her solicitors. The letter is
quite lengthy and I have summarized part of it. I
feel, however, that I should quote the last part of
the letter, as certain significant facts appear to
emerge therefrom. The quoted part is:
This letter will also advise that prior to his entering Canada, we
will be making application to the Unified Family Court for an
order that Mr. Dolack be absolutely prohibited from entering
upon the farm property at Biggar. The lawyers for Mrs. Dolack
have already indicated that they would consent to such an
order. With their consent, and as we are applying for such an
order on behalf of our client, against our client, we expect to
have no problem in obtaining such an order. With such an
order in place, it is our opinion that the R.C.M.P. could arrest
Mr. Dolack if he in fact entered upon the farm property.
In this regard, we might advise that we have advised Mr.
Dolack of your department's concern for the safety of the wife
and her family, if he comes into the country. We have also
advised that if he is not given permission to enter the country, it
will in all probability have a fatal effect on his position in the
matrimonial property action. He has advised us that he has
absolutely no intentions of jeopardizing his matrimonial prop
erty action by approaching the wife's property or family.
On the basis of all of the above, it is our opinion that we have
now sufficiently dealt with all of the concerns raised by the
Department of Immigration about admitting Mr. Dolack to the
country. We believe we have also demonstrated the importance
of Mr. Dolack obtaining the Minister's Permit. Would you
please reconsider your position and advise whether you can now
give Mr. Dolack permission to enter the country. Due to Mr.
Dolack's occupation, being a trucker in the United States, he is
highly mobile. But, he may have to come a great distance to get
to Saskatoon in time for the Examination for Discovery. Thus,
we must have a decision on this matter no later than Friday,
March 6th, 1981.
If you have questions or comments, please do not hesitate to
contact our office. We trust this will be satisfactory to you and
look forward to hearing from you in the near future.
In reply, Vanderguard, Chief, Enforcement,
Employment and Immigration Canada, Regina,
Saskatchewan, under date of March 6, 1981,
wrote to Kovatch as follows:
This is in response to your letter dated February 26, 1981
concerning your client, Henry John DOLACK.
The information which you provided to me with this letter was
referred to our national headquarters for consideration along
with the personal representations which you made on behalf of
your client in mid-February, 1981.
I have now been advised by our national headquarters that
following a full review of this case, it has been decided not to
grant a permit for your client's return to Canada for the
Examination for Discovery March 16, 1981. I know this infor
mation will be disappointing to you and your client and I regret
that we are unable to assist you in this regard. [Emphasis
added.]
Subsequent thereto a statement of claim was
issued in the Federal Court of Canada, Trial Divi
sion, between Henry John Dolack, as plaintiff, and
the Minister of Manpower and Immigration, as
defendant, claiming the following relief:
(a) An Order that the Minister of Manpower and Immigra
tion grant sufficient permits to the Plaintiff to allow him to
enter Canada for the purpose of attending regularly con
stituted Court proceedings in the Unified Family Court of
Saskatchewan, and also for the purpose of instructing coun
sel in the conduct of the Unified Family Court Action;
(b) Damages for the unlawful refusal to grant the necessary
permits to admit the Plaintiff to Canada to have access to the
Saskatchewan Court System, and to conduct his action
before the Unified Family Court of Saskatchewan.
The statement of claim bears a filing stamp
carrying date of March 12, 1981. On March 16,
1981, a notice of motion was filed on behalf of
Dolack:
... for an interim order commanding the Minister of Manpow
er and Immigration to issue the Plaintiff such permits as may
be necessary to allow him to enter Canada for the purpose of
instructing his counsel and conducting his defence in an action
before the Unified Family Court in Saskatchewan.
Upon the following grounds:
(1) That the Minister of Manpower and Immigration's refusal
to grant the Plaintiff permits to enter Canada have denied him
access to a Provincial Court in Saskatchewan, thereby depriv
ing him of his enjoyment of property without due process of
law, contrary to Section 1(A) of the Canadian Bill of Rights;
(2) That the Minister of Manpower and Immigration's con
tinued refusal to grant the Plaintiff a permit to enter Canada,
have denied him a right of access to a Provincial Court in
Saskatchewan, and have denied him a right to a fair hearing in
accordance with the principles of fundamental justice for the
determination of his rights and obligations, contrary to Section
2(E) of the Canadian Bill of Rights.
From here on I propose, where convenient, to
refer to Dolack as plaintiff and the Minister as
Minister or defendant, interchangeably.
In his argument in support of the motion for the
interim order commanding the Minister to issue
the plaintiff such permits as may be necessary to
allow him to, enter Canada for the purpose of
instructing his counsel and conducting his defence
in the action before the Unified Family Court in
Saskatchewan, plaintiff's counsel argued firstly
that the Minister's refusal to grant the permit was
contrary to sections 1(a) and (b) and 2(e) of the
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C.
1970, Appendix III], which read:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of the law;
(b) the right of the individual to equality before the law and
the protection of the law;
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
Section 37(1)(a) and (4) of the Immigration
Act, 1976 reads as follows:
37. (1) The Minister may issue a written permit authorizing
any person to come into or remain in Canada if that person is
(a) in the case of a person seeking to come into Canada, a
member of an inadmissible class, or
(4) The Minister may at any time, in writing, extend or
cancel a permit.
It is clear plaintiff, being a member of an inad
missible class, was given a limited permit under
section 37(1)(a), authorizing him to come into and
remain in Canada until January 18, 1981.
Plaintiff returned to the United States of
America in December 1980, according to
paragraph 6 of his statement of claim, which
reads:
As the Plaintiff could not lawfully obtain employment in
Canada, he returned to the United States of America in
December, 1980, where he has since been employed.
I am satisfied the provisions of sections 1(a) and
(b) and 2(e) apply only to persons living in Canada
and not to a person living out of Canada.
Plaintiff's counsel also argued that plaintiff
acquired certain rights after he was admitted to
Canada, referring to his claimed interest in the
matrimonial property and equipment in Saskatch-
ewan and by reason thereof fettered the Minister's
discretion to refuse plaintiff entry into Canada,
thus denying plaintiff access to the Unified Family
Court. In support of that, he cited section 4 of The
Matrimonial Property Act:
4. Where one spouse has a right of possession with respect to
a matrimonial home or household goods, both spouses are, as
between themselves, equally entitled to the right of possession
subject to:
(a) section 43;
(b) any order made pursuant to section 5, 6 or 8 whereby one
spouse is given possession of the matrimonial home or
household goods, as the case may be, to the exclusion of the
other;
(c) any other order made under this Act, unless the court
directs otherwise;
(d) any other order pertaining to the possession of the
matrimonial home or household goods that was made by a
court of competent jurisdiction before the coming into force
of this Act;
(e) any interspousal contract or, where the court thinks fit,
any other written agreement between the spouses.
Section 43, referred to in section 4, reads:
43. No provision of this Act vests any title to or interest in
any matrimonial property of one spouse in the other spouse,
and the spouse who owns the matrimonial property may,
subject to subsection 18(2) and sections 28 and 50, any inter-
spousal contract and any order of a court made under this Act,
sell, lease, mortgage, hypothecate, repair, improve, demolish,
spend or otherwise deal with or dispose of the property as if this
Act had not been passed.
I find no substance to this argument. The mere
fact that a non-resident of Canada has an interest
in property or claim to interest in property of
whatever nature in Canada does not affect the
Minister's right to refuse an entry permit, if the
applicant is a member of an inadmissible class, as
is the case of Dolack. His counsel cited a number
of cases including Attorney General of Canada v.
Bliss [1978] 1 F.C. 208; and Minister of Man
power and Immigration v. Hardayal [1978] 1
S.C.R. 470. None of the cases has any application
here.
In addition to the reasons given earlier regard
ing the inapplicability of the provisions of the
Canadian Bill of Rights in the within case, I
would point out that the decision of the Minister is
an administrative one altogether within his discre
tion and, accordingly, the sections of the Canadian
Bill of Rights earlier quoted do not apply. See In
re McCaud (1964) 43 C.R. 252.
On the question of the Minister's discretion and
whether he exercised it judicially, at the hearing I
queried counsel about the absence of written rea
sons for the Minister's decision. Counsel for the
Minister stated he was quite prepared to advise the
Court of said reasons and that, in fact, counsel for
the plaintiff was fully aware of the reasons. At
that point counsel for plaintiff intimated he was
not concerned about the Minister's reasons in
arriving at his decision and was not making an
issue of it.
Further, in his letter of March 6, 1981 to
Kovatch, already referred to, Vanderguard wrote
in part:
I have now been advised by our national headquarters that
following a full review of this case, it has been decided not to
grant a permit for your client's return to Canada for the
Examination for Discovery March 16, 1981. [Emphasis added.]
I conclude, accordingly, the Minister considered
all the facts carefully and fairly and exercised his
discretion judicially.
A further argument advanced by plaintiff's
counsel was that the Minister's decision offended
against the United Nations Convention [Relating
to the Status of Refugees]. This question was dealt
with in Minister of Employment and Immigration
v. Hudnik [1980] 1 F.C. 180, an appeal from the
Trial Division ([1979] 2 F.C. 82), ordering the
appellant (Minister) to process respondent's
application for refugee status. The judgment of the
Federal Court of Appeal was delivered by Pratte J.
who, at page 181, said:
The judgment of the Trial Division, as I understand it, is
based on the proposition that both the United Nations Conven
tion Relating to the Status of Refugees and the Immigration
Act, 1976 imposed on the appellant the obligation to consider
the respondent's application. This proposition, in my view, is ill
founded.
The United Nations Convention is not, as such, part of the
law of Canada and it clearly does not impose any duty on the
appellant.
and in Minister of Manpower and Immigration v.
Fuentes [1974] 2 F.C. 331, Pratte J., who in this
case also delivered the judgment of the Court, said
at page 337:
The "United Nations Convention Relating to the Status of
Refugees" is only referred to once in the Immigration Appeal
Board Act; that is in the definition of the word "Convention" in
section 2. The only purpose of this definition is to clarify the
meaning of the phrase "refugee protected by the Convention"
which is used in sections 11(1)(c) and 15(1)(b).
and on page 338, he added:
Consequently, the fact that the Immigration Appeal Board
Act refers to the United Nations Convention Relating to the
Status of Refugees does not have the effect of incorporating
into Canadian domestic law the prohibition contained in that
Convention against deporting refugees. Accordingly, a deporta
tion order is not invalid merely by virtue of the fact that it was
made against a refugee protected by the Convention.
For all of the above reasons, the order applied
for in the notice of motion is refused.
At the completion of the argument, I advised
counsel that in view of all the circumstances
herein, I would award no costs, irrespective of my
decision. There will, accordingly, be no costs.
While not forming part of these reasons, I ven
ture to suggest that while it may entail additional
costs, it may well be the examination for discovery
of plaintiff could be held outside Canada and his
evidence, as well, taken on commission not neces
sarily at the same time.
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.