A-1435-83
Rudolph Hans Schaaf (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Mahoney and
Hugessen, JJ.—Winnipeg, January 11; Ottawa,
February 1, 1984.
Jurisdiction — Federal Court of Appeal — Adjudicator
erring in law by refusing to accept applicant's admission of
allegation and by not giving applicant opportunity to present
evidence and make submissions contrary to ss. 32 and 34 of
Regulations — Applicant should not complain since
Adjudicator's failure to proceed strictly brought about by
applicant's admission — Errors not affecting outcome of
inquiry given admission — S. 28 Federal Court Act attributive
of jurisdiction — Court having discretion to set aside decisions
offending in stated way but not obliged to do so — Inconse
quential errors not affecting outcome of inquiry not committed
"in making" decision pursuant to s. 28(1)(b)— S. 28 operating
with s. 18 which deals with discretionary remedies of preroga
tive writs — Considerations leading courts to hold these
remedies discretionary applying to s. 28 remedy — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 28, 52(a)
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(2)(e), 30(2)
— Immigration Regulations, 1978, SOR/78-172, ss. 32(1),
34(1),(2).
Immigration — Adjudicator erring in law by refusing to
accept applicant's admission of allegation and by not giving
opportunity to present evidence and make submissions as per
ss. 32 and 34 of Regulations — Admission evidence upon
which Adjudicator might act pursuant to s. 30(2) Immigration
Act, 1976 — Application to set aside deportation order refused
as errors procedural irregularity of no consequence — Immi
gration Act, 1976, S.C. 1976-77, c. 52, ss. 27(2)(e), 30(2) —
Immigration Regulations, 1978, SOR/78-172, ss. 32(1),
34(1),(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
This is an application to review and set aside a deportation
order. After informing the applicant that he would have an
opportunity to present evidence and make submissions as to the
form of order to be made, the Adjudicator at the inquiry
refused to accept the applicant's admission of the allegation
against him but made the deportation order without giving the
applicant the opportunity to present evidence or make submis
sions. It is alleged that the Adjudicator erred in law because he
failed to follow the procedural steps established by subsections
32(1) and 34(2) of the Regulations. If so, the issue is whether
the Court, having found an error in law, is obliged to set aside
the decision even though the error was inconsequential and the
decision would necessarily have been the same if the error had
not occurred.
Held, the application is dismissed.
Per Thurlow C.J.: The failure of the Adjudicator to proceed
strictly was brought about by the conduct of the applicant in
indicating that the allegation was not contested. Such failure is
thus not a matter of which the applicant should now be heard
to complain. The case of Copeland v. Minister of Employment
and Immigration in which the Court set aside a deportation
order because the Adjudicator failed to observe subsection
34(1) is distinguishable because there no admission of the truth
of the allegation had been made.
Per Hugessen J. (Mahoney J. concurring): The Adjudicator
erred in law when he said that the applicant could not admit
the allegation made against him. Such an admission is evidence
upon which an adjudicator is entitled to act pursuant to subsec
tion 30(2) of the Immigration Act, 1976. He also erred in not
giving the applicant an opportunity to present evidence and to
make submissions as provided for in the Regulations. However,
these errors did not have any effect upon the outcome of the
inquiry. In light of the applicant's admission there is no evi
dence that would cause the Adjudicator to render a decision
different from the one he rendered. Nothing in the words used
in subsection 28(1) of the Federal Court Act makes them other
than attributive of jurisdiction. They create in the Court power
to set aside decisions which offend in one of the stated ways,
but do not impose a duty to do so in every case. This appears
also from the permissive wording of section 52. While the
statute creates certain rights for the litigant, it does so by
granting powers to the Court and the latter must remain the
master of whether or not they are to be exercised in any
particular case. Individually and cumulatively inconsequential
errors can have had no effect upon the outcome of the inquiry.
In the language of paragraph 28(1)(b), they are not errors
committed "in making" the decision. Also, section 28 must be
read in tandem with section 18, which deals with the traditional
prerogative writs, which remain discretionary remedies. The
same considerations which have led the courts to hold these
remedies to be discretionary apply with equal force to the
recourse under section 28. A proper exercise of that discretion
in this case must lead to a refusal of the remedy sought on the
ground that the error invoked is a simple procedural irregulari
ty of no consequence.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Copeland v. Minister of Employment and Immigration,
judgment dated January 10, 1984, Federal Court—
Appeal Division A-1171-83, not yet reported; Husson v.
Laplante, [1977] 2 F.C. 393 (C.A.).
REFERRED TO:
Harelkin v. University of Regina, [1979] 2 S.C.R. 561;
Quinn (T.E.) Truck Lines Ltd. v. Snow, [1981] 2 S.C.R.
657; P.P.C. Industries Canada Ltd. v. A.G. of Canada,
[1976] 2 S.C.R. 739; Municipal District of Sturgeon No.
90 v. Alberta Assessment Appeal Board (1972), 3
W.W.R. 455 (S.C.C.), affirming (1971), 4 W.W.R. 584
(Alta. C.A.), affirming (1971), 3 W.W.R. 185 (Alta.
S.C.).
COUNSEL:
Christian Malburg for applicant.
Brian H. Hay for respondent.
SOLICITORS:
McJannet, Weinberg, Riley, Adam, Win-
nipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application to review
and set aside a deportation order made against the
applicant on the ground that he was a person
described in paragraph 27 (2)(e) of the Immigra
tion Act, 1976 [S.C. 1976-77, c. 52] who had
entered Canada as a visitor and remained therein
after the period he was authorized to stay in
Canada had expired.
Of the several grounds urged in support of the
application, the only one warranting consideration
was that the Adjudicator failed to follow the pro
cedural steps established by subsections 32(1)'
and 34(2) 2 of the Immigration Regulations, 1978
[SOR/78-172].
Early in the inquiry the Adjudicator had
explained to the applicant and his counsel the
allegation and the purpose of the inquiry as well as
the possible dispositions of the matter that might
ensue and the applicant had answered that he
understood the reason for the inquiry and its possi
ble consequences for him.
At that point the transcript reads:
' 32. (1) When the case presenting officer has concluded
prèsenting the evidence referred to in subsection 31(1), the
person concerned or his counsel shall be given a reasonable
opportunity to present such evidence as he deems proper and
the adjudicator allows.
2 34. (2) After the evidence has been presented at an inquiry,
the case presenting officer and the person concerned or his
counsel shall be given a reasonable opportunity to make such
submissions as they deem proper in the circumstances and the
adjudicator allows.
ADJUD. Counsel, have you dealt with Immigration In
quiries in the past?
COUNSEL No, I have not.
ADJUD. For your benefit and the benefit of Mr. Schaaf, I
will briefly explain how we will proceed today.
We will break the Inquiry down into two parts.
Initially, we deal only with the facts of your case
as they relate to the allegation in question. It is
the responsibility of the Immigration Depart
ment to prove this case to me and they do so by
presenting evidence. Evidence at an Immigration
Inquiry is most often in the form of testimony
but it may be in other forms such as documents.
Mr. Cowie will present his evidence. You and
your counsel will have an opportunity to cross-
examine or to look at anything he presents, and
comment on it. In turn, you will also have an
opportunity to present evidence on your own
behalf.
After all the evidence is in each party may make
a submission on how they believe the evidence
relates to the allegation in question. After all the
evidence is in I will make a decision on the
allegation and, if necessary, we would proceed to
the second part of the Inquiry which would be
how you have to leave. The second part follows
the same procedural order as the first part, the
Immigration Commission going first and you
responding in presenting any evidence that you
may have.
Do you understand?
SUBJECT Yes.
ADJUD. Counsel, any questions?
COUNSEL No, ...
ADJUD. Mr. Cowie, are you prepared to proceed?
C.P.O. Yes, Mr. Adjudicator, ...
COUNSEL ... except, Mr. Adjudicator, I have been
informed briefly about Inquiries in general, of
this type, and I understand the allegation and I
don't think there is any use in disputing the
allegation. I think it is clear and we are prepared
to admit that he overstayed his visit.
SUBJECT Yes.
COUNSEL If that would aid the disposition of the case.
ADJUD. I understand what you are doing. Unfortunately,
under the Immigration Act there is no manner in
which you can simply admit an allegation. I can
only base my decision on evidence which I see or
hear at the Inquiry. What you are suggesting is
not uncommon. In my opinion the easiest way
out of resolving it is to simply proceed in the
normal manner and Mr. Cowie would direct his
evidence accordingly.
COUNSEL Okay.
The applicant was then sworn and, in answer to
questions by the Case Presenting Officer, gave
evidence supporting the truth of the allegation.
The transcript continues:
C.P.o I have no further questions.
ADJUD. Counsel, anything on cross-examination regard
ing the allegation?
COUNSEL No, Mr. Adjudicator.
ADJUD. Mr. Schaaf, as I explained to you earlier, this
Inquiry has been held because the Immigration
Commission is of the opinion that you were in
violation of the Immigration Act and that you
should, therefore, be removed from Canada. You
have testified that you are not a Canadian citi
zen or a permanent resident of Canada and I
can, therefore, conclude that you do not have a
right to remain in Canada and that you may be
subject to the provisions of subsection 27(2) of
the Immigration Act.
There has been a single allegation made against
you at this Inquiry in that you entered Canada
as a visitor and you remained therein after you
ceased to be a visitor.
Your testimony has supported the allegation in
that you stated that you came into Canada on
the 15th of May, 1983 at Toronto International
Airport as a visitor and were authorized to
remain until the 15th of August, 1983. You have
not received an extension of your status and you
have remained continuously in Canada since
your initial arrival. You, therefore, ceased to be
a visitor when you remained in Canada longer
than [sic] for which you were authorized and,
therefore, are a person who is described in para
graph 27(2)(e) of the Immigration Act in that
you entered Canada as a visitor and remained
therein after you ceased to be a visitor.
Do you understand?
SUBJECT Yes, Sir.
ADJUD. It is, therefore, necessary to continue on to the
second point of the Inquiry which is to determine
how you will leave Canada ....
The Adjudicator thereupon proceded to hear
evidence and argument as to whether a departure
notice should be issued and ultimately determined
that a deportation order should be made.
It will be observed that neither the applicant nor
his counsel was asked if he wished to present
evidence nor was either asked if he wished to make
submissions before the Adjudicator expressed his
reasons and announced his finding as to the truth
of the allegation. Moreover, the Adjudicator had
not followed the procedure he had outlined earlier
and which he had indicated would be followed
even after counsel's interruption.
While the record does not show that Regulations
32(1) and 34(2) were complied with before the
Adjudicator gave his reasons and expressed his
conclusion on the allegation of overstaying, I am of
the opinion that the failure of the Adjudicator to
proceed strictly was brought about by the conduct
of the applicant and his counsel in indicating that
the allegation was not contested. Such failure is
thus not a matter of which the applicant should
now be heard to complain.
Counsel for the applicant relied on the judgment
pronounced on January 10, 1984, in Copeland v.
Minister of Employment and Immigration, Feder
al Court Appeal Division, A-1171-83, not yet
reported, by which the Court set aside a deporta
tion order where the Adjudicator had failed to
observe subsection 34(1). In that case, however, no
concession as to the truth of the allegation had
been made . or offered before the decision that it
was true was given and the Court was of the
opinion that there had been no waiver of the
applicant's right. The case is thus not at all on a
par with the present.
I would dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: The issue in this section 28
application is whether this Court, once it has
found an error in law, is obliged to set aside the
decision attacked even though the error was
inconsequential and the decision would necessarily
have been the same if the error had not occurred.
It is my view that, on a proper reading of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10], we are not so obliged. I am further of the
opinion that the recourse provided by section 28 of
the Federal Court Act is one in which the Court
retains the discretion to grant or withhold the
relief sought.
The matter arises in this way. The applicant,
Mr. Schaaf, came to Canada as a visitor. He was
authorised to stay for three months. He overstayed
that period and therefore became a person
described in paragraph 27(2)(e) of the Immigra
tion Act, 1976. A report was made and an inquiry
held before an Adjudicator. As commonly happens
in these matters, the inquiry took place in two
stages, the first being to determine if Mr. Schaaf
was a person described in subsection 27(2) and,
the second, to determine, pursuant to subsection
32(6), whether he should be deported or allowed to
depart. The second stage, of course, is only
required in the event that the first stage reaches a
conclusion adverse to the person concerned. While
the Act does not require that the inquiry be held in
two stages, the practice of doing so is clearly a
convenience and allows the issues to be dealt with
in a rational and orderly fashion by the
Adjudicator.
At the inquiry, Mr. Schaaf was represented by a
lawyer. After some opening preliminaries, during
which the Adjudicator indicated his intention to
proceed in two stages in the manner that I have
outlined above, the following exchange took place:
COUNSEL. ... except, Mr. Adjudicator, I have been
informed briefly about Inquiries in general, of
this type, and I understand the allegation and I•
don't think there is any use in disputing the
allegation. I think it is clear and we are prepared
to admit that he overstayed his visit.
SUBJECT Yes.
COUNSEL. If that would aid the disposition of the case.
ADJUD. I understand what you are doing. Unfortunately,
under the Immigration Act there is no manner in
which you can simply admit an allegation. I can
only base my decision on evidence which I see or
hear at the inquiry. What you are suggesting is
not uncommon. In my opinion the easiest way
out of resolving it is to simply proceed in the
normal manner and Mr. Cowie would direct his
evidence accordingly.
The Case Presenting Officer then called Mr.
Schaaf as his witness and asked and received
answers to fifteen questions. These dealt with Mr.
Schaaf s name, date and place of birth, date of
arrival and length of stay in Canada. They were
directed to establish, and did establish, that Mr.
Schaaf had overstayed as a visitor. At the conclu
sion of the questioning by the Case Presenting
Officer, the Adjudicator asked Mr. Schaaf s
lawyer if he wished to cross-examine and, upon
receiving a negative reply, immediately went on to
render his decision on the first stage and to find
that Mr. Schaaf was a person described in para
graph 27(2)(e) of the Immigration Act, 1976.
In my view, the Adjudicator erred in law when
he said that Mr. Schaaf could not admit the
allegation made against him. Subsection 30(2) of
the Immigration Act, 1976 provides:
30....
(2) An adjudicator may at an inquiry receive and base his
decision upon evidence adduced at the inquiry and considered
credible or trustworthy by him in the circumstances of each
case.
An admission of the type offered by counsel and
confirmed by Mr. Schaaf himself is evidence upon
which an adjudicator is entitled to act.
More importantly, the Adjudicator erred in law
when, after deciding to hear testimony, he did not
give an opportunity to Mr. Schaaf and his lawyer
to present evidence and to make submissions. The
Adjudicator's obligations in this respect are very
specifically set forth in subsections 32(1) and
34(2) of the Immigration Regulations, 1978,
which read as follows:
32. (1) When the case presenting officer has concluded
presenting the evidence referred to in subsection 31(1), the
person concerned or his counsel shall be given a reasonable
opportunity to present such evidence as he deems proper and
the adjudicator allows.
34....
(2) After the evidence has been presented at an inquiry, the
case presenting officer and the person concerned or his counsel
shall be given a reasonable opportunity to make such submis
sions as they deem proper in the circumstances and the
adjudicator allows.
It is, in my opinion, clear beyond dispute, how
ever, that these errors could not and did not have
any effect upon the outcome of the inquiry. In the
light of the admission made by his counsel and
confirmed by Mr. Schaaf himself, there is simpy
no evidence and no submission which human
ingenuity could conceive that would cause the
Adjudicator to render a decision different from the
one he, in fact, rendered.
Subsection 28 (1) of the Federal Court Act gives
to this Court its jurisdiction to review and set aside
decisions such as the one here under study. The
text is as follows:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
In my view, nothing in the words used makes them
other than attributive of jurisdiction. They create
the power in the Court to set aside decisions which
offend in one of the stated ways but do not impose
a duty to do so in every case.
This appears also, I would suggest, from the
wording of section 52, which describes the disposi
tions which are open to the Court on a section 28
application. The opening words are: "The Court of
Appeal may ...." They are clearly permissive and
nowhere is there a suggestion that the Court must
act whenever it finds an error of law.
This is not to say that the Court is entitled to
decline to exercise the jurisdiction which is given
to it by sections 28 and 52, but simply that there is
nothing in the language of the statute obliging the
Court to grant the remedy sought where it is
inappropriate to do so. While it can no doubt be
argued that the statute creates certain rights for
the litigant, it does so by granting powers to the
Court and the latter must remain the master of
whether or not they are to be exercised in any
particular case.
Any other view would, it seems to me, lead to
absurdities which could not have been in the con
templation of the Legislature. This case provides a
good example: I have characterised as an error in
law the Adjudicator's view that Mr. Schaaf's
admission of the facts alleged against him was not
evidence which he was entitled to take into
account. If this had been the only error and if the
Adjudicator, after hearing the testimony offered
by the Case Presenting Officer, had, in compliance
with sections 32 and 34 of the Regulations, given
an opportunity to Mr. Schaaf and his counsel to
lead evidence and make submissions, it could not
seriously be argued that the decision would have to
be set aside because of such error. The situation
does not change, in my opinion, because other
errors equally inconsequential are added to the
first. Individually and cumulatively they can have
had no effect upon the outcome of the inquiry. In
the language of paragraph 28(1)(b), they are not
errors committed "in making" the decision.
The same result can also be arrived at by a
somewhat different process of reasoning which I
find equally appealing. Briefly it is that the
remedy provided by section 28 of the Federal
Court Act cannot be treated as if it existed in a
vacuum and had sprung full-blown and newly
invented from the mind of Parliament. Section 28,
by its very terms, must be read in tandem with
section 18, which deals with the traditional pre
rogative writs, including certiorari and man-
damus. Much of the language of section 28 (and
some would say this is its principal defect) is the
language developed by the cases with regard to
those writs. In the light of the majority decision of
the Supreme Court of Canada in the case of
Harelkin v. University of Regina, [1979] 2 S.C.R.
561, it is not open in this Court to dispute that the
writs of certiorari and mandamus are discretion
ary remedies at least as regards questions of proce
dural fairness. Even in those jurisdictions where
the old procedure of the prerogative writs has been
wholly or partly codified (see, for instance,
Ontario, Judicial Review Procedure Act, R.S.O.
1980, chapter 224; Quebec, Code of Civil Proce
dure, article 846), the remedy has remained dis
cretionary: Quinn (T.E.) Truck Lines Ltd. v.
Snow, [1981] 2 S.C.R. 657; so also under section
18 of the Federal Court Act, where the remedy
sought was not a prerogative writ but "its modern
equivalent, the motion to quash" (see P.P.G.
Industries Canada Ltd. v. A.G. of Canada, [1976]
2 S.C.R. 739, at page 749). In my view, the same
considerations which have led the courts to hold
these remedies to be discretionary apply with equal
force to the recourse under section 28 of the
Federal Court Act. A proper exercise of that
discretion in the present case must lead to a refusal
of the remedy sought on the ground that the error
invoked is a simple procedural irregularity of no
consequence. 3
In only wish to add that I am not aware of any
reported case in this Court which takes a view
contrary to that expressed above. While Husson v.
Laplante, [1977] 2 F.C. 393 (C.A.), may appear
to do so, a close reading of the reasons reveals that
the Court was dealing with an application to quash
for want of jurisdiction pursuant to paragraph
52(a) of the Federal Court Act: since it was found
that the Court in fact had jurisdiction, it was quite
accurate to speak of there being no discretion in
the matter.
For all these reasons, I would dismiss the
application.
MAHONEY J.: I agree.
On the question of the immateriality of an error of law
being grounds for refusing certiorari, see Municipal District of
Sturgeon No. 90 v. Alberta Assessment Appeal Board (1971),
3 W.W.R. 185 (Alta S.C.). This judgment was approved at
(1971), 4 W.W.R. 584 (Alta. C.A.) and (1972) 3 W.W.R. 455
(S.C.C.), but this point was apparently not taken on appeal.
See also Reid, Administrative Law and Practice, page 357 and
Supplement 1976, page 55.
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.