A-899-84
Minister of Employment and Immigration and
W. Willoughby, in his capacity as Adjudicator
under the Immigration Act, 1976 (Appellants)
(Respondents)
v.
Danuta Widmont (Respondent) (Applicant)
Court of Appeal, Urie, Mahoney and MacGuigan
JJ.—Toronto, October 25; Ottawa, December 3,
1984.
Immigration — Appeal from order prohibiting Adjudicator
from issuing deportation order pending disposition of applica
tion for ministerial permit under s. 37(1) of Immigration Act.
1976 — Respondent seeking authorization to remain in
Canada after visa expiry — S. 37(2) precluding Minister from
issuing permit to person subject of deportation — Appeal
allowed — No provision under Act or Regulations for
adjournment of inquiry in cases of s. 37 applications — Prior
cases holding that refusal to adjourn not vitiating deportation
order — Authorities distinguishing Supreme Court decision in
Ramawad and restricting latter's application to facts of par
ticular case — Court bound by its previous decisions —
Erroneous statements of law, if any, to be corrected by Parlia
ment or Supreme Court — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 27, 29(5), 37, 43(1), 45(1), 115, 123 —
Immigration Regulations, 1978, SOR/78-172, ss. 27(3), 35(1)
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18,
28 — Interpretation Act, R.S.C. 1970, c. I-23, s. 26(2).
Judges and courts — Stare decisis — Appeal from order
prohibiting Adjudicator from issuing deportation order pend
ing disposition of application for ministerial permit allowing
respondent to remain in Canada — Whether Court bound by
Supreme Court decision in Ramawad — Court to abide by its
previous decisions unless strong reason to contrary — Sound
administration of justice so requires — Departure from previ
ous judgments damaging to law — Federal Court of Appeal's
decision in Louhisdon followed — Louhisdon restricting
application of Ramawad to own facts — Louhisdon not
improperly distinguishing Ramawad — Appeal allowed.
The respondent legally entered Canada from Poland on a
four-day visitor's visa. Unaware of this limitation, she remained
in Canada after the expiry of her visa. A report was made and
an inquiry begun but immediately adjourned. Her counsel
thereupon requested a Minister's permit under subsection 37(1)
of the Immigration Act, 1976 authorizing her to remain in
Canada. Because it appeared that the respondent would not be
granted an adjournment upon resumption of the inquiry, her
counsel applied to the Trial Division for an order prohibiting
the Adjudicator from rendering a decision on deportation pend
ing the disposition of her request for a ministerial permit. The
application was granted. The question in this appeal is whether
a decision on deportation should be rendered by an adjudicator
in an inquiry when to do so would deprive the Minister of his
power to issue a permit under subsection 37(1) of the Act.
Held (MacGuigan J. dissenting), the appeal should be
allowed.
Per Mahoney J.: Neither the Immigration Act, 1976 nor the
Regulations make express provision for the adjournment of an
inquiry to allow the Minister to deal with a request for a permit
under subsection 37(1), although they do require adjournments
in other specific circumstances. As to Regulation 35(1) which
confers on an adjudicator the general power to adjourn "for the
purpose of ensuring a full and proper inquiry" it cannot be
invoked, the currently-accepted view being that an adjudicator
is not required to adjourn for that purpose.
The Supreme Court of Canada considered a situation similar
to the one at issue in Ramawad v. Minister of Manpower and
Immigration. In that case, the Supreme Court held that a
deportation order had been vitiated by the special inquiry
officer's usurpation of the Minister's discretionary power under
former paragraph 3G(d) to determine whether special circum
stances existed permitting the Minister to waive the prohibition
attached to employment visas. (The legislation at that time
prohibited the issuance of an employment visa to an applicant
who had violated the conditions of a previous visa.) The Court
found that an application under paragraph 3G(d) seeking the
opinion of the Minister suspended the authority of the special
inquiry officer to issue a deportation order, and that the only
course open was to adjourn the inquiry pending disposition of
the application. The Ramawad decision was considered by this
Court in the Louhisdon case but found inapplicable. It was
argued, in Louhisdon, that the making of a deportation order
was illegal because it deprived the applicant of the option of
obtaining a permit under section 8 of the old Immigration Act.
A majority of this Court held (as it also did in the Oloko case)
that section 8 did not create any right in favour of an applicant
who benefits from the exercise of the Minister's power; and
that regardless of when it is made, a deportation order had the
effect of depriving an applicant of such an option.
The fact that the relief sought in Louhisdon was different
from that sought here does not result in any material distinc
tion. There is no supportable difference between an attack
under section 28 of the Federal Court Act on a deportation
order made after the refusal of an adjournment to permit the
disposition of an application for a ministerial permit, and an
attack, under section 18, on the refusal by an adjudicator to
adjourn itself. The question of the right to an adjournment is a
matter of substance, not a matter of fairness in the conduct of
an inquiry.
Since Louhisdon, this Court has consistently held that the
refusal to adjourn an inquiry to seek relief under section 37 or
115 of the Act did not vitiate a deportation order or a departure
notice. The exception to this consistent line of authorities is the
case of Tam v. Minister of Employment and Immigration
where a deportation order was set aside. The only direct
relevance of Tam to the instant case is the fact that it is
authority against the appellants' argument that the adjudicator
is not entitled to grant an adjournment: there is no doubt that
the Adjudicator herein could properly have granted the
adjournment sought.
A court may depart from its previous judgments if there is
"strong reason to the contrary", or as stated by McRuer
C.J.H.C. in R. v. Northern Elec. Co. et al., if there is some
indication that the Court failed to consider a statute or some
authority that ought to have been followed. However, the fact
that an intermediate court of appeal's declarations on the law
may be reviewed by the final court of appeal as well as altered
by legislation militates against it departing from its decisions.
Therefore, whether for reasons of judicial comity or stare
decisis, this Court must follow the Louhisdon decision. There is
no doubt that the Court therein fully considered the issue, and
chose to restrict the application of Ramawad to its own facts,
rather than to apply its principle more generally. It may have
been wrong. Only Parliament, indeed the Governor in Council,
is at liberty to alter the situation, and the Supreme Court, to
correct it.
Per Urie J.: This Court must abide by its former decisions:
the sound administration of justice so requires. It may depart
from its previous judgments only if it is convinced that the
earlier decisions are incorrect. This has been clearly established
in the Armstrong Cork Canada Ltd. case where the principles
set forth by the House of Lords with respect to the rule of stare
decisis in the Bristol Aeroplane case were referred to with
approval. To adopt the opposite view would be "damaging to
the law in the long term—though it would undoubtedly do
justice in the present case".
While there may be minor factual differences between the
Louhisdon case and the present one, they do not make them
distinguishable in any meaningful sense. Moreover, since it has
not been demonstrated that this Court in the Louhisdon case,
and in subsequent appeals which followed that case, failed to
properly distinguish the Ramawad decision, it cannot be said
that the Court's decisions were wrongly decided.
Per MacGuigan J. (dissenting): Whatever the obligation of
the Court may be in relation to its previous decisions, there is a
higher duty, that of applying the law as interpreted by the
Supreme Court of Canada in the Ramawad decision. This
Court has tended to limit the ratio decidendi of Ramawad to
the absence of any implied delegation of authority from the
Minister to a special inquiry officer in the case of employment
visas. The Ramawad decision cannot be so limited, since the
Supreme Court itself stated a broader ground for its decision,
when it held that the right to have the Minister decide whether
special circumstances existed was a matter of substance rather
than procedure. Such a decision cannot be limited to a mere
question of delegation.
Moreover, a result dependent on at least a prima facie case
for a ministerial permit does not necessarily run counter to the
Ramawad rule against delegation. Under section 123 of the
Act, the Minister's power of delegation extends broadly to
persons employed in the Public Service of Canada. However,
the breadth of this power is limited by appropriateness. It
would be unreasonable to infer that delegation to an adjudica
tor would be delegation to a "proper" person. The kind of
intervention sought by the respondent herein requires not only a
compassionate judgment but also a political one. It cannot be
supposed that the Minister would delegate even a prima facie
decision on such a matter to an adjudicator.
The'consequence of the adjudicator's refusal to adjourn is a
terminal one. Parliament must therefore be presumed to have
intended that an applicant should have a genuine opportunity
to obtain a Minister's permit before such an opportunity is
foreclosed by an order of deportation issued by a lower-level
official. To hold the contrary would make a mockery of justice.
It may be that the adjudicator's general power to adjourn under
Regulation 35(1) is not broad enough; however, subsection
26(2) of the Interpretation Act makes up for any deficiency in
that area.
Therefore, in the absence of any power in the adjudicator to
make a decision on behalf of the Minister, either prima facie or
final, a court cannot assume on a review the power to distin
guish meritorious from non-meritorious cases for ministerial
intervention. If such a power of distinction were to be located in
either an adjudicator or a court, it should only be by explicit
authorization of Parliament.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Louhisdon v. Employment and Immigration Canada,
[1978] 2 F.C. 589; 24 N.R. 457 (C.A.); Oloko v. Canada
Employment and Immigration et al., [1978] 2 F.C. 593;
24 N.R. 463 (C.A.); Murray v. Minister of Employment
and Immigration, [1979] 1 F.C. 518; 23 N.R. 344
(C.A.); Stalony v. Minister of Employment and Immi
gration (1980), 36 N.R. 609 (F.C.A.).
APPLIED:
Davis v. Johnson, [1978] 2 W.L.R. 553 (H.L.); Young v.
Bristol Aeroplane Co., [1944] K.B. 718; Armstrong Cork
Canada Limited, et al. v. Domco Industries Limited, et
al., [1981] 2 F.C. 510; 54 C.P.R. (2d) 155 (C.A.),
reversed [1982] 1 S.C.R. 907; Perry v. Public Service
Commission Appeal Board, [1979] 2 F.C. 57 (C.A.); The
Queen v. Pollock, [1984] C.T.C. 353 (F.C.A.); R. v.
Northern Elec. Co. et al., [1955] 3 D.L.R. 449 (H.C.
Ont.); Minister of Indian Affairs and Northern Develop
ment v. Ranville et al., [1982] 2 S.C.R. 518; 44 N.R.
616.
DISTINGUISHED:
Ramawad v. Minister of Manpower and Immigration,
[1978] 2 S.C.R. 375; 18 N.R. 69; Tam v. Minister of
Employment and Immigration, [1983] 2 F.C. 31; 46
N.R. 1 (C.A.).
CONSIDERED:
Nesha v. Minister of Employment and Immigration et
al., [1982] 1 F.C. 42 (T.D.); Minister of Manpower and
Immigration v. Tsakiris, [1977] 2 F.C. 236 (C.A.).
REFERRED TO:
Farrell v. Alexander, [1976] Q.B. 345; Martineau v.
Matsqui Institution Disciplinary Board (No. 2), [1980] 1
S.C.R. 602; Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [1979] 1 S.C.R. 311;
Laneau v. Rivard, [1978] 2 F.C. 319 (T.D.); Minister of
Manpower and Immigration v. Hardayal, [1978] 1
S.C.R. 470.
COUNSEL:
Thomas L. James for appellants (respond-
ents).
Mitchell Wine for respondent (applicant).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (respondents).
McCarthy & McCarthy, Toronto, for
respondent (applicant).
The following are the reasons for judgment
rendered in English by
URiE J.: I have had the advantage of reading
the drafts of the reasons for judgment of both
Mahoney and MacGuigan JJ. While I appreciate
the force of Mr. Justice MacGuigan's opinion, I
regret that I am unable to concur with it. Rather, I
find myself in complete agreement with both the
disposition of the appeal proposed by Mr. Justice
Mahoney and with the reasoning whereby he con
cluded that such a disposition was appropriate.
In the few words which I wish to add, I do not
propose to deal with the merits of the application
per se. I will confine myself to the problem created
when an intermediate appellate court, such as this
one, is confronted with a previous judgment or
judgments of the Court or of courts of co-ordinate
jurisdiction which may or may not accord with the
views of the panel hearing a later appeal. Mahoney
J. has dealt with the problem in a way with which
I agree so that my views will be merely supplemen
tary to his.
Whether the problem is labelled one of stare
decisis, judicial comity or "sound judicial adminis
tration" (as Jackett C.J. described it in the
Murray case referred to in Mahoney J.'s reasons
[infra, page 289]) is, in my view, of little signifi
cance. The applicable principles of law are largely
the same, as I see them. The leading authority in
England on the subject of stare decisis is Davis v.
Johnson, [1978] 2 W.L.R. 553 (H.L.). There the
House of Lords had to construe a section of the
Domestic Violence and Matrimonial Proceedings
Act 1976. In the Court of Appeal the preliminary
question which had to be determined was whether
the panel of the Court hearing that appeal was
bound by its previous decisions in two other cases.
The view of the majority was that it was not so
bound, though their individual reasons for so hold
ing were not identical. This cleared the way for a
fresh consideration of the meaning of the statutory
provision upon which there was a four to one
division of opinion.
Lord Diplock dealt with propriety of this course
of action and, although his was a dissenting opin
ion on the question of construction of the statute,
the four other law lords agreed with his view on
the preliminary question. At page 558 of the
report, Lord Diplock had this to say:
The application of the doctrine of stare decisis to decisions of
the Court of Appeal was the subject of close examination by a
Court of Appeal composed of six of its eight regular members
in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718. The
judgment of the court was delivered by Lord Greene M.R. Its
effect is summarised accurately in the headnote as being that:
"The Court of Appeal is bound to follow its own decisions
and those of courts of co-ordinate jurisdiction, and the `full'
court is in the same position in this respect as a division of
the court consisting of three members. The only exceptions to
this rule are:— (1) The court is entitled and bound to decide
which of two conflicting decisions of its own it will follow; (2)
the court is bound to refuse to follow a decision of its own
which, though not expressly overruled, cannot, in its opinion,
stand with a decision of the House of Lords; (3) the court is
not bound to follow a decision of its own if it is satisfied that
the decision was given per incuriam, e.g., where a statute or a
rule having statutory effect which would have affected the
decision was not brought to the attention of the earlier
court."
At pages 560 and 561 Lord Diplock expressed
his views as to why the reasoning in Bristol Aero
plane was correct. He said:
Of the various ways in which Lord Denning M.R.'s col
leagues had expressed the reasons for continuing to regard the
rule laid down in the Bristol Aeroplane case [1944] K.B. 718 as
salutary in the interest of the administration of justice, I select
those given by Scarman L.J. in Tiverton Estates Ltd. v. Wear-
well Ltd., [1975] Ch. 146, 172-173, in the Court of Appeal.
"The Court of Appeal occupies a central, but, save for a few
exceptions, an intermediate position in our legal system. To a
large extent, the consistency and certainty of the law depend
upon it. It sits almost always in divisions of three: more
judges can sit to hear a case, but their decision enjoys no
greater authority than a court composed of three. If, there
fore, throwing aside the restraints of Young v. Bristol Aero
plane Co. Ltd., one division of the court should refuse to
follow another because it believed the other's decision to be
wrong, there would be a risk of confusion and doubt arising
where there should be consistency and certainty. The appro
priate forum for the correction of the Court of Appeal's
errors is the House of Lords, where the decision will at least
have the merit of being final and binding—subject only to
the House's power to review its own decisions. The House of
Lords, as the court of last resort, needs this power of review:
it does not follow than an intermediate appellate court needs
it and, for the reasons I have given, I believe the Court of
Appeal is better without it, save in the exceptional circum
stances specified in Young v. Bristol Aeroplane Co. Ltd."
My own reason for selecting this passage out of many is
because in the following year in Farrell v. Alexander [1976]
Q.B. 345 Scarman L.J. again referred to it in dissociating
himself from the view, to which Lord Denning M.R. had by
then once again reverted, that the Court of Appeal was not
bound by any previous decision of its own that it was satisfied
was wrong. What Scarman L.J. there said, at p. 371, was:
.. I have immense sympathy with the approach of Lord
Denning M.R. I decline to accept his lead only because I
think it damaging to the law in the long term—though it
would undoubtedly do justice in the present case. To some it
will appear that justice is being denied by a timid, conserva
tive, adherence to judicial precedent. They would be wrong.
Consistency is necessary to certainty—one of the great objec
tives of law. The Court of Appeal—at the very centre of our
legal system—is responsible for its stability, its consistency,
and its predictability: see my comments in Tiverton Estates
Ltd. v. Wearwell Ltd. [1975] Ch. 146, 172. The task of law
reform, which calls for wide-ranging techniques of consulta
tion and discussion that cannot be compressed into the
forensic medium, is for others. The courts are not to be
blamed in a case such as this. If there be blame, it rests
elsewhere."
At page 562 he made this unequivocal pro
nouncement which was unanimously approved by
the remainder of the House:
In my opinion, this House should take this occasion to
re-affirm expressly, unequivocably and unanimously that the
rule laid down in the Bristol Aeroplane case [1944] K.B. 718 as
to stare decisis is still binding on the Court of Appeal.
The Bristol Aeroplane case was referred to with
approval by this Court in Armstrong Cork Canada
Limited, et al. v. Domco Industries Limited, et al.,
[1981] 2 F.C. 510, at page 517; 54 C.P.R. (2d)
155 (C.A.), at page 161. The Supreme Court of
Canada dismissed appeals from that judgment
[[1982] 1 S.C.R. 907] without reference to this
Court's comments on the necessity of following
decisions of the Court for reasons of sound judicial
administration. Reference was there made also to
Murray v. Minister of Employment and Immigra
tion, [ 1979] 1 F.C. 518 (C.A.) and to the excerpt
from the reasons for judgment of Jackett C.J.
quoted in my brother Mahoney's draft reasons.
The Court in Armstrong pointed out that the
Murray case had been followed by another panel
of this Court in Perry v. Public Service Commis
sion Appeal Board, [ 1979] 2 F.C. 57 (C.A.) in
which it was said that:
... despite doubts as to the correctness of the decision of the
Court in a previous case, for the reasons given in the Murray
case, "Sound judicial administration requires that the Court,
save in exceptional cases, follow its previous decisions." [Quot-
ing from the Armstrong case, at p. 518 F.C.]
The latest decision of this Court on the subject,
which I have found, is The Queen v. Pollock,
[1984] C.T.C. 353 (F.C.A.) in which Pratte J.
speaking for the Court said [at page 353]:
While we do not doubt that this Court has the power to
reconsider and refuse to follow one of its previous decisions, we
are of opinion that we should do so only when we are convinced
that our previous decision was wrong.
The foregoing review of relevant jurisprudence,
as I appreciate it, demonstrates that whether or
not this Court is bound by the principle of stare
decisis the same kind of reasoning applies. It is
beyond doubt that this Court will refuse to follow
its previous decisions only if it is convinced that
the earlier decisions are incorrect. Whether or not
all of the rules laid down in the Bristol Aeroplane
case for courts in which there is no question that
the principle of stare decisis applies may be adopt
ed in this Court where the applicability of that
principle may be doubtful, is a question which, in
the circumstances of this case, does not require an
answer.
The important fact to be borne in mind is that
the Louhisdon [Louhisdon v. Employment and
Immigration Canada, [1978] 2 F.C. 589 (C.A.)]
and Oloko [Oloko v. Canada Employment and
Immigration et al., [1978] 2 F.C. 593 (C.A.)]
cases fully considered the applicability of the deci
sion of the Supreme Court of Canada in Ramawad
v. Minister of Manpower and Immigration, [1978]
2 S.C.R. 375. The majority in each case distin
guished Ramawad and found that it was not appli
cable on the facts of those cases. While there may
be minor factual differences between Louhisdon,
Oloko and this case, they do not make them
distinguishable in any meaningful sense. That
being so and, as well, because I am not satisfied
that the Courts in the Louhisdon, Oloko and
Murray cases and in subsequent appeals which
followed those cases, failed properly to distinguish
the Ramawad case, I cannot say that I am con
vinced that they were wrongly decided.
I am, therefore, of the opinion that they must be
followed in this case. My views are aptly expressed
by adapting the words of Scarman L.J. in the
Farrell case, quoted by Lord Diplock in the Davis
case, supra, "... I have immense sympathy with
the approach of [MacGuigan J.]. I decline to
accept his lead only because I think it damaging to
the law in the long term—though it would
undoubtedly do justice in the present case."
Accordingly for those reasons and those of
Mahoney J., I would allow the appeal and dispose
of the matter in the manner proposed by him.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from an order
of the Trial Division which directed a writ of
prohibition to the appellants permitting an inquiry
under section 27 of the Immigration Act, 1976
[S.C. 1976-77, c. 52], to proceed but prohibiting
the rendering of a decision by the Adjudicator
pending the Minister making a decision as to the
issue of a permit under section 37 of the Act. The
appellants attack the order on two bases: firstly,
that the Trial Judge erred in law in interfering
with the conduct of the inquiry at all and, second
ly, that prohibition is not properly to be used as, in
effect, a stay of proceedings or interim injunction.
The respondent legally entered Canada from
Poland on June 21, 1983. She spoke neither
French nor English. The immigration officer spoke
no Polish. There was no interpreter. She learned
only later that she had been given a four-day
visitor's visa. Unaware of any limitation on her
stay in Canada, she visited relatives. She met
Tadeusz Widmont, a Canadian citizen. They were
married on September 24, 1983. She then sought
to clarify her status in Canada. Representations
were made to the Minister through a Member of
Parliament. The Commission had no record of her.
The Minister, through the M.P., urged her to
contact the nearest immigration office. Ensuing
upon an interview held March 5, 1984, the manag
er of the Commission's Mississauga office advised
her:
As it has been determined that the circumstances in this case
do not warrant special consideration a "Direction for Inquiry"
has been issued ....
The notice to appear at the inquiry issued April
19, 1984, and the inquiry commenced May 4. It
immediately adjourned to permit her counsel time
to prepare. It was to reconvene on June 12. On
June 1, her counsel delivered a request for a
Minister's permit pursuant to paragraph 37(1)(b).
As a result of a telephone conversation with the
case presenting officer, the respondent's counsel
formed the opinion that consent would not be
forthcoming to a request for an adjournment of the
inquiry pending disposition of the request for the
Minister's permit. He wrote to the case presenting
officer and the Adjudicator advising that, unless
notified to the contrary by June 6, he would
assume that such an adjourment would not be
granted on resumption of the inquiry. He was not
so notified and made the application to the Trial
Division. The order under appeal was made on
June 11.
The notice of motion and preceding communica
tions with the Commission, the case presenting
officer and the Adjudicator had also referred to
the application the respondent made to the Gover
nor in Council under subsection 115(2). However,
the prohibition order was directed only to section
37 and this appeal is concerned only with it.
The Act provides:
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
(b) in the case of a person in Canada, a person with respect
to whom a report has been or may be made under subsection
27(2).
(2) Notwithstanding subsection (1), a permit may not be
issued to
(a) a person against whom a removal order has been made
who has not been removed from Canada pursuant to such an
order or has not otherwise left Canada, unless an appeal
from that order has been allowed;
(b) a person to whom a departure notice has been issued who
has not left Canada; or
(c) a person in Canada with respect to whom an appeal made
pursuant to section 79 has been dismissed.
There appears no doubt that the report under
subsection 27(2) was well founded, the inquiry
properly ordered and that, unless the Adjudicator
is preempted, the outcome of the inquiry will
certainly be either the making of a removal order
or the issue of a departure notice. If that occurs
before the Minister decides whether or not to issue
the requested permit, he will, by virtue of either
paragraph 37(2)(a) or (b), be precluded from
issuing it to the respondent, presently a person
described in paragraph 37(1)(b).
The Act makes no express provision for the
adjournment of an inquiry to allow the Minister to
deal with a request for a permit under subsection
37(1). It does require adjournments in other cir
cumstances: by subsection 29(5), when the subject
is under the age of 18 or unable to appreciate the
nature of the proceedings, to permit designation of
a representative; by subsection 43(1), when the
subject claims to be a Canadian citizen and, by
subsection 45(1), when the subject claims to be a
Convention refugee. The Immigration Regula
tions, 1978 [SOR/78-172], also require the
adjudicator to adjourn the inquiry in specific cir
cumstances: by subsection 27(3), when he is not
satisfied as to prior compliance with specified
requirements of the Act and Regulations. Each of
the above provisions is mandatory. In the pre
scribed circumstances, the Adjudicator must
adjourn. None is in play here.
The Regulations also provide:
35. (1) The adjudicator presiding at an inquiry may adjourn
the inquiry at any time for the purpose of ensuring a full and
proper inquiry.
I think it fair to say that the currently accepted
view is that the Minister's consideration of wheth
er to issue a permit under subsection 37(1) has
nothing at all to do with ensuring a full and proper
inquiry and that, therefore, an adjudicator is not
required to adjourn for that purpose.
The Supreme Court of Canada considered a
similar situation in Ramawad v. Minister of Man
power and Immigration, [1978] 2 S.C.R. 375; 18
N.R. 69. There, under the previous legislation, a
non-immigrant had violated conditions of his
employment visa and had applied for a new visa
prior to the making of the direction for an inquiry.
The law prohibited an employment visa being
issued to an applicant who had, in circumstances
that pertained, violated the terms of a previous
employment visa. It also provided that such prohi
bition could be waived by the Minister if it should
not, in his opinion, be applied because of the
existence of "special circumstances". The special
inquiry officer, who had no authority to either
issue or refuse an employment visa nor to exercise
the Minister's discretion as to the existence of
special circumstances, determined that none exist
ed and that an employment visa could not be
issued. He proceeded to make a deportation order.
The Court decided that the deportation order was
vitiated by the special inquiry officer's usurpation
of the Minister's authority. The rationale for that
decision follows [at pages 383-384 S.C.R.]:
In purporting to exercise the Minister's authority under para.
3G(d) of the Regulations and in proceeding immediately there
after to issue a deportation order against the appellant, the
Special Inquiry Officer effectively denied the appellant his
right to have the Minister decide whether the special circum
stances envisaged in para. 3G(d) existed. Indeed, once the
deportation order had been issued, the Minister was by law
precluded from exercising any discretion in the matter because
of s. 8 of the Act which reads in part as follows:
"The Minister may issue a written permit authorizing any
person to enter Canada, or being in Canada, to remain
therein, other than
(a) a person under order of deportation who was not issued
such a written permit before the 13th day of November
1967, ..."
In other words, when the deportation order had been issued,
it was no - longer possible for the Minister to prevent the
appellant from being deported even if he felt that "because of
the existence of special circumstances", the application of para.
3D(2)(b) to the appellant should be waived; it must be noted
that, had such a waiver been given prior to the deportation
order being issued, the appellant would have qualified for an
employment visa since the application of para. 3D(2)(b) was
the only bar to the issue of such visa. This shows quite clearly
that we are dealing here with matters of substance rather than
of procedure.
To hold that the invalidity of the decision of the Special
Inquiry Officer as to the existence of special circumstances
under para. 3G(d) has no effect on the validity of the deporta
tion order would lead one to the untenable conclusion that a
Special Inquiry Officer could, through an improper exercise of
the Minister's authority under para. 3G(d), nullify the right of
a non-immigrant under said paragraph by preventing the Min
ister from exercising the discretion with which he was
entrusted.
In my view, the making of an application seeking the opinion
of the Minister pursuant to para. 3G(d) has the effect of
suspending the authority of the Special Inquiry Officer to issue
a deportation order, and the only possible course of action for
the Special Inquiry Officer under such circumstances is to
adjourn making his decision until such time as the Minister has
disposed of the application.
The Ramawad decision was considered by this
Court in Louhisdon v. Employment and Immigra-
tion Canada, [1978] 2 F.C. 589; 24 N.R. 457
(C.A.), to which the previous legislation also
applied. That judgment must be read together with
the same panel's judgment in Oloko v. Canada
Employment and Immigration et al., [1978] 2
F.C. 593; 24 N.R. 463 (C.A.) because of an odd
presentation. The two applications were heard at
the same sitting. The majority's reasoned judg
ment was rendered in Louhisdon and adopted by
reference in Oloko while the reasoned dissenting
judgment was rendered in Oloko and adopted by
reference in Louhisdon.
In Louhisdon, the non-immigrant had been ille
gally in Canada for some 8 years and had been
convicted of offences under the Criminal Code
[R.S.C. 1970, c. C-34]. During the course of the
inquiry the Adjudicator refused a request [at page
591 F.C.]
... that he adjourn the making of the deportation order and
refer the matter to the Minister, for a decision as to whether he
would issue a permit under section 8 authorizing applicant to
remain in Canada.
A deportation order was made and it was argued
that was illegal because it deprived the applicant
of "the option" of obtaining a permit under section
8 [of the Immigration Act, R.S.C. 1970, c. I-2]. A
comment in the contemporary decision of another
panel of this Court in Murray v. Minister of
Employment and Immigration, [1979] 1 F.C. 518;
23 N.R. 344 (C.A.) and a perusal of the dissenting
judgment in Louhisdon, lead me to conclude that,
in Louhisdon, the person concerned made his
application for a ministerial permit during the
course of the inquiry and that the application had
not been received by the Minister prior to the
making of the deportation order. The majority
held [at page 591 F.C.]:
In my view this argument is without merit. Section 8 of the
Immigration Act simply gives the Minister the power to grant a
permit; it does not create any right in favour of those who
might benefit from the exercise of this power. It is true that
making the deportation order had the effect of depriving appli
cant of the option of obtaining a permit from the Minister. This
does not, however, give applicant grounds for complaint. The
deportation order has this effect under the Act regardless of
when it is made. In my view, the decision of the Supreme Court
in Ramawad cannot help applicant. All that was decided in
that case, in my opinion, is that a person who is seeking an
employment visa under sections 3B et seq of the Immigration
Regulations, Part I, and who requests that his case be submit
ted to the Minister so that the latter may exercise the power
conferred on him by section 3G(d) of the Regulations, may not
be deported on the ground that he has no employment visa until
the matter has been put before the Minister.
The dissenting Judge, referring to the previously
quoted passage from Ramawad, said [in the Oloko
decision, at pages 600-601 F.C.]:
With great respect I am unable to see how this reasoning
does not apply to an application in the course of an inquiry that
a case be considered for a Minister's permit. There is in my
opinion as much of a "substantive right" to obtain a decision as
to whether a Minister's permit will be granted in a particular
case as there is to obtain the Minister's decision as to whether a
failure to comply with the conditions of an employment visa
should be waived on the ground of special circumstances. Both
decisions are discretionary in nature and a favourable answer
may be regarded as a matter of "privilege", but the right in
each case is the right to have one's application considered and
dealt with, one way or another. The power to issue a Minister's
permit was conferred, it seems to me, at least in part for the
benefit of persons seeking to enter or to remain in the country
and not as a power to be exercised only on the Minister's
initiative. I think it must have been intended that it should be
possible for a person seeking to enter or remain in the country
to apply for a Minister's permit and to receive a decision from
the Minister or a person authorized to exercise his authority. I
would take the view that a person must not be effectively
prevented by action of the immigration authorities from having
an application for a Minister's permit considered before it is too
late—that is, before an order of deportation is pronounced
against him ....
In my opinion, when a Special Inquiry Officer refuses to
adjourn an inquiry to permit a case to be considered for a
Minister's permit on the ground that the circumstances are not
such as would justify the issue of a permit, or on the ground,
mistakenly, that the circumstances have already been fully
considered by the Minister, or a person authorized to exercise
his powers under section 8, the Special Inquiry Officer in effect
usurps the discretion of the Minister, as he was held to have
done in the Ramawad case.
In Murray, the person concerned appears to
have been a non-immigrant who had overstayed
her visitor's permit and taken employment without
authorization. The attack on the deportation order
was based on the failure of the Adjudicator to
adjourn to enable her to apply for a permit. The
present Act governed. The full reasons of the
Court on this issue follow [at pages 519-520 F.C.]:
In my view, as far as this Court is concerned, it has been
described in the Louhisdon case [1978] 2 F.C. 589 that the
Ramawad case does not apply to a case such as this. In that
case, there was an actual application during the course of the
inquiry for an adjournment to afford an opportunity to apply
for a Minister's permit. It is true that that case was under the
old Act, but I can see no point of distinction between the old
Act and the 1976 Act, which governs the decision of this
application. In my view, such a recent decision of this Court,
which is directly in point, should be followed even if, had the
members of this Division constituted the Division of the Court
by whom it was decided, they might have decided it differently.
In saying this, I am not applying the principle of stare decisis,
which, in my view, does not apply, as such, in this Court. I am
following what, in my view, is the proper course to follow from
the point of view of sound judicial administration when a court
is faced with one of its recent decisions. It would, of course, be
different if the recent decision had been rendered without
having the point in mind or, possibly, if the Court were
persuaded that there was an obvious oversight in the reasoning
on which it was based.
I should add, however, that, in my view, the Ramawad
decision would have no application to the present problem even
if the Louhisdon case had not been rendered. In the Ramawad
case, there was an outstanding application, at the time of the
inquiry, which, as the Supreme Court held, could not be
disposed of without first putting if before the Minister; and the
Special Inquiry Officer, instead of allowing it to be put before
the Minister, undertook himself to exercise the Minister's
powers in relation to the matter. In this case, there was no
application to the Minister for a permit (and, in so far as I can
ascertain, no assumption by the Adjudicator of the Minister's
power to deal with such an application. I find nothing in the
decision of the Supreme Court of Canada that lays it down
that, whenever a person seeking to come into Canada is the
subject of an inquiry, or whenever a person, being in Canada, is
the subject of deportation proceedings, the presiding officer
must interrupt the inquiry proceedings to permit him to apply
for a Minister's permit if he has not already done so. Such a
rule of law would, in my view, create such a fundamental and
disruptive change in the processing of these matters that I am
not prepared to infer it in the absence of an express statutory
provision or a clear pronouncement in a decision that I feel
bound to follow.
I do not think that subsequent decisions of this
Court dealing with immigration matters add sig
nificantly to the law as defined in Ramawad,
Louhisdon and Murray. Except for Tam v. Minis
ter of Employment and Immigration, [1983] 2
F.C. 31; 46 N.R. 1 (C.A.), this Court has consist
ently held that the refusal of an adjudicator to
adjourn an inquiry to allow the person concerned
to seek relief under either section 37 or 115 did not
vitiate the ensuing deportation under or departure
notice.
In Tam, the Adjudicator had granted an
adjournment to permit the person concerned to
seek both a permit under section 37 and an
exempting order in council under section 115. He
then resumed the inquiry before decisions on those
applications had been made and made a deporta
tion order. That deportation order was set aside.
One of the arguments advanced by the appellants
in this case was that an adjudicator was not only
not required to grant the adjournment but that he
was not entitled to grant it, the grounds upon
which he might adjourn being limited to those
expressly prescribed by the Act and Regulations.
The only direct relevance of Tam to the present
case is, in my view, that it is clear authority
against which that argument cannot prevail. I am
entirely satisfied that the Adjudicator here could
properly have granted the adjournment.
Dickson J., as he then was, in Martineau v.
Matsqui Institution Disciplinary Board (No. 2),
[ 1980] 1 S.C.R. 602, at page 615, referring to
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10], said that it
... has caused difficulties ... because it tended to crystallize
the law of judicial review at a time when significant changes
were occurring in other countries with respect to the scope and
grounds for review.
Those changes had been, by and large, introduced
into Canadian administrative law by Nicholson v.
Haldimand-Norfolk Regional Board of Commis
sioners of Police, [1979] 1 S.C.R. 311. Both of
these judgments of the Supreme Court of Canada
post-date Louhisdon and Murray. I have con
sidered the possibility that, out of that evolution in
the law, there might have arisen a supportable
distinction between an attack, under section 28, on
a deportation order made after the refusal of an
adjournment to permit the Minister to dispose of
an application for a permit and a timely attack on
the refusal to adjourn itself under section 18. I
have concluded that the distinction is not support
able. If an application for a Minister's permit gives
rise to a right to an adjournment of the inquiry it
is a substantive right as suggested by Ramawad,
not a matter of fairness in the conduct of the
inquiry. It follows that I see no material distinction
between the present case and Louhisdon.
The respect to be accorded a previous decision
of another panel of the Court has already been
alluded to in the passage quoted from Murray. Sir
Frederick Pollock, in his A First Book of Juris
prudence, 6th ed., page 321, wrote:
The decision of an ordinary superior court ... though not
absolutely binding ... on that court itself, will be followed in
the absence of strong reason to the contrary.
After citing that statement with approval, McRuer
C.J.H.C., in R. v. Northern Elec. Co. et al.,
[1955] 3 D.L.R. 449, at page 466, said:
I think that "strong reason to the contrary" does not mean a
strong argumentative reason appealing to the particular Judge,
but something that may indicate that the prior decision was
given without consideration of a statute or some authority that
ought to have been followed. I do not think "strong reason to
the contrary" is to be construed according to the flexibility of
the mind of the particular Judge.
While Chief Justice McRuer was speaking of
judges of the same trial court, I see no rationale
for a distinction in dealing with differently-con
stituted panels of the same intermediate court of
appeal. I accept his judgment as a correct, if
somewhat colourful, statement of the applicable
law.
Most recently, in Minister of Indian Affairs and
Northern Development v. Ranville et al., [1982] 2
S.C.R. 518; 44 N.R. 616, the Supreme Court of
Canada considered its position as to departure
from its previous judgments. While not the judg
ment of the majority, I find this concurring com
ment of Ritchie J., at page [529 S.C.R.] 626
[N.R.], to be highly pertinent:
I do not doubt the power of this Court to depart from a
previous judgment of its own but, where the earlier decision has
not been made per incuriam, and especially in cases in which
Parliament or the Legislature is free to alter the law on the
point decided, I think that such a departure should be made
only for compelling reasons.
In addition to the restraints which the Supreme
Court may feel upon itself in these circumstances,
an intermediate court of appeal ought also bear in
mind that its declarations of the law are subject to
review by the final court of appeal as well as to be
altered by legislation.
The majority and dissenting judgments in Lou-
hisdon leave me in no doubt that the Court there
fully considered the issue. It chose to restrict the
application of Ramawad to its own facts, rather
than to apply its principle more generally. It may
have been wrong. If it was it is plainly a situation
which Parliament, indeed the Governor in Council,
is at liberty to alter and the Supreme Court to
correct. Whether it be termed judicial comity or
an application of the principle of stare decisis, I
consider myself obliged to apply Louhisdon.
I have now had the opportunity to read, in draft,
the reasons for judgment of Mr. Justice Urie. He
has dealt with the foregoing subject considerably
more fully than I. I adopt his reasons as supple
menting my own.
There are three other matters I feel I should
deal with. Firstly, if I had found myself able to
agree with Mr. Justice MacGuigan as to the obli
gation of the Adjudicator to adjourn, I should, of
course, have agreed that prohibition was the
appropriate remedy. A failure to adjourn where
there is a duty to do so goes clearly to jurisdiction.
Secondly, with respect, it is no more our function
to make any finding as to the merits of the
respondent's application for a Minister's permit
than, for example, it was the function of the
special inquiry officer to deal with the merits of
Mr. Ramawad's application for an employment
visa. Courts too are capable of usurpation and
must guard against it because it is usually more
difficult to remedy than that of an official. I
would, however, accept that the record discloses no
rational basis for the Commission's treatment of
the respondent to date.
Finally, in Murray, the Court referred to "a
fundamental and disruptive change in the process
ing of these matters" that would ensue upon
acceptance of Ramawad as applying to the present
circumstances. I do take exception to that as a
relevant consideration. We are here concerned
with two processes entirely subject to the
managerial direction of the same Minister. I
cannot conceive that anything should be much
easier or inexpensive than for the Minister to so
order his bureaucracy that applications under sec
tion 37 would routinely be dealt with speedily and
with no resulting adverse effect, including undue
delay, on the adjudicative process. The burden is,
after all, on the person seeking a permit to satisfy
the Minister. The legislation contemplates that a
person in Canada may seek a permit after a sub
section 27(2) report has been made respecting
him. It also contemplates that, after that report
has been made, an inquiry ensue in the ordinary
course of events. Parliament clearly intends that
inquiries should proceed expeditiously after a
report is made but also that, until it concludes, the
Minister still have a discretion to issue a permit
under section 37. There is something unseemly,
verging on the scandalous, in the spectacle of the
Minister and a functionary of his Department, an
adjudicator, engaging in a sort of a race with the
prize the possibility of the person concerned to
remain in Canada if the Minister reaches the wire
first and that person's probable expulsion from
Canada if the adjudicator wins. That is surely not
what Parliament intended.
The respondent asked for her costs as between
solicitor and client in any event. In support there
of, occurrences after the making of the order by
the Trial Division were deposed to. The Minister's
responsible officials undertook to process the sec
tion 37 request and then reneged on that undertak
ing. They presently refuse to deal with it in any
way until the appeal is finally disposed of.
It is trite law that costs are not awarded to
punish an unsuccessful party. Neither are they
awarded to punish a successful one. A successful
appellant has, in the absence of special circum-
stances connected with the case, a reasonable
expectation of obtaining an order for his costs of
the appeal and, in an all-or-nothing situation as
here, of the proceedings below as well. The discre
tion to deny costs to a successful appellant must be
exercised judicially. Here, circumstances connect
ed with the appeal do, in my opinion, support such
a denial. Had the request under section 37 been
dealt with efficiently, it would long since have
been disposed of. Its disposition, whether by grant
ing or refusing the permit, would have rendered
the appeal moot. I would award no costs of the
appeal to any party.
I would allow the appeal and set aside the
judgment of the Trial Division. I would, however,
stay execution of this judgment until the later of
the expiration of the time fixed for the respondent
to apply for leave to appeal to the Supreme Court
of Canada, the refusal of such leave if sought, or
the rendering of its judgment should leave be
granted.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J. (dissenting): This is an appeal
against an order of prohibition issued by the Trial
Division on June 11, 1984, prohibiting a decision
from being rendered in an inquiry by an Adjudica
tor pursuant to subsection 27(4) of the Immigra
tion Act, 1976, with respect to Danuta Widmont.
The neat question in this appeal is whether a
decision on deportation should be rendered by an
adjudicator in an inquiry when to do so would
deprive the Minister of Employment and Immigra
tion of his or her power to issue a Minister's
permit under subsection 37(1) of the Immigration
Act, 1976, authorizing the person to remain in
Canada.
If Parliament itself had not seen fit to link the
two procedures of the adjudicator's inquiry and the
ministerial permit by providing in subsection 37(2)
of the Act that the issuance of a removal order
(defined by the Act in section 2 as an exclusion
order or a deportation order) or a departure notice
precludes the granting of a Minister's permit, the
courts would have been justified in treating the
procedures as entirely independent, as is the func
tioning of the adjudicator in relation to the Gover
nor in Council under subsection 115(2). The meas
ure of the autonomy of these latter procedures is
that order in council action on behalf of a prospec
tive immigrant is in no way inhibited by a removal
order or departure notice; effective action by the
Governor in Council can take place even after
deportation.
But that is not the case with an adjudicator's
inquiry in relation to the procedures for a minis
terial permit. These two most heterogenous proce
dures are yoked by statutory force together. But
Parliament nevertheless gives no clear direction as
to which procedure shall prevail. There is an
ambiguity in the statute which courts are left with
the duty of interpreting.
There has in fact been a great deal of judicial
interpretation of the Immigration Act, 1976 in this
respect. In Laneau v. Rivard, [1978] 2 F.C. 319
and in Nesha v. Minister of Employment and
Immigration et al., [ 1982] 1 F.C. 42 the Trial
Division issued writs of prohibition, and in Tam v.
Minister of Employment and Immigration, [1983]
2 F.C. 31; 46 N.R. 1 (C.A.) this Court set aside a
deportation order where an Adjudicator refused a
further adjournment to await the Minister's deci
sion on an application for a permit. On the other
hand, in Louhisdon v. Employment and Immigra
tion Canada, [1978] 2 F.C. 589 (C.A.), in Oloko
v. Canada Employment and Immigration et al.,
[1978] 2 F.C. 593 (C.A.), in Murray v. Minister
of Employment and Immigration, [1979] 1 F.C.
518 (C.A.), and in Stalony v. Minister of
Employment and Immigration (1980), 36 N.R.
609 (F.C.A.), this Court refused to set aside
deportation orders where adjudicators had denied
adjournments to allow time for the Minister's con
sideration of the desirability of permits. Whatever
our obligation may be in relation to previous deci
sions of this Court, and I find it unnecessary to
resolve that issue here, our higher duty is surely to
apply the law as interpreted by the Supreme Court
of Canada. Hence the overriding authority here is
the Supreme Court's decision in Ramawad v.
Minister of Manpower and Immigration, [1978] 2
S.C.R. 375.
In Ramawad the appellant's non-immigrant
employment visa was automatically terminated
without his awareness when he changed employers
and he was reported for an inquiry. The special
inquiry officer determined that the appellant could
not be issued an employment visa because of his
violation of the conditions of his employment visa
and he ruled that no special circumstances existed
that could justify a waiver of the prohibition by
the Minister through a permit. The Supreme
Court unanimously quashed the deportation order.
This Court has tended to limit the ratio deci-
dendi of Ramawad to the absence of any implied
delegation of authority from the Minister to a
special inquiry officer in the case of employment
visas. But I believe that Ramawad cannot be so
limited because the Supreme Court itself stated a
broader ground for its decision. In his ultimate
paragraph on the merits Pratte J. speaking for the
full eight-judge Court stated the principle this way
(at page 384):
In my view, the making of an application seeking the opinion
of the Minister pursuant to para. 3G(d) [now subsection 37(1)]
has the effect of suspending the authority of the Special Inquiry
Officer to issue a deportation order, and the only possible
course of action for the Special Inquiry Officer under such
circumstances is to adjourn making his decision until such time
as the Minister has disposed of the application.
Previously (at page 383) Pratte J. had referred to
the appellant's "right to have the Minister decide"
(emphasis added) whether special circumstances
existed had been "effectively denied" (ibid.) by the
special inquiry officer, and stated that it was a
matter "of substance rather than of procedure"
(ibid.). In my view there is no way in which such a
decision can be limited to a mere question of
delegation.
Nor should it be so limited. Ramawad governs
not only by reason of its authority but also by
authority of its reason. It is, as Pratte J. said, a
matter of substance and not of procedure. The
consequence for the applicant of the adjudicator's
refusal to adjourn is a terminal one in a situation
where only the exercise of ministerial discretion
could stop the inevitable progress towards a depor
tation order or departure notice.
The consequence of a delay for the Department
of Employment and Immigration, on the other
hand, is one of mere inconvenience, and the degree
of inconvenience depends entirely on the efficiency
of the Department itself. To the extent that it
would find delay in the work of its adjudicators
unduly burdensome, it has only to invoke the
remedy of a speedy processing of requests for
Minister's permits. The fact that in this case an
additional delay has resulted from the Depart
ment's uncalled-for decision to freeze the process
ing of the permit application pending this judicial
resolution of the powers of the adjudicator indi
cates the apparently unhurried pace of the present
approach.
It may be that the adjudicator's general power
of adjournment under Regulation 35(1), which is
"for the purpose of ensuring a full and proper
inquiry," is not broad enough to justify an
adjournment which may be said not to be for the
purposes of the inquiry at all. But if, as I hold, an
adjudicator is required on a proper interpretation
of the Act to adjourn in such circumstances, then
subsection 26(2) of the Interpretation Act [R.S.C.
1970, c. I-23] will make up for any deficiency in
the powers bestowed on the adjudicator:
26....
(2) Where power is given to a person, officer or functionary,
to do or enforce the doing of any act or thing, all such powers
shall be deemed to be also given as are necessary to enable the
person, officer or functionary to do or enforce the doing of the
act or thing.
In summation, I believe that Parliament must be
presumed to have intended that an applicant
should have a genuine opportunity to obtain a
Minister's permit before that opportunity is for
ever foreclosed by an order of deportation issued
by a lower-level official. Any other result would to
my mind make a mockery of justice in the
administration of immigration law.
Indeed, this case seems on its facts so clearly a
meritorious one for ministerial discretion that it is
a temptation to limit the generality of the require
ment for an adjournment. In the Nesha case, for
example, Smith D.J. said (at page 51) that "It
does not seem just ... that genuine cases, in which
the known facts indicate there is sufficient merit to
warrant a reasonable hope of success, should be
frustrated in advance by the issuing of a deporta
tion order", and on a finding that "if the allega
tions in her [applicant's] letter to the Minister .. .
should be shown to be correct, it is not impossible
to think her application might succeed", he held
that an order of deportation should not be issued.
The merits of the application of the respondent
here for a Minister's permit seem equally appar
ent. Not only is respondent from an Eastern Euro-
pean country, to which there is usually a reluc
tance to deport illegal entrants, but she was found
by the learned Trial Judge to have been in Canada
prior to December 1983 and therefore apparently
eligible for a special status as determined by a
special review committee. In addition, she has
married a Canadian citizen and is therefore eli
gible to be sponsored by her spouse.
Moreover, a result dependent on at least a
prima facie case for a ministerial permit does not
necessarily run afoul of the Ramawad rule against
delegation. The class of persons to whom the Min
ister may delegate under section 123 of the present
Act extends broadly to persons employed in the
Public Service of Canada, as opposed to the limita
tion of the Minister's power of delegation at the
time of Ramawad to the Deputy Minister or the
Director. Also, section 37 is not among the parts of
the Act specified by section 123 as to which a
prohibition on delegation applies.
However, the breadth of the Minister's power of
delegation is limited by appropriateness. Section
123 provides:
123. The Minister or the Deputy Minister, as the case may
be, may authorize such persons employed in the public service
of Canada as he deems proper to exercise and perform any of
the powers, duties and functions that may or are required to be
exercised or performed by him under this Act or the regula
tions .... [Emphasis added.]
Not only is there no evidence that the Minister
has so delegated his power but it would be unrea
sonable to infer that delegation to an adjudicator
would be delegation to a "proper" person. The
favourable exercise of the Minister's discretion
under section 37 is obviously intended for excep
tional cases, to relieve from the rigidity of the law
and the harshness of administration, to provide
equity and indeed compassion; as Spence J. put it
for the Supreme Court of Canada in Minister of
Manpower and Immigration v. Hardayal,
[1978] 1 S.C.R. 470, at page 478, this "power
was, in the opinion of Parliament, necessary to
give flexibility to the administration of the immi
gration policy ...". The kind of humanitarian
intervention sought by the respondent here to
avoid return behind the Iron Curtain requires not
only a compassionate judgment but also a political
one. It cannot be supposed that the Minister would
delegate even a prima facie decision on such a
matter to an adjudicator.
While a broader rule is perhaps not strictly
demanded by Ramawad, it is much more in accord
with that decision, which considered the denial of
adjournment a matter of substance, than a con
trary result would be. In fact the Court there came
very close to explicitly broadening its ratio deci-
dendi to apply to facts such as those here. As the
Court put it (at page 382), "the legislation here in
question, because of the way it is framed and also
possibly because of its subject matter, makes it
impossible to say ... that the power of the Minis
ter to delegate is implicit; quite the contrary"
(emphasis added).
In the absence of any power in the adjudicator
to make a decision on behalf of the Minister,
either prima facie or final, I do not see how a
court could assume on a review the power to
distinguish meritorious from non-meritorious cases
for ministerial intervention. If such a power of
distinction were to be located in either an
adjudicator or a court, it should only be by explicit
authorization of Parliament. I therefore conclude
that an adjudicator must grant an adjournment in
all cases when faced with an application for a
Minister's permit under subsection 37(1).
With respect to the propriety of the writ of
prohibition in these circumstances, even if we
assume that the traditional forms of the preroga
tive writs are still maintained under section 18 of
the Federal Court Act, the decision here neverthe
less satisfies the criterion laid down by Pratte J. in
this Court in Minister of Manpower and Immi
gration v. Tsakiris, [1977] 2 F.C. 236 (C.A. ), at
page 238:
Prohibition lies to prevent an inferior tribunal from exceeding
its jurisdiction; it must not, therefore, be mistaken for an
injunction or a mere stay of proceedings.
Here, while one form of relief initially sought by
the respondent was a writ of prohibition directed
against a resumption of the inquiry until such time
as the Minister made his decision, the learned
Trial Judge correctly directed his order not to the
continuation of the inquiry itself but to the making
of a decision, by which he was evidently prohibit
ing the Adjudicator from exceeding his jurisdic
tion.
I would dismiss the appeal and, in the light of
the costly delays created by the Department's
inaction, I would allow costs on a solicitor-client
basis as well as on a party-party basis.
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.