T-1225-85
Debora Bhatnager (Applicant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respon-
dents)
INDEXED AS: BHATNAGER V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Trial Division, Strayer J.—Toronto, December 5
and 6; Ottawa, December 20, 1985.
Practice — Contempt of court — Respondents ordered to
direct officials to produce file relating to applicant's husband
from India so cross-examination on affidavits could be com
pleted before hearing September 3 — File not produced until
August 30 — Contempt of court not established notwithstand
ing failure to give effective directions to ensure arrival of file
well before hearing date — Ministers not personally liable as
no personal knowledge of order — Personal service of order or
other proof of notice of order required — Solicitor's knowl
edge insufficient proof of notice — Ministers not vicariously
responsible for contempt of court because of superior position
— Ministers not corporations sole nor Crown — Ministry of
Housing and Local Government v. Sharp, [1970] 2 Q.B. 223
(C.A.) explained — Federal Court Rules, C.R.C., c. 663, RR.
335, 337(8) — Employment and Immigration Reorganization
Act, S.C. 1976-77, c. 54, s. 9(2) — Department of External
Affairs Act, S.C. 1980-81-82-83, c. 167, s. 3(2) — Public
Service Rearrangement and Transfer of Duties Act, R.S.C.
1970, c. P-34, s. 2 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 2, 18.
Practice — Parties — Standing — Contempt of court
proceedings — Respondents ordered to direct officials to
produce file in immigration matter from India within certain
time — Order not complied with — Show cause order issued
October 4 — Mandamus issued October 15 — Spouse of
permanent residence applicant having standing to proceed with
contempt accusation as civil proceedings not finished when
applicant moving for show cause order — Possible prejudice to
preparation of case — Contumacious acts may be both civil
and criminal at same time: Poje v. A.G. for British Columbia,
[19531 1 S.C.R. 516 — In re O'Brien (1889), 16 S.C.R. 197
explained.
Criminal justice — Evidence — Onus and nature of proof
— Contempt of court proceedings — Onus on person alleging
contempt to prove it beyond reasonable doubt — R. v. Cohn
(1984), 15 C.C.C. (3d) 150 (Ont. C.A.) explained — Hearsay
evidence inadmissible — Affidavits re: knowledge of respond
ents based on information and belief inadmissible — Federal
Court Rules, C.R.C., c. 663, R. 355(4) — Canada Evidence
Act, R.S.C. 1970, c. E-10, s. 28.
This is a proceeding under Rule 355 with respect to a show
cause order requiring the respondents to attend to hear proof of
and to defend themselves against allegations of contempt of
court. The respondents were ordered to direct their officials to
produce the file relating to the applicant's husband from the
Canadian High Commission in New Delhi so that the applicant
might complete cross-examination on the affidavits filed in the
proceedings in time for the hearing on September 3, 1985.
Counsel for the respondents was present in Court when the
order was approved and it was formally served on one of the
respondents' counsel. The order was not served on either of the
respondent ministers. On the same day that the order was
made, an employee of Canada Employment and Immigration
Commission (CEIC) informed the Visa Office in India that if
the file was not produced at the next hearing scheduled for
September 3, the respondents could be cited for contempt. He
requested that the file be sent by the next diplomatic bag. The
employee had been misinformed by mail room staff at External
Affairs that a diplomatic bag leaving India on Friday would be
in Ottawa on the following Monday or Tuesday. The file
arrived in Ottawa August 28, but did not reach Toronto until
August 30.
Held, the allegations of contempt against the two respond
ents have not been made out.
Whether these proceedings are criminal or civil in nature,
there is an onus on the person alleging contempt to prove it
beyond a reasonable doubt. R. v. Cohn is distinguishable
because it involved contempt in the face of the court where the
judge himself observed the acts of contempt. Hearsay evidence
is not admissible, rendering affidavits of departmental officials
as to the state of knowledge of the ministers inadmissible.
The applicant had every right to seek to have the respondents
justify their failure to observe the order. The civil proceedings
were not finished when the applicant moved for a show cause
order. Poje v. A.G. for British Columbia, [1953] 1 S.C.R. 516
is authority for the proposition that contumacious acts may be
both civil and criminal at the same time. These allegations of
contempt incorporate both aspects. In In re O'Brien (1889), 16
S.C.R. 197 the contempt occurred after judgment had been
delivered. By the time an application had been made for
committal for contempt the appeal from that judgment had
been abandoned. The alleged contempt was based on interfer
ence with the administration of justice, and that possibility had
passed before a contempt committal was signed.
In contempt proceedings, the order must be construed strict
ly. The order required that effective directions be given to
ensure the arrival of the file in Toronto well before the hearing
date. Such directions were not given, nor was there effective
follow-up to ensure that the intended objective of the order was
achieved. CEIC was responsible for obtaining the file from
India. The message of the CEIC employee did not adequately
convey the urgency of the matter. It was inaccurate and
contained contradictory directions. It is inexplicable why he did
not send the already overdue file to Toronto by hand rather
than by bus. The Department of External Affairs had control
of the file and had the primary responsibility to give the
necessary directions for the production of the file. There is no
evidence as to what directions were given on behalf of the
Secretary of State for External Affairs to ensure prompt deliv
ery of the file.
The respondents did not have personal knowledge of the
order and cannot be personally responsible for having failed to
carry out the order. A person must have an opportunity to obey
the order or to see that it is obeyed. He must have notice of the
order. The order was not served personally on the respondents,
or otherwise brought to their attention prior to September 3.
While the Rules of Court say nothing specific about personal
service of an order subsequently relied on as a basis for
contempt of court proceedings, common law principles require
that the order be served personally. It is not necessary to prove
service of the order if notice can otherwise be proved. Knowl
edge by the solicitor of the order is not sufficient to impute to
the client sufficient knowledge to render him guilty of contempt
of court.
The ministers are not vicariously responsible for contempt of
court arising out of acts of their officers in which they in no
way participated.
The respondents are not parties to these proceedings in the
role of corporations sole or as the Crown. At issue in the
original mandamus proceedings was the alleged failure of visa
officers to perform an administrative act. The law empowers
the ministers to direct that such decisions be taken. The Court
can enforce the law by granting mandamus against any "feder-
al board, commission or other tribunal". The ministers are
within the definition of that term. No statutory provision makes
the ministers corporations sole.
A minister is not vicariously liable for torts of public ser
vants, unless he personally participates in them. Ministry of
Housing and Local Government v. Sharp, [1970] 2 Q.B. 223
(C.A.) is not authority for the vicarious liability of senior
officers for their juniors. The judgment of Lord Denning, M.R.,
relied upon by the applicant was a dissenting judgment. The
cases of liability of newspaper owners for contumacious publi
cations turn on the primary responsibility of the proprietor and
editor for matters which appear in their publication.
This decision may give rise to difficulties for private litigants
seeking judicial review of administrative decisions. Generally
the practice of identifying the minister as the nominal party is a
satisfactory means of engaging the response of the relevant
officials, although it has some shortcomings in contempt pro
ceedings. Orders might, however, be framed which would
engage the responsibility of officials other than the minister,
and contempt proceedings taken against officials who knowing
ly impede compliance with orders issued against the minister.
CASES JUDICIALLY CONSIDERED
APPLIED:
Poje v. A.G. for British Columbia, [1953] 1 S.C.R. 516.
CONSIDERED:
R. v. Cohn (1984), 15 C.C.C. (3d) 150 (Ont. C.A.); In re
O'Brien (1889), 16 S.C.R. 197; Ministry of Housing and
Local Government v. Sharp, [1970] 2 Q.B. 223 (C.A.);
Heaton Transport (St Helens) Ltd v Transport and
General Workers' Union, [1973] A.C. 15 (H.L.).
REFERRED TO:
Glazer v. Union Contractors Ltd. & Thornton (1960),
129 C.C.C. 150 (B.C.C.A.); Re Bramblevale, Ltd.,
[1969] 3 All E.R. 1062 (C.A.); Redwing Limited v.
Redwing Forest Products Limited (1947), 177 L.T.R.
387 (Ch.D.); Northwest Territories Public Service Asso
ciation et al. v. Commissioner of the Northwest Territo
ries et al. (1979), 107 D.L.R. (3d) 458 (N.W.T.C.A.);
Ex parte Langley. Ex parte Smith. In re Bishop (1879),
13 Ch.D. 110 (C.A.); Regina v. Woodyatt (1895), 27
O.R. 113 (Q.B.); Canada Metal Co. Ltd. et al. v.
Canadian Broadcasting Corp. et al. (No. 2) (1974), 4
O.R. (2d) 585 (H.C.); Regina v. Evening Standard Co.
Ld., [1954] 1 Q.B. 578; Steiner v. Toronto Star Ltd.
(1955), 1 D.L.R. (2d) 297 (Ont. H.C.).
COUNSEL:
Clayton Ruby and Michael Code for appli
cant.
John E. Thompson and Michael W. Duffy for
respondents.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
STRAYER J.: This is a proceeding under Rule
355 [Federal Court Rules, C.R.C., c. 663] with
respect to a show cause order requiring the
respondents to attend personally or by agent to
hear proof of the acts with which they were
charged and to urge any grounds of defence as to
the following allegations of contempt of court put
forward by the applicant:
(a) that they disobeyed an order of this Honourable Court, that
is the order given by the Associate Chief Justice on Thursday,
the 15th day of August, 1985, ordering that the respondents
direct their officials to produce the file or a copy of the file
relating to the applicant, Debora Bhatnager and her husband,
Ajay Kant Bhatnager, from the Canadian High Commission in
New Delhi, India to Lou Ditosto, an Immigration Officer of
the respondents, so that the applicant might complete cross-
examination on the affidavits filed herein, forthwith and in time
for the scheduled hearing of this matter of September 3, 1985;
(b) that they acted in such a way as to interfere with the
orderly administration of justice and to impair the authority or
dignity of the Court by so disobeying the said order.
The applicant filed a notice of motion on June 5,
1985 requesting that a writ of mandamus be
issued against the Minister of Employment and
Immigration to require her to order her officers to
process an application for permanent residence in
Canada of Ajay Kant Bhatnager, the spouse of the
applicant herein. The applicant is a Canadian
citizen living in Canada. Her husband at the time
the original motion was filed was living in India
and was waiting for his application for permanent
residence to be processed at the Canadian High
Commission in New Delhi. He had been waiting
since 1981.
Prior to commencing those proceedings, Ms.
Barbara Jackman, counsel for the applicant, had
indicated to counsel in the regional office of the
Department of Justice in Toronto that she would
be bringing such an application.
There was filed on behalf of the Minister of
Employment and Immigration, the only respond
ent in the proceedings at that time, an affidavit of
one Lou Ditosto, an immigration officer, such
affidavit being dated June 12, 1985. Mr. Ditosto
was cross-examined on that affidavit on July 11,
1985. Counsel for the respondent agreed at that
time to produce the file from New Delhi with
respect to Mr. Bhatnager's application for admis
sion. Obviously the contents of that file were
potentially relevant to assist Mr. Ditosto in
answering questions on cross-examination concern
ing the issues with respect to which his affidavit
was filed. On July 17 Jean M. Brisson, an
employee of the Canada Employment and Immi
gration Commission in Hull, sent a telex message
to the Visa Office at the Canadian High Commis
sion in New Delhi, India. This message referred to
the fact that court action had been commenced by
the applicant and concluded as follows:
Please forward your file immediately keeping a photocopy for
your needs. Required to prepare defence.
The file was not sent from New Delhi as request
ed, with the result that on August 15, 1985, the
Associate Chief Justice, at the request of the
applicant, made an order which read in part as
follows:
THAT the Respondents direct their officials to produce the file
or a copy of the file relating to the Applicant, Debora Bhatnag-
er and her husband, Ajay Kant Bhatnager, from the Canadian
High Commission in New Delhi, India to Lou Distosto, an
Immigration Officer of the Respondents, so that the Applicant
may complete cross examination on the affidavits filed herein,
forthwith and in time for the scheduled hearing of this matter
of September 3, 1985.
That order also directed that the Secretary of
State for External Affairs be added as a party
respondent. The reasoning behind this was that the
Visa Office in New Delhi, its officers and files, are
under the control of the Department of External
Affairs and hence under the Secretary of State for
External Affairs, by virtue of an Order in Council
adopted March 31, 1981 (SI/81-59) pursuant to
the Public Service Rearrangement and Transfer of
Duties Act, R.S.C. 1970, c. P-34, section 2. This
Order in Council transferred to the Department of
External Affairs:
... the control and supervision of that part of the public service
in the Canada Employment and Immigration Commission
known as the Foreign Branch .... [subject to certain excep
tions not relevant here].
Counsel for the respondents was present in
Court when this order was approved and it was
formally served on one of the respondents' counsel
on August 20, 1985. There is no evidence that it
was ever served on either of the respondent minis
ters. On the same day that the order was made,
August 15, Mr. Brisson sent a message to the Visa
Office in New Delhi which read in part as follows:
AT COURT HEARING THIS A.M. JUDGE ORDERED THAT MINIS
TER FOR EXTERNAL AFFAIRS BE INCLUDED AS RESPONDENT
FOR THE COURT ACTION. IF FILE IS NOT PRODUCED AT NEXT
HEARING SCHEDULED FOR SEPT 3 HE AND MINISTER FOR
CEIC COULD BE CITED FOR CONTEMPT. PLEASE ENSURE THAT
FILE IS SENT BY NEXT DIP BAG TO BE HERE NEXT TUESDAY
AUG 20.
According to Mr. Brisson when he sent this telex
he understood, from information given to him by
staff at the mail room at External Affairs in
Ottawa, that a diplomatic bag leaving New Delhi
on a Friday (e.g. August 16) would be in Ottawa
on the following Monday or Tuesday (e.g. August
19 or 20). When he made inquiries at that mail
room on August 20 as to whether the file had
arrived, he was told by a Mr. Tessier that a
diplomatic bag leaving New Delhi on August 16
would not normally be in Ottawa until about
August 26. On August 21 he sent a further telex to
the Visa Office in New Delhi which read in part as
follows:
EXT AFFAIRS INFORMED ME THAT COURRIER SERVICE DHL
INTERNATIONAL EXPRESS LTD. WHICH HAS AN OFFICE IN
DELHI COULD DELIVER WITHIN 48 HOURS. IF YOU KEPT COPY
OF FILE PLEASE FORWARD A COPY OF IT IMMEDIATELY TO
MR. M. DUFFY, DEPARTMENT OF JUSTICE ... TORONTO ....
Mr. Duffy was at this point the counsel handling
the matter for the respondents. The evidence is
uncontroverted that the original file did not arrive
by diplomatic bag in Ottawa until August 28.
Although there is no admissible evidence as to how
the file got to Toronto, it did not reach that city
until August 30. I think I can take judicial notice
of the fact that a period of some forty-eight hours
for conveyance from Ottawa to Toronto, a distance
of some 400 kilometers, may be more rapid than
the service afforded by Her Majesty's post, but far
exceeds the time required by various forms of
transportation available at a not unreasonable
cost.
In the meantime, on August 26, counsel for the
parties agreed to resume the cross-examination of
a representative of the respondents on August 29.
While neither the file nor a copy thereof was
available in Toronto on the 26, it was anticipated
that one or the other would be available before the
cross-examination proceeded. In fact what pur
ported to be a copy of the file was received by
counsel for the respondents on August 27 in
Toronto. Cross-examination did proceed on
August 29 and the officer being cross-examined,
one Aphrodite Zografos, made reference to that
copy. It emerged during cross-examination, how
ever, that this was not a copy of the whole file and
that it lacked copies of several relevant documents.
Counsel for the applicant did not suggest that
there was anything sinister about these omissions
and it is probably fair to assume that the Visa
Office in New Delhi had simply not retained a
copy of all the documents so could not send copies
of all of them. Nevertheless the absence of these
documents hindered the applicant in her cross-
examination of the immigration officer.
On August 30, the day after this final cross-
examination, the original file did arrive in Toronto
some time during the morning. Mr. Duffy tele
phoned counsel for the applicant at 11:30 a.m. and
discussed the contents of the file. This was the
Friday before the long Labour Day weekend with
the hearing of the motion for mandamus being
scheduled for September 3, the day following
Labour Day. It had been directed by the Associate
Chief Justice that that motion be heard by me
together with a number of other motions dealing
with similar issues and the hearing proceeded as
directed.
During those hearings, which lasted several
days, counsel for the applicant indicated that she
would be requesting that a show cause order be
issued against the respondents with respect to their
alleged failure to produce the file in accordance
with the order of the Associate Chief Justice of
August 15. At the end of the joint hearings she
reverted to this matter and outlined what she
regarded as the essential facts making out con-
tempt of court. I invited counsel for the respond
ents to address this issue. As there appeared to be
no dispute over the basic facts that production of
the file had been ordered in time for cross-exami
nation to be finished before the hearing on Sep-
tember 3, and that the complete file had not
arrived in Toronto until August 30, the last normal
business day before the hearing, I thought it un
necessary to put the applicant to the cost of
making what could be simply an ex parte applica
tion, accompanied by an affidavit, for a show
cause order, as the Court has the power under
Rule 355(4) to issue a show cause order ex proprio
motu. I therefore stated that I would be prepared
to issue such an order if counsel for the applicant
would submit a draft for my approval. This was
not done for several weeks and the order itself was
issued on October 4, 1985. Prior to its issue coun
sel for the respondents made certain representa
tions as to form which I took into account, but I
declined to hold a further hearing as to whether
the show cause order should issue having regard to
the decision which I had already taken in open
court.
On October 15 I issued reasons [[1985] 2 F.C.
315] and an order in respect of the application for
mandamus, granting the application and also
ordering costs against the respondents. I directed
that the respondents should pay costs incurred by
the applicant after July 31 on a solicitor-client
basis, on the grounds that whether or not contempt
of court was made out, the respondents should
respond in costs for departmental delays in making
the file available in Toronto. While such delays
might be understandable up to the end of July,
they could not, as a matter of orderly participation
in procedures before the Court, be acceptable
thereafter.
I subsequently, at the request of counsel, gave
further directions as to the hearing of this matter
indicating it was to be on the basis of affidavit
evidence with the applicant carrying responsibility
for establishing the alleged contempt. Among the
affidavits filed by the respondents was one from
the First Secretary of the Canadian High Com
mission in New Delhi. Counsel for the applicant
indicated they wished to cross-examine on this
affidavit. To do so this would require the leave of
the Court under Rule 333(5), having regard to the
fact that the deponent was in New Delhi. The
respondents elected to withdraw the affidavit and I
permitted them to do so in spite of certain objec
tions by counsel for the applicant. While I am
aware that in some other courts it has been held
that an affidavit once filed on a motion cannot be
withdrawn, I could find no reason in principle why
this should be so. It appears to me that the closer
analogy is to that of a respondent deciding not to
call a witness where viva voce evidence is being
taken. As far as I am concerned the affidavit never
became part of the evidence. The respondents
cannot, of course, have it both ways: I cannot take
into account any evidence in support of their case
which this affidavit might have afforded and can
draw any appropriate inferences from the absence
of such evidence.
Conclusions
Lest it be obscured by what is to follow, I wish
to underline at the outset that in my view the spirit
of the order issued by the Associate Chief Justice
on August 15 was not observed by the two Depart
ments involved, particularly the Department of
External Affairs. I can only conclude, from the
evidence made available to me, that the respon
sible officials did not take this matter sufficiently
seriously, thus showing inadequate respect either
for the rights of the applicant or for the authority
of this Court. I am, however, dealing with a very
serious allegation of contempt of court against two
ministers of the Crown and this involves several
difficult legal and factual issues which will now be
considered.
(i) Onus and nature of proof—It is clear that
whether these proceedings be regarded as criminal
or civil in nature there is an onus on the person
alleging contempt to prove it. Rule 355(4) says
that the show cause order is to order the person
accused of contempt to appear before the Court
"to hear proof of the acts with which he is charged
.... " Such proof must be beyond a reasonable
doubt: see Glazer v. Union Contractors Ltd. &
Thornton (1960), 129 C.C.C. 150 (B.C.C.A.), at
page 156; Re Bramblevale, Ltd., [1969] 3 All E.R.
1062 (C.A.), at page 1063. Counsel for the appli
cant contended that the recent decision of the
Ontario Court of Appeal in R. v. Cohn (1984), 15
C.C.C. (3d) 150 had approved a procedure by
which the person accused of contempt of court is
required to prove his innocence. That case involved
an alleged contempt in the face of the Court where
the judge had himself observed the alleged acts of
contempt. The Court of Appeal makes it quite
clear in its decision that the onus of proof beyond a
reasonable doubt remains on he who alleges con
tempt of court even though, as a practical matter,
the burden of calling evidence may shift at some
point to the alleged contemnor if he is to escape
liability.
It is also clear that hearsay evidence is not
admissible in such proceedings: see Rule 332(1)
and the Glazer case supra, at page 156. Counsel
for the applicant objected at the outset of the
hearing to the admission of any evidence on infor
mation and belief contained in the affidavits filed
on behalf of the respondents. Counsel for the
respondents did not contest this objection and I
confirmed that I would not consider any such
evidence. This meant that affidavits sworn by the
Chief of Staff to the Minister of Employment and
Immigration and by the Senior Departmental
Assistant in the Office of the Secretary of State
for External Affairs, purporting to show that their
respective ministers were unaware of the order of
the Associate Chief Justice until sometime in Sep-
tember, are inadmissible as to the state of knowl
edge of the respondents. Counsel for the respond
ents objected that he had been taken by surprise
by arguments on behalf of the applicant to the
effect that an inference could be drawn that the
respondent ministers knew of the order before the
alleged contempt occurred. He wanted me either
to rule that no such inference could be drawn or
else to allow him to file admissible evidence as to
the state of knowledge of the two respondents. I
refused both requests on the basis that he could
not reasonably be considered to be taken by sur
prise by an argument as to the constructive knowl
edge of the respondents, that presumably counsel
for the respondents had this issue in mind in filing
the two affidavits (held to be inadmissible as hear
say) on the issue of the state of knowledge of the
respondents, and that any inferences to be drawn
were a matter for argument. I did not consider it
to be just to the applicant to adjourn proceedings
further to allow counsel for the respondents to
supplement their evidence once the hearsay affida
vits filed on their behalf had been rejected.
I have also rejected as inadmissible copies of
telexes received from New Delhi and a waybill for
the alleged shipment of the file from Ottawa to
Toronto, all on the grounds that they are hearsay
in so far as the truth of their contents is concerned.
They cannot, as variously suggested by counsel, be
admitted as "business records" as the procedural
requirements of section 28 of the Canada Evidence
Act [R.S.C. 1970, c. E-10] were not met and
neither party waived those requirements.
(ii) Locus standi of applicant—The respondents
contend that any contempt proceeding based on
alleged disobedience of an order of the Court in a
civil procedure is itself a civil process, but that
once that civil action is completed as between the
parties to it any further procedure against a
former party who is alleged to have disobeyed the
order of the Court during that process is a matter
of punishment for the better protection of the
administration of justice and is a criminal matter.
In such a situation, it was argued, the original
private litigant whose case has since been deter
mined has no standing to proceed with the con
tempt accusation. In support of this proposition
counsel cited a very old decision of the Supreme
Court of Canada, In re O'Brien (1889), 16 S.C.R.
197. I reject this proposition on two grounds. First,
it is clear from a more recent decision of the
Supreme Court of Canada in Poje v. A.G. for
British Columbia, [1953] 1 S.C.R. 516 that con
tumacious acts may be both civil and criminal at
the same time, having both a civil aspect in the
sense of enforcing rights and duties as between two
parties and a criminal aspect as involving the
public interest. In the present case I believe the
allegations of contempt themselves as set out
above incorporate both aspects, the public interest
involved being that of the maintenance of the
authority of this Court and the respect for that
authority by the executive branch of government.
In my view within the context of the civil proceed
ings here the applicant had every right to seek to
have the respondents justify their apparent failure
to observe the order which the applicant had
obtained against them. The civil proceedings were
not finished when the applicant moved for a show
cause order. A show cause order was issued on
October 4 whereas the order for mandamus, the
original relief requested by the applicant, was not
issued until October 15. Secondly, I am not satis
fied that the case In re O'Brien, supra stands for
the proposition advanced by the respondents. It
appears to me that in that case the real weakness
in the applicant's case was that at the time the
alleged contempt occurred, through a publication
in a newspaper, the judgment had already been
delivered in the case and by the time an applica
tion had been made for a committal for contempt
the appeal from that judgment had already been
abandoned. The alleged contempt being based on
interference with the administration of justice,
that possibility had passed before a contempt com
mittal was signed. In the present case we have an
alleged failure to obey a specific order of this
Court which failure may not only constitute an
affront to the Court but also, in the view of the
applicant, was prejudicial to the preparation of her
case which was not yet finished when the applica
tion was made for contempt. I think this gives her
adequate locus standi.
(iii) Was the order obeyed?—There is, of
course, no evidence that the respondents personally
did anything to comply with the order. I have
concluded, however, that those acting on behalf of
the respondents did not carry out either the letter
or the spirit of the order. I accept that in contempt
proceedings one must construe strictly the order
allegedly violated since a question of guilt or inno
cence is involved: see e.g. Redwing Limited v.
Redwing Forest Products Limited (1947), 177
L.T.R. 387 (Ch.D.), at page 390; Northwest Ter
ritories Public Service Association et al. v. Com
missioner of the Northwest Territories et al.
(1979), 107 D.L.R. (3d) 458 (N.W.T.C.A.), at
pages 478-480. Whatever the obligations cast on
the officers of their respective departments by this
order—and it would not be appropriate for me to
make a finding on that in these proceedings—it
required the respondents to:
... direct their officials to produce the file or a copy of the file
... so that the Applicant may complete cross examination on
the affidavits ... forthwith and in time for the scheduled
hearing of this matter on September 3, 1985.
This required that effective directions be given to
ensure the arrival of the file in Toronto well before
the hearing date. I think any reasonable person
familiar with the situation would interpret this to
mean that the file should have been in Toronto at
least by the beginning of the week preceding the
week of the hearing, that is by August 26 at the
latest. This would have allowed the witness being
cross-examined to familiarize herself with the file
so as to be able to answer questions relating to the
information; it would have allowed the cross-
examination to proceed, to be transcribed and to
be submitted to the Court; and would have permit
ted its analysis by counsel; all prior to the long
weekend immediately preceding the hearing.
While counsel for the respondents contended
that the Minister of Employment and Immigration
had no responsibility under this order since the file
was in the control of the Department of External
Affairs, it appears from the affidavits that the
Canada Employment and Immigration Commis
sion in such circumstances was seen as having the
responsibility within the government for obtaining
the file from the Visa Office in New Delhi. While
Mr. Brisson on behalf of the Commission did make
a considerable effort to get the file, even his mes
sage of August 15 as quoted above did not ade
quately convey the urgency of the matter. It leaves
the impression that it will be sufficient if the file is
produced at the time of the hearing, that is by
September 3. This was not a reasonable interpreta
tion of the order of the Associate Chief Justice. It
may be that Mr. Brisson was not adequately
briefed on the matter by those who should have
informed him, but the information which he con
veyed to New Delhi was not accurate. Further
more, he gave what proved to be a contradictory
direction in requesting that the file be sent "by
next dip bag to be here next Tuesday Aug 20". It
later emerged that anything put in the "next dip
bag" would not be in Ottawa by August 20 but, at
the earliest, by August 26. Further, when the
original file did arrive, it is clear from Mr. Bris -
son's affidavit that he had it at some time before
10:00 on the morning of August 28 and in spite of
the fact that it was already well overdue he decid
ed to send it by bus to Toronto. While there is no
direct evidence as to how the file did travel to
Toronto, it is common ground that it did not arrive
there until the morning of August 30, some two
days after Mr. Brisson had retrieved it from the
mail room at External Affairs in Ottawa. That he
did not think it sufficiently important to ensure the
immediate delivery of the file to Toronto by hand
if necessary, I find completely inexplicable.
As for the Department of External Affairs, it
appears that its mail room staff misinformed Mr.
Brisson of the CEIC as to how long the diplomatic
bag would normally take coming from New Delhi
to Ottawa with the result that his telex of August
15 was contradictory; and it is also apparent that
notwithstanding the telex of July 17, and the telex
of August 15, from Mr. Brisson, External Affairs
officers in New Delhi chose to send the file from
there in a manner which they must have known
would take at a minimum ten days, this without
regard to what they should have understood to be
the urgency of the matter. As the only evidence
from anyone in New Delhi was withdrawn by
counsel for the respondents, I am left with no
explanation as to what directions, if any, were
given to officers there on behalf of their minister,
the Secretary of State for External Affairs, with
respect to compliance with the order of the Court.
There is certainly no evidence to indicate if any
senior officer of the Department of External
Affairs gave directions on behalf of the Minister,
as required by the order of the Associate Chief
Justice, to ensure the prompt delivery of the file.
Yet, as pointed out by counsel for the respondents,
it is the Department of External Affairs which has
the ultimate control of these files and therefore
had the primary responsibility to give the neces
sary directions for the production of the file. If any
direction were given on behalf of the Secretary of
State for External Affairs the Court has not been
made privy to such order.
I am therefore obliged to conclude, on the basis
of the results achieved with respect to the produc
tion of this file, the evidence as to the inadequate
directions given by Mr. Brisson, and the lack of
any evidence of directions having been given on
the behalf of the Department with control of the
file, that directions were not given on behalf of the
respondents in the manner required by the order of
August 15. Nor was there effective follow-up to
ensure that the intended objective of the order was
achieved.
Nor can I accept the contention of counsel for
the respondents that counsel for the applicant
acquiesced in the non-production of the file by
agreeing to proceed with further cross-examination
before it arrived, or by failing to resume cross-
examination after its arrival. I believe these were
simply acts of necessity, taken by her when faced
with the situation and the desirability of having
the application for mandamus heard with other
similar ones on the date ordered by the Associate
Chief Justice. Nor can I see that her acts in any
way induced the respondents to fail to take steps
they might otherwise have taken to have the
August 15 order modified. It was too late for that
after August 26.
(iv) Are the respondent ministers personally
responsible?—It is unquestionably one of the
strengths of our governmental system that minis
ters are not above the law and are answerable in
Court if they fail to abide by the law in the
conduct of their official functions. It is equally
true that they are entitled to the same defences in
law as are ordinary citizens.
As noted earlier, contempt of court must be
strictly proven. This means that for a person to be
held personally responsible for his own contuma
cious acts, he must have had some opportunity to
obey the court order in question or to see that it
was obeyed. In my view this means that he or she
must have had notice of the order allegedly
disobeyed.
Several cases were brought to my attention in
which contempt proceedings have failed because of
lack of notice to the accused of the order allegedly
violated: see e.g Ex parte Langley. Ex parte
Smith. In re Bishop (1879), 13 Ch.D. 110 (C.A.),
at pages 117 and 119; Regina v. Woodyatt (1895),
27 O.R. 113 (Q.B.), at pages 114-115; and the
Redwing case supra at page 388. The applicant
did refer to cases where notice had been given
other than by service of the order, such as by
telegram (Glazer case supra) or by telephone
(Canada Metal Co. Ltd. et al. v. Canadian Broad
casting Corp. et al. (No. 2) (1974), 4 O.R. (2d)
585 (H.C.). But at least the alleged contemnors in
those cases had been made aware that an order
had been issued and could govern themselves
accordingly.
In the present case there was no suggestion that
the order of the Associate Chief Justice of August
15 had ever been served personally on the respond
ents or otherwise brought to their attention prior
to September 3. As noted earlier, the order was
announced in the presence of counsel for the
respondents and a copy of the order was personally
served on one of those counsel on August 20.
According to the Court file a certified copy of the
judgment was sent on August 15 by the Court by
hand to counsel, pursuant to Rule 337(8). The
applicant contends that by virtue of the rules of
court service on the solicitor of record is sufficient
to fix the party represented by that solicitor with
notice of an order. No authority was cited to me in
support of this proposition in so far as contempt of
court proceedings are concerned and I believe it is
wrong in principle. It is true that paragraph
311(1) (a) of the rules of court of the Federal
Court provides that service of a document, not
being a document that is required to be served
personally, may be effected by leaving a copy of it
at the address for service of the person to be
served. By virtue of the definition of "address for
service" in Rule 2(1), this term in the case of a
party who has an attorney or solicitor on the
record means the business address of that solicitor.
While the rule seemingly says nothing specific as
to personal service of an order subsequently relied
on as a basis for a proceeding in contempt of court,
I believe that from the common law principles it
must be deduced that in such cases the order must
be served personally on the party if service is later
to be relied on as the basis for knowledge by that
party of the order which he is alleged to have
violated. It is not, of course, necessary to prove
service of the order at all if one can otherwise
prove that he had notice. But I do not accept that
mere knowledge by the solicitor alone of the order
is sufficient to affix his client with such knowledge
of the order as to render that client guilty of the
quasi-criminal offence of contempt of court. I
believe it would be unjust to find any party guilty
of contempt where he had not been informed by
his solicitor that certain conduct otherwise lawful
had been enjoined by the court.
It is not my function to comment on the fact
that their counsel did not inform the respondents
of the order, nor did counsel for the applicant. It
would appear that a telegram would have sufficed
in the circumstances (see: Glazer case supra). The
fact remains that there is nothing to show that the
respondents ever had personal knowledge of the
order and therefore they cannot be personally
responsible for having failed to carry out the order.
(v) Are the respondent ministers vicariously
responsible?—There was considerable argument
as to the capacity in which the respondent minis
ters are proceeded against here. Counsel for the
applicant contended that each minister appears in
this proceeding as a "corporation sole" "in whom
the duties and the powers of the Crown are vested
by Parliament in relation to this matter". On this
basis they contended that as corporations are
vicariously liable for contempt of court committed
by their employees, therefore a minister as a cor
poration sole is equally liable. In response, counsel
for the respondents contended that if the ministers
are sued here as corporations sole "in whom the
duties and the powers of the Crown are vested"
then they appear as the Crown itself and the
Crown is not subject to either mandamus or
contempt.
I do not accept that the respondents are parties
to these proceedings in the role of corporations sole
or as the Crown. The original proceedings here
were for a mandamus and must be taken to have
been brought under section 18 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10] which
gives the Trial Division jurisdiction over granting
mandamus against any "federal board, commis
sion or other tribunal". The ministers here are
each within the definition of a "federal board,
commission or other tribunal" in section 2 of the
Federal Court Act as a
2....
... person ... having, exercising or purporting to exercise
jurisdiction or powers conferred by or under an Act of the
Parliament of Canada ....
The Minister of Employment and Immigration,
pursuant to the Employment and Immigration
Reorganization Act, S.C. 1976-77, c. 54, especial
ly subsection 9(2), has the power to direct the
Canada Employment and Immigration Commis
sion with respect to the performance of its powers,
duties and functions, and the Secretary of State
for External Affairs by virtue of the Department
of External Affairs Act, enacted S.C. 1980-81-82-
83, c. 167, especially subsection 3(2) and subsec
tion 11(2), has the management and control of
that Department including its foreign missions.
What was at issue in the mandamus proceedings
was the alleged failure of visa officers to perform
an administrative act, namely to take steps to
ensure that a decision is made with respect to an
application for permanent resident status of the
applicant husband. It was that act which was
required to be performed by the order of man-
damus which I issued. The Crown is not implead-
ed in these proceedings and section 18 does not
give me the power to issue mandamus against the
Crown. Instead, what is at issue is the exercise of a
power given to the respondents by Parliament as
persona designata and mandamus may issue
against them even though it could not issue against
the Crown: see Hogg, Liability of the Crown
(1971), at page 13. There is no magic in the words
"persona designata". The situation simply is that
the law empowers visa officers to make such deci
sion as they see fit, but it does not authorize them
to refuse, by inaction, to make any decision. It also
enables their ministers to direct that decisions be
taken. Where there is a failure to make such a
decision this Court is able to enforce the law
enacted by Parliament requiring that a decision be
made.
No statutory provision has been brought to my
attention making these ministers corporations sole
and for the above reasons I am satisfied that they
do not appear as such in these proceedings. What-
ever the state of the law may be with respect to the
vicarious liability of corporations for contempt of
court committed by their employees, it is not
relevant to the situation of the respondent minis
ters here.
A better analogy would appear to be that of the
lack of vicarious liability of ministers for torts
committed by public servants within their depart
ment. It is clear that neither a senior public ser
vant nor a minister is vicariously liable for such
torts unless he personally participates in them: see
e.g. Canadian Encyclopedic Digest (Ontario) (3d
ed., 1984), Vol. 8, Title 40, section 397; Hogg,
supra at page 109. The rationale for this is that
both the minister and the officer are fellow ser
vants of the Crown and it is the Crown alone
which is vicariously liable. This of course does not
protect the senior officer or minister from personal
liability if he directly participates, along with the
subordinate officer, in the commission of the tort
by ordering it or failing to take the proper steps to
avoid it. Nor does it mean that the minister is not
politically responsible in Parliament, even for
action or inaction occurring in his department
without his knowledge. What it means is that he is
not vicariously liable in damages just because he
happens to hold a superior office under the Crown
to that of the officer actually committing the tort.
What the applicant is seeking to do here, in
claiming vicarious liability of the respondents for
the alleged contempt, is to make them culpable,
just because of their position, for the apparent
failure of their officers to give or carry out the
directions contemplated by the order of the Associ
ate Chief Justice. I believe this to be contrary to
the principles which have been applied in the case
of torts liability and which, in my view, should
apply a fortiori to quasi-criminal liability.
Two of the cases relied on by the applicant in
support of vicarious liability for contempt require
comment. In Ministry of Housing and Local Gov
ernment v. Sharp, [1970] 2 Q.B. 223 (C.A.) cer-
tain findings by Lord Denning M.R. were relied on
by counsel for the applicant in support of vicarious
liability for damages of a senior officer for the acts
of a junior officer. In that case Lord Denning held
that a local land charges registrar was liable for
the mistake of his clerk who, after making a search
of the registry for the charges against a piece of
land, neglected to mention in the certificate he
prepared the existence of a particular charge.
Several points must be made with respect to Lord
Denning's decision. Firstly, this action, as the Trial
Judge makes clear, did not turn on vicarious liabil
ity but rather the personal liability of the registrar.
Secondly, in Lord Denning's view he was personal
ly responsible for the issue of the certificate which,
indeed, he signed in each case. Thirdly, and most
importantly, the judgment of Lord Denning cited
to me was, on this point, a dissenting judgment.
The other two Judges of the Court of Appeal
sitting on this case held that the registrar was not
liable. The case is therefore not an authority for
the vicarious liability of senior officers for the acts
of their juniors and of course it has no direct
relationship to the question of liability for
contempt.
Another case actually involving contempt of
court, frequently referred to by counsel for the
applicant, was Heaton Transport (St Helens) Ltd
y Transport and General Workers' Union, [1973]
A.C. 15 (H.L.). In this case a union was found
guilty of contempt of court for disobedience of an
injunction restraining the union from "blacking"
the appellant's lorries. The "blacking" nevertheless
continued, apparently with the approval of the
local shop stewards, notwithstanding messages sent
out from union headquarters drawing to the atten
tion of the shop stewards the terms of the injunc
tion. Apart from the fact that this involved the
particular situation of a union, it appears to me
that the judgment of the Law Lords delivered by
Lord Wilberforce really treats the offending activi
ties of the shop stewards as being authorized by
the union. According to the union constitution
shop stewards had certain authority to carry out
union policy through local union action unless that
authority was clearly taken away from them which
it had not been here. The shop stewards were held
to have been carrying out union policy. While
other interpretations of the judgment were brought
to my attention (see e.g. Miller, Contempt of
Court (1976), at page 173) I am unable to find
any clear indication that the union was held
responsible purely through vicarious liability.
Particular reference was also made to what was
contended to be a recognized vicarious liability of
proprietors of newspapers for contumacious publi
cations. Examples were cited such as Regina v.
Evening Standard Co. Ld., [ 1954] 1 Q.B. 578 and
Steiner v. Toronto Star Ltd. (1955), 1 D.L.R. (2d)
297 (Ont. H.C.). Again, the better view would
seem to be that liability has been imposed for
contempt in such cases because of the primary
responsibility of the proprietor and the editor for
matters which appear in their publications: they
are the publishers even though someone else has
prepared the material. This primary responsibility
appears to have more affinity to the law with
respect to criminal libel. See generally Borrie and
Lowe's Law of Contempt (2d ed., 1983), at pages
252-258.
I therefore find no compelling authority for
holding that the two ministers here are vicariously
responsible for contempt of court arising out of
acts of their officers in which they in no way
participated either through direct action or a
knowing failure to act.
For these reasons I find that the allegations of
contempt against the two respondents have not
been made out.
(vi) Costs—At the request of counsel I am
making no direction as to costs at this time but
instead invite counsel to address the Court on this
issue before the formal order is entered. A suitable
time and place for a hearing on this matter will be
arranged by the Administrator of the Court in
consultation with counsel.
(vii) General observations—I am not unaware
of the difficulties for private litigants to which this
decision may give rise. Very often when an
individual wishes to seek judicial review of an
administrative decision it is much more feasible to
name as respondent the minister ultimately
responsible because of the difficulties of identify
ing the name and location of the relevant officials
of whose action or inaction complaint is to be
made. Generally the practice of identifying the
minister as the nominal party is a satisfactory
means of engaging the response of the relevant
officials. The present case demonstrates that this
practice has some shortcomings where orders of
the Court are not respected in letter or spirit. This
decision does not mean, however, that orders
might not be framed which would engage the
responsibility of officials other than the minister,
nor that contempt proceedings cannot be taken
against officials who knowingly impede compli
ance with orders issued against the minister or
someone else in the department. Such issues are
not before me in this proceeding, however.
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.