A-128-88
Timothy John Richardson (Applicant)
v.
Immigration Appeal Board and Minister of
Employment and Immigration (Respondents)
INDEXED AS: RICHARDSON V. CANADA (IMMIGRATION APPEAL
BOARD) (C.A.)
Court of Appeal, Heald, Marceau and MacGuigan
JJ.A.—Halifax, March 13, 1989.
Immigration `Practice — Immigration Appeal Board
refusing to extend time for bringing s. 72 appeal — Board's
decision set aside — Board having jurisdiction under Immi
gration Appeal Board Rules (Appellate), 1981, R. 9(2) to
consider application for extension — Latter constituting "tak-
ing any proceeding" — Minister of Employment and Immi
gration v. Kwan overruled.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 72 (as am.
by S.C. 1984, c. 21,s. 81).
Immigration Appeal Board Rules (Appellate), 1981,
SOR/81-419, RR. 9(2), 22.
CASE JUDICIALLY CONSIDERED
OVERRULED:
Minister of Employment and Immigration v. Kwan,
T-117-86, Addy J., order dated 14/2/86, F.C.T.D., not
reported.
COUNSEL:
Susan D. Coen for applicant.
Michael J. Butler for respondents.
SOLICITORS:
Goldberg, MacDonald, Halifax, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment of
the Court delivered orally in English by
HEALD J.A.: In refusing the applicant's motion
for an extension of time within which to file an
appeal pursuant to subsection 72(1) of the Immi
gration Act, 1976 [S.C. 1976-77, c. 52 (as am. by
S.C. 1984, c. 21, s. 81)], the Board relied on the
decision of the Trial Division in Minister of
Employment and Immigration v. Kwan (T-117-86,
Addy J., order dated 14/2/86, F.C.T.D., not
reported) wherein it was decided that the Board
did not have the authority to enlarge the time
prescribed under section 22 of the Immigration
Appeal Board Rules (Appellate), 1981 [SOR/
81-419], for bringing a section 72 appeal (5 days).
With every defence, we are all of the view that
subsection 9(2) of these same Rules does empower
the Board to grant such an enlargement.
That subsection provides "In the case of an
appeal brought pursuant to subsection 72(1) of the
Act, the Board may enlarge the time prescribed by
these Rules for doing any act or taking any pro
ceeding on such terms, if any, as seem just,
although the application for the enlargement is not
made until after the expiration of the prescribed or
fixed time."
Subsection 72(1) confers upon this applicant, as
a permanent resident, the right of appeal to the
Board from a removal order made against him, on
a question of law, or fact, or mixed law and fact as
well as upon equitable grounds.
In our view, an application for extension of the
five-day period specified in Rule 22 is clearly
within the contemplation of the language
employed in Rule 9(2). We do not agree with the
view of the Trial Division in Kwan that Rule 9(2)
"only authorizes the Board to enlarge the time
when an appeal has been brought, in other words,
when an appeal is already before it." In our opin
ion, such an interpretation reflects an unduly
restricted construction of the words used in Rule
9(2). Actually it is hardly possible to visualize a
factual scenario where Rule 9(2) could be utilized,
given such a narrow interpretation. We think that,
when someone in the position of this applicant who
has been given a right to appeal the exclusion
order issued against him, applies to extend the
time within which to file that appeal, he is "bring-
ing a proceeding" as that expression is used in
Rule 9(2).
Accordingly, the section 28 application will be
allowed, the decision of the Board set aside and the
matter will be referred back to the Board on the
basis that it has jurisdiction pursuant to Rule 9(2)
to consider the within application for extension of
time.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.