A-575-87
Minister of Employment and Immigration of
Canada and Attorney General of Canada (Appel-
lants)
v.
Selvadurai Kuganeswaran (Respondent)
INDEXED AS: KUGANESWARAN V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (C.A.)
Court of Appeal, Marceau, Hugessen and Desjar-
dins JJ.A.—Montréal, October 25, 1990; Ottawa,
January 9, 1991.
Immigration — Refugee status — Appeal from trial judg
ment quashing Immigration Appeal Board decision — Board
hearing redetermination of Convention refugee claim January
15, 1986 in absence of respondent — Board agreeing to reopen
hearing when informed notice of hearing not received, counsel
acted without instructions, and respondent planned to testify
— Commission ruling respondent ineligible under Refugee
Claims Backlog Regulations s. 2(d)(i), requiring no refugee
status hearing have commenced before May 21, 1986 — Trial
Judge declaring hearing void for breach of natural justice;
therefore no hearing commenced — Appeal allowed — Hear
ing commenced, although natural justice required reopening
— No statutory requirement rendering notice of hearing nulli
ty for failure to include Board's address in application form —
Concepts "void" and "voidable" applicable to legal acts, not to
facts.
Federal Court jurisdiction — Trial Division — Appeal from
Trial Judge's order quashing Immigration Appeal Board deci
sion — Trial Judge lacking jurisdiction to quash Board's
decision — Not referred to in application to quash Commis
sion's decision respondent ineligible under Refugee Claims
Backlog Regulations — Board's decision reviewable only by
Federal Court of Appeal under Federal Court Act, s. 28 —
Appeal allowed.
This was an appeal from the Trial Judge's order setting aside
a decision of the Immigration Appeal Board. The respondent,
from Sri Lanka, had applied to the Board in 1983 for a
redetermination of his claim to refugee status. A hearing was
scheduled for January 15, 1986, but the respondent had not
received notice of the hearing, having moved several times since
filing his application. Although he had notified the Canada
Immigration Commission of his changes of address, he had not
notified the Board as he was unaware of the different respon
sibilities of the two entities. Also, the Board's address did not
appear in the space provided therefor on the printed application
form. The respondent had lost contact with his lawyer, who had
also moved. That lawyer received the notice of hearing,
appeared before the Board and persuaded it to proceed in the
respondent's absence. The Board rejected the respondent's
claim, but later agreed to reopen the hearing when it learned
that the respondent had been unaware of the proceedings, had
planned to testify and that counsel had acted without instruc
tions. In the meantime, the respondent had been found ineli
gible under the administrative review program introduced by
the Refugee Claims Backlog Regulations as he did not meet
the condition in subparagraph 2(d)(i) requiring that no hearing
before the Board with respect to the redetermination of a claim
to refugee status have commenced before May 21, 1986. The
Regulations had been adopted after the Supreme Court of
Canada decision in Singh et al. v. Minister of Employment and
Immigration, which struck down the existing refugee claims
determination process which had permitted claims to be finally
dismissed without affording the claimant an oral hearing. They
were created to "fast track" all claimants who had made an
unsuccessful claim under the old procedure and who, still being
in Canada, were entitled to claim the benefit of Singh. Accord
ingly, those who had been granted an oral hearing at which the
tribunal could make a face-to-face determination of the credi
bility of the claimant were excluded from the backlog. The
respondent applied to the Trial Division for certiorari quashing
the ineligibility decision. The Trial Judge concluded that the
hearing did not comply with the rules of natural justice and was
void. As there had been no hearing, the respondent was not
ineligible for the program on the ground alleged. The appel
lants submitted that although the decision may have been
voidable, an oral hearing had commenced. The respondent
argued that for an oral hearing to have commenced, it must
have been valid. Adequate notice, physical presence and a duly
mandated counsel were required for a valid hearing. Respond
ent's submission was that the Regulations deserved a restrictive
interpretation since they operate as an exception to the usual
process. The issue was whether an oral hearing had never
commenced because the respondent had no notice, counsel was
uninstructed, and what happened was not an oral hearing
prescribed by Singh.
Held (Hugessen J.A. dissenting), the appeal should be
allowed.
Per Marceau J.A.: The Trial Judge erred in finding that a
hearing could not have begun. The eligibility condition was not
whether the hearing had taken place, but whether it had
commenced. The fact that the hearing was insufficient, inade
quate or incomplete does not mean that it could not have
begun. It cannot be said that a hearing only begins if it is
validly concluded.
In declaring the hearing void, the Trial Judge applied con
cepts to the hearing, a fact, which can only be applied to a legal
act. The distinction between absolute and relative nullity
applies only to legal acts and relates to their effects in legal
terms. A fact has either occurred or it has not; if it has
occurred, certain consequences may attach to it by law, but it
cannot be retroactively erased. For example, had the Board
proceeded with no one present and without informing anyone, it
would have been an apparent event, a mere semblance of a
hearing.
Furthermore, the Trial Judge lacked jurisdiction to quash the
Board's decision as the application before him did not refer to it
and could not refer to it as a decision of that nature can only be
reviewed by the Federal Court of Appeal under section 28 of
the Federal Court Act. The Board's decision is still valid.
Per Desjardins J.A.: The ordinary rules of interpretation
apply to the Regulations since what the provision says is at
issue.
The notice of hearing, required by the Board's own Rules,
was given according to law. There is no rule requiring a board,
which is a public authority with a public address, to indicate its
address on forms it provides on pain of having its notice of
hearing in jeopardy if it fails to reach a party who has moved
without giving notification of a change of address, although
warned to do so.
An oral hearing had commenced, although natural justice
required that it be reopened. If a court agrees to rehear a
motion because exceptional circumstances have caused the
absence of a party, or is called upon to set aside an earlier
decision on account of freshly obtained evidence not available
at the time of the trial, it cannot be said that the earlier
proceeding never took place.
Per Hugessen J.A. (dissenting): Since the respondent's credi
bility was at issue and he wanted to testify, but could not
through no fault of his own, what transpired on January 15 was
not an oral hearing that would have satisfied the requirements
of Singh and therefore not an oral hearing within the intend-
ment of subparagraph 2(d)(i).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix
II, No. 44], s. 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Federal Court Rules, C.R.C., c. 663, RR. 329, 330,
1733.
Immigration Act, 1976, S.C. 1976-77, c. 52.
Immigration Appeal Board Rules (Convention
Refugees), 1981, SOR/81-420, RR. 2, 5, 22 (rev. by
SOR/89-103).
Refugee Claims Backlog Regulations, SOR/86-701, s.
2(d)(i).
CASES JUDICIALLY CONSIDERED
REVERSED:
Kuganeswaran v. Canada (Minister of Employment &
Immigration) (1987), 3 Imm. L.R. (2d) 102; 13 F.T.R.
282 (F.C.T.D.).
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th)
422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1;
Al-Mehdawi v. Secretary of State for the Home Dept,
[1989] 3 All ER 843 (H.L.).
REFERRED TO:
Bamrah v. Canada (Minister of Employment and Immi
gration), A-1011-88, F.C.A., Marceau, Hugessen and
Desjardins JJ.A., judgment dated 11/10/89, not yet
reported; Canada (Minister of Employment and Immi
gration) v. Chan, A-1123-87, F.C.A., Pratte J.A., judg
ment dated 14/2/90, not yet reported; Wiswell et al. v.
Metropolitan Corpn. of Greater Winnipeg, [1965] S.C.R.
512; (1965), 51 D.L.R. (2d) 754; 51 W.W.R. 513; Har-
elkin v. University of Regina, [1979] 2 S.C.R. 561;
(1979), 96 D.L.R. (3d) 14; [1979] 3 W.W.R. 676; 26
N.R. 364; Uddin v. Canada (Minister of Employment
and Immigration), T-1017-87, F.C.T.D., Daoust J., judg
ment dated 2/12/88, not reported; Kaur v. Canada (Min-
ister of Employment and Immigration), [1990] 2 F.C.
209; (1989), 64 D.L.R. (4th) 317; 104 N.R. 50 (C.A.);
Gill v. Canada (Minister of Employment and Immigra
tion), [1987] 2 F.C. 425; (1987), 27 Admin. L.R. 257; 27
C.R.R. 235; 80 N.R. 1 (C.A.); Willis v. Canada (Minis-
ter of Employment and Immigration), A-793-87, F.C.A.,
Reed J., judgment dated 5/7/88, not reported.
AUTHORS CITED
Jones, David Phillip and de Villars, Anne S. Principles of
Administrative Law, Toronto: Carswell Co. Ltd., 1985.
COUNSEL:
J. LeVasseur for appellants.
Joyce Yedid for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Joyce Yedid, Montréal, for respondent.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.A.: The appeal here is from an
order of a Judge of the Trial Division [(1987), 3
Imm. L.R. (2d) 102]. The Judge allowed an
application for various prerogative writs made by
an immigrant claiming refugee status under the
Immigration Act, 1976 [S.C. 1976-77, c. 52] ("the
Act"), and by his order quashed a decision of the
Immigration Appeal Board and prohibited the
Minister of Employment and Immigration of
Canada and the Board itself from initiating or
proceeding with any execution proceedings what
ever against the respondent. To explain the highly
unusual nature of the situation created by the
proceedings and clearly indicate the problems pre
sented by the judgment a quo, it will be necessary
for me to look in some detail at the main facts and
examine their relationship to each other. They are
as follows.
On November 10, 1982 the respondent Sel-
vadurai Kuganeswaran, a citizen of Sri Lanka,
arrived in Canada without a visa or a visitor's
permit. The following day an adjudicator held an
inquiry concerning him in accordance with the
provisions of the Act, but in the course of this
inquiry he claimed refugee status, compelling the
adjudicator to delay his finding until the claim
could be considered. At that time the Act provided
that a claimant must submit to examination on
oath and the Minister would base his ruling upon
this: the respondent was examined on February 1,
1983 and the following June 13 informed that the
Minister's decision was unfavorable. The Act also
provided that a claimant rejected by the Minister
could request that his claim be redetermined by
the Immigration Appeal Board: the respondent
submitted the appi; ration for redetermination on
June 27, 1983, indicating that he was represented
by a lawyer named Leclaire.
During December 1985 the Immigration Appeal
Board set January 15, 1986 as the date for hearing
the application for redetermination submitted by
the respondent, and notified him by registered
mail of this in accordance with the provisions of its
rules of practice, at the same time informing his
counsel. On January 15 the respondent was not
present, but as his counsel and counsel for the
Minister were both ready to proceed the Board did
in fact go ahead with the hearing. Documentary
evidence was presented and representations made
on either side, after which the matter was taken
under advisement. On the following February 13,
the Appeal Board rendered judgment finding that
Mr. Kuganeswaran was not a Convention refugee.
The respondent was not told of this decision by
the Board until he received a notice of summons
on March 31, 1986 for the continuation of his
departure inquiry of November 11, 1982, which
was suspended to allow consideration of his claim
to refugee status. His reaction was straightforward
and quite understandable. Advised by new counsel,
he applied to the Appeal Board on May 23, 1986
and asked it to reopen the hearing of his applica
tion, alleging that he had never intended for the
hearing to go ahead in his absence and that the
only reason he was not present was because, due to
changes of address of which he thought he had
given sufficient notice, he never received any
notice that it was being held either from his coun
sel, with whom in any case he had not been in
contact for some time, nor from the Board itself.
On December 23, 1986 the Appeal Board told Mr.
Kuganeswaran that it was prepared to reopen the
application to redetermine his claim and sum
moned him to a hearing on April 29, 1987.
However, it so happened that between the filing
of the application for reopening and its acceptance,
namely on June 26, 1986, the Governor General in
Council had adopted the Refugee Claims Backlog
Regulations, SOR/86-701, which considerably
simplified and even placed on a new basis admis
sion to Canada, with landing for certain refugee
status claimants. On March 10, 1987 the respond
ent's new counsel applied to the Employment and
Immigration Commission and claimed the benefit
of the special Regulations of June 26, 1986 for his
client. He was given his answer on April 8 follow
ing, in a letter signed by Louis Grenier, Director:
it stated that Mr. Kuganeswaran was not eligible
for the administrative review program introduced
by the Regulations as he did not meet one of the
conditions stated in subparagraph 2(d)(i) of the
Regulations, the one requiring that no "hearing
[have] commenced on or before May 21, 1986
before the Board with respect to the redetermina-
tion of his claim for refugee status".
At that point counsel for the respondent applied
to the Trial Division for: (a) a writ of certiorari
quashing the decision of the Director, Grenier; (b)
a writ of mandamus directing the Minister of
Employment and Immigration to consider Mr.
Kuganeswaran's case under the administrative
review program; and (c) a writ of prohibition
against the Minister of Employment and Immigra
tion to prohibit any further proceedings involving
Mr. Kuganeswaran, and against the Appeal Board
to prohibit the holding of the hearing scheduled for
April 29, 1987. It is the Judge's order allowing this
application which is before the Court.
The approach taken by the Judge and his rea
sons are as follows. He first sets out the facts,
assesses their significance and draws two conclu
sions from them: first, there is no basis in the
circumstances for blaming Mr. Kuganeswaran for
failing to tell the Appeal Board itself of his
changes of address; second, there is also no basis to
doubt Mr. Kuganeswaran's statement that his
counsel, whom he could not reach for several
months, knew of his wish to attend the hearing so
that he could testify. From these two findings of
fact the Judge moves easily to the conclusion of
law that the hearing of January 15—at which Mr.
Kuganeswaran could not be present and make his
case, as he had not been told of it, and at which he
was represented by ill-informed counsel not
authorized to act alone—was not one that could
comply with the rules of natural justice. The Judge
felt that conclusion was decisive, since it is now
well-settled law that an infringement of the rules
of natural justice produces an absolute nullity.
There was accordingly no hearing, the Appeal
Board decision was void and Mr. Kuganeswaran
definitely could not be denied access to the special
program on the ground alleged, although at this
stage it was not yet possible to order his admission
as no evidence had been presented that he met the
other conditions of eligibility.
Was this judgment by the Trial Judge valid and
should it be approved? I must say, with all due
respect, that I do not think so. It is not that I have
any difficulty with the Judge's findings of fact, or
that I find the conclusion he draws from them,
namely that the January 15 hearing could not
meet the standards of natural justice, to be unten
able; however, I do not think that could be a basis
for the Judge disposing of the application as he
did.
There is, first of all, no doubt that the Judge
could not render a judgment quashing the Appeal
Board's decision. The application that was before
him did not refer to that decision and moreover
could not refer to it, as a decision of that nature
can only be reviewed by the Federal Court—
Appeal Division, under section 28 of the Court's
enabling Act [Federal Court Act, R.S.C., 1985, c.
F-7]. Should it not be said that this was simply an
error made in describing the decision concerned?
Perhaps, but then the Appeal Board's decision is
still in effect and must be taken as valid; it is a
decision which, by the very terms of the Act on
which it is based, can only be rendered after a
hearing. It is hard to see how another tribunal
could add to it a decision which, contradicting
what it assumes, directs a public official simply to
ignore the content and meaning of it.
However, my objection is not limited to this
initial question of jurisdiction; it goes to the
Judge's very reasoning as to the substantive prob
lem and so to his dispositions in general.
I think, first, that the Judge did not allow
sufficiently for the fact that the eligibility condi
tion, the existence of which has to be determined,
is not whether the hearing has taken place yet but
rather whether the hearing has begun yet, in other
words, is under way yet. I have already said that I
accepted the Judge's conclusion that the January
15 hearing could not meet the requirements of the
rules of natural justice. With a valid application
for review before it this Court might possibly have
vacated the Appeal Board's decision, and the latter
was wise to allow the application to reopen, as its
refusal probably would not have stood up to a
section 28 challenge, any more than the refusal it
gave in a similar case in Bamrah v. Canada (Min-
ister of Employment and Immigration), No.
A-1011-88, not yet reported, judgment in which
was rendered on October 11, 1989; however, the
fact that the hearing was insufficient, inadequate
or incomplete does not mean that it could not have
begun. Clearly, it cannot be said that a hearing
only begins if it is validly concluded.
Secondly, I think that the Judge misapplied to
the January 15 hearing, namely to a fact, a pro
cess, a material event, concepts which can only be
applied to a legal act, such as for example the
decision of the Appeal Board. The distinction be
tween absolute and relative nullity applies only to
legal acts and relates to their effects in legal terms.
A fact either has occurred or has not; if it has
occurred, it can be recognized as having certain
consequences attaching to it by law, but it cannot
be retroactively vacated or wiped out. If it could be
said that what occurred before the Appeal Board
on January 15 could not in any way constitute a
hearing or part of a hearing; if, for example, the
Board had proceeded with no one present and
without informing anyone, it would then have been
possible to speak simply of an apparent event, a
mere semblance of a hearing, as the fact itself
would never have existed. However, that is defi
nitely not the case: the notices of hearing were
given in due form; the parties were represented
(Mr. Leclaire was the solicitor of record and his
instructions, whatever their extent, had not been
withdrawn); documentary evidence was filed;
representations were made on either side. Clearly
it is not possible to speak of a mere semblance of a
hearing simply because the respondent was not
himself physically present; and I do not think that
all this can retroactively vanish as the result of a
judgment to quash.
In short, based simply on the fact that the
hearing held on January 15 could not meet the
rules of natural justice and the decision of the
Board was accordingly not in due form, the Judge,
in my opinion, which I repeat is given with all due
respect, could not conclude that a hearing had not
begun for the purposes of eligibility for the
administrative review program mentioned in the
Regulations (cf. the judgment of this Court in
Canada (Minister of Employment and Immigra
tion) v. Chan, No. A-1123-87, rendered on Febru-
ary 14, 1990, not yet reported).
I would accordingly allow the appeal with costs
and set aside the Judge's order vacating the deci
sion of the Appeal Board and prohibiting the
Minister and the Board from bringing any execu
tion proceeding whatever against Mr. Kuganeswa-
ran.
The respondent himself filed a counter-appeal to
challenge the Judge's refusal to grant all the items
in his application. Naturally, this counter-appeal
can only be dismissed, but as counsel did not insist
at the hearing, it should I think be dismissed
without costs.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A. (dissenting): I have had the
benefit of reading the reasons for judgment pre
pared by my colleague Desjardins J.A. I regret
that I am unable to agree with her.
It is unnecessary to repeat the facts which have
been fully set out by Desjardins J.A. I wish,
however, to emphasize two matters which may not
be apparent from a reading of her reasons.
In the first place, the issue before the Immigra
tion Appeal Board clearly turned on the degree of
credibility to be accorded to the respondent's tale
of detention and torture in Sri Lanka. The nega
tive decision of the Minister on the respondent's
original refugee claim reads as follows:
Your allegations of torture during your 1979 and 1980 deten
tions appear exaggerated, in view of your minor role in TULF
propaganda and demonstration activities. You also provided
insufficient explanation to support your allegations regarding
the extensive mistreatment of several of your family members.
It also does not appear credible that you could have been
involved politically until the last days before your departure
and have succeeded in obtaining your passport in a few days.
(Case Appendix, page 4)
The second point has to do with the Board's
failure to send a notice of hearing to the respond
ent as it was required to do by its own rules. The
appellants attribute this to the respondent's own
fault in failing to notify the Board of his several
changes of address. In my view, however, and
quite apart from the Trial Judge's finding that the
respondent was not at fault, both Immigration
Canada and the Board are not free from blame in
this respect. It is clear, and the Trial Judge so
found, that the respondent at all times notified
Immigration Canada of each of his changes of
address. At the hearing before the Board held
January 15, 1986, Immigration Canada was
present and represented by one Harry Langston.
The question of the difficulties being experienced
in contacting the respondent was discussed but
Mr. Langston at no point volunteered the crucial
information that he alone seemed to have, namely
the respondent's current address.' The Board, too,
contributed to the problem: in the printed form of
application for redetermination provided by the
Board, the following appears at the bottom:
REPORT ANY CHANGE OF ADDRESS TO THE REGIS
TRAR IMMIGRATION APPEAL BOARD at
(Case Appendix, page 6)
The blanks have not been filled in and it is
difficult to know what the respondent might have
done other than to advise Immigration Canada as
he did.
The very narrow question to be determined on
this appeal is to know whether what transpired on
January 15, 1986, before the Immigration Appeal
Board was sufficient to constitute an oral hearing
so as to exclude the respondent from the definition
of "member of the refugee claims backlog" by the
operation of subparagraph 2(d)(i) thereof:
2....
"member of the refugee claims backlog" means a person who
(d) is not a person
(i) with respect to whom an oral hearing commenced on
or before May 21, 1986 before the Board with respect to
the redetermination of his claim for refugee status.... 2
In fact, on March 25, 1986, shortly after the Appeal
Board's decision, Immigration Canada wrote to the respondent
at his correct address.
2 Refugee Claims Backlog Regulations, SOR/86-70I, 26
June, 1986.
In my view, a proper answer to that question
requires an understanding of the background
against which the Regulation was adopted. The
principal feature of that background is the decision
of the Supreme Court of Canada in the landmark
case of Singh et al. v. Minister of Employment
and Immigration, [1985] 1 S.C.R. 177. That case
struck down the central feature of the existing
refugee claims redetermination process as being
inconsistent with Charter values. The principal
reason for such inconsistency was precisely the
fact that the system permitted refugee claims to be
finally dismissed without ever affording the claim
ant the opportunity of an oral hearing. On this
point, Wilson J. said as follows:
I should note, however, that even if hearings based on written
submissions are consistent with the principles of fundamental
justice for some purposes, they will not be satisfactory for all
purposes. In particular, I am of the view that where a serious
issue of credibility is involved, fundamental justice requires that
credibility be determined on the basis of an oral hearing.
Appellate courts are well aware of the inherent weakness of
written transcripts where questions of credibility are at stake
and thus are extremely loath to review the findings of tribunals
which have had the benefit of hearing the testimony of wit
nesses in person: see Stein v. the Ship `Kathy K", [1976] 2
S.C.R. 802, at pp. 806-08 (per Ritchie J.). I find it difficult to
conceive of a situation in which compliance with fundamental
justice could be achieved by a tribunal making significant
findings of credibility solely on the basis of written
submissions.' [Emphasis added.]
As a result of the judgment in Singh, many
thousands of refugee claimants became entitled to
an oral hearing which they had been previously
denied. The Board was swamped with applications
far beyond its physical capacities. The Refugee
Claims Backlog Regulations were created to "fast
track" all claimants who had made an unsuccess
ful claim under the old procedure and who, still
being in Canada, were entitled to claim the benefit
of the Singh decision. In those circumstances, it
was only natural to exclude from the backlog those
persons who, even under the old procedure, had
been granted an oral hearing which met the
requirements laid down by the Court. That, of
course, meant an oral hearing at which the tri
bunal could make a face-to-face determination of
the credibility of the claimant, where that was in
issue.
3 Singh et al. (above), at pp. 213-214.
Here, the respondent's credibility was clearly in
issue. He was never given notice of the hearing of
January 15, 1986 even though Rule 22(1) 4 specifi
cally called for service of notice on him. He wished
to be present at the hearing and was not. He
wished to testify and did not. All this was due to
no fault of his own. In those circumstances it
seems to me that, whatever took place on January
15, it was not an oral hearing that would have
satisfied the requirements of Singh.
It is not necessary to deal here with the question
of a possible waiver of the claimant's right to an
oral hearing. The Trial Judge has found as a fact
that the respondent did not give any such waiver
and that his lawyer, "off on a frolic of his own",
was acting without authority.' Nor is it necessary
to enter into a debate as to whether what took
place on January 15, 1986 was void or merely
voidable; it is enough to say that in the context of
the Refugee Claims Backlog Regulations it was
not an "oral hearing" within the intendment of
subparagraph 2(d)(i) of the definition of "member
of the refugee claims backlog".
I would dismiss the appeal other than to correct
the clerical error by which the Trial Judge referred
to the decision of the Board dated March 13, 1986,
rather than to the decision of Immigration Canada
dated April 8, 1987 determining the respondent
not to be admissible for administrative review.
* * *
Immigration Appeal Board Rules (Convention Refugees),
1981, SOR/81-420. (Since revoked [SOR/89-1031).
5 That finding, however, does not make this a case where the
respondent's problems are due to his counsel's negligence, as
was the case in the recent decision of the House of Lords in
Al-Mehdawi v Secretary of State for the Home Dept, [1989] 3
All ER 843. It is clear here that the Board was determined to
proceed whether or not counsel participated; it had fixed the
hearing "peremptorily" despite its failure to give notice in
accordance with its own rules and Immigration Canada's fail
ure to reveal that it knew respondent's address. In those
circumstances, counsel's "frolic" was a relatively minor contri
bution to the miscarriage of justice which occurred.
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A.: The respondent contends he
is entitled to have his refugee claim processed
under the Refugee Claims Backlog Regulations. 6
The appellants deny his entitlement to do so.
We are seized with an appeal taken from the
order of Rouleau J., dated June 12, 1987, who, on
respondent's application for certiorari, prohibition
and mandamus, granted the certiorari setting
aside the decision of the Immigration Appeal
Board ("the Board") dated February 13, 1986,
issued the order of prohibition requested and dis
missed the application for mandamus. A cross-
appeal on the refusal of the Trial Judge to issue
the mandamus was taken but was not pressed
before us.
At issue is whether the Trial Judge was correct
in concluding that the respondent meets the
requirement of subparagraph 2(d)(i) of the
Refugee Claims Backlog Regulations in that he
"is not a person with respect to whom an oral
hearing commenced on or before May 21, 1986
before the Board with respect to the redetermina-
tion of his claim for refugee status."'
The facts, as summarized by the Trial Judge,
are the following: 8
The applicant, a citizen of Sri Lanka, arrived in Canada on
November 10, 1982, and immediately claimed refugee status at
the port of entry, Mirabel Airport. An inquiry date was
arranged for November 11, 1982, at which time the applicant
6 SOR/86-701, 26 June, 1986.
Subparagraph 2(d)(i) of the Refugee Claims Backlog
Regulations provides as follows:
2. In these Regulations,
"member of the refugee claims backlog" means a person who
(d) is not a person
(i) with respect to whom an oral hearing commenced on
or before May 21, 1986 before the Board with respect to
the redetermination of his claim for refugee status ....
8 At pp. 104-106.
once again claimed refugee status. The adjudicator adjourned
the inquiry pursuant to subs. 45(1) of the Immigration Act,
S.C. 1976-77, c. 52, as amended, and imposed certain terms
and conditions on the applicant pursuant to s. 104 of the
Immigration Act. On February 1, 1983, the applicant com
pleted an examination under oath respecting his claim before a
senior immigration officer pursuant to subs. 45(1) of the Act.
Subsequent thereto, the applicant's claim, together with a
transcript of the examination under oath, was referred to the
Minister of Employment & Immigration. By letter dated April
27, 1983, the applicant was advised of the Minister's decision
that the applicant was not a Convention refugee as defined in
subs. 2(1) of the Act.
Upon receipt of this decision, the applicant attended the
office of his solicitor, Mr. Gérard Therrien, who advised the
applicant that he was not in a position to represent him and
who directed him to another lawyer from the same office, Mr.
Michel Leclaire. The purpose of the applicant retaining the
services of a lawyer was to obtain assistance in making an
application for a redetermination of a claim to be a convention
refugee. At the time of this initial meeting between the appli
cant and his lawyer Mr. Leclaire, the latter's address was 7244
St-Denis Street in Montreal. On June 27, 1983, the applicant
again attended the office of Mr. Leclaire in order to sign his
application for redetermination and the declaration under oath.
This appointment took place at Mr. Leclaire's law office which
had been relocated to 5846-2nd Avenue in Rosemont. On both
of the documents which the applicant executed at this appoint
ment his address appeared as 1240 Fort Street in Montreal.
The applicant advised Mr. Leclaire that his current address was
5555 Hutchinson, Apartment 102 in Montreal and was appar
ently reassured that the change would be made.
Thereafter the applicant changed his place of residence to
6585 Park Avenue, Apartment 26 in Montreal. He advised the
Canada Immigration Commission of this change of address and
also attended his lawyer's office to advise of the change. The
applicant did not, however, advise the Immigration Appeal
Board of his new address as he was under the impression that
his lawyer would do so and that the notice of change of address
at the Canada Immigration Commission would suffice. It was
the commission which the applicant had been ordered to report
such a change to. Later the applicant moved to 1180 Fort
Street in Montreal, and again advised the Canada Immigration
Commission of the change of address. The applicant attempted
to advise his lawyer Mr. Leclaire of his new address but, upon
attendance at the latter's office, he found that his solicitor had
moved; the applicant had not received a change of address
notice from his lawyer nor was he able to trace Mr. Leclaire.
Although the applicant had completed a change of address
notice which he left with the post office to ensure that all mail
would be correctly rerouted to his current address, the appli
cant received no communication from Mr. Leclaire.
In 1986 the applicant again moved to 7171 Chateaubriand,
Apartment 29 in Montreal. Again he advised the Canada
Immigration Commission of the change; however, being unable
to locate Mr. Leclaire, the applicant took steps to retain the
services of another lawyer.
In the meantime, a hearing was scheduled before the Immi
gration Appeal Board relating to the applicant's application for
a redetermination of a claim to be a Convention refugee. The
hearing date was January 15, 1986. Although notice of the
hearing was apparently sent to the applicant in December of
1985, the applicant never received it nor was he made aware of
the date of his hearing by his then lawyer, Mr. Leclaire.
The applicant became aware that something was amiss when
he received - a letter from the Canada Immigration Commission
dated March 25, 1986, stating in part:
Following the unfavourable decision of the Immigration
Appeal Board concerning your claim to (sic) redetermination
to be a Convention refugee, you will have to present yourself
at the Canada Immigration Centre ... for the resumption of
your inquiry.
Attached to the letter was a copy of the Immigration Appeal
Board's decision. Upon investigation it was revealed that Mr.
Leclaire had attended the hearing on January 15, 1986 and had
asked the board for and obtained permission to proceed in the
absence of the applicant. Based on the evidence and documen
tation submitted by Mr. Leclaire, the board rendered its deci
sion on February 13, 1986.
On May 23, 1986, the respondent filed with the
Board a motion to have his case reopened. 9 In his
affidavit, he explained that, during the relevant
period, he regularly filed his changes of address
with the Canada Immigration Commission and
with the Post Office, that he contacted his lawyer
thinking that the latter would file his changes of .
address with the Board, that at some point he lost
track of his counsel and was in the process of
changing attorneys when he was notified of the
Board's decision rejecting his claim for redetermi-
nation. He said he was unaware of the proceeding
of January 15, 1986, had planned to testify during
his hearing and that his counsel acted without
instructions. The Board granted his motion on
December 23, 1986. 10 The hearing was set to be on
April 29, 1987."
On March 10, 1987, the respondent's new coun
sel requested that the respondent's application be
processed under the provisions of the Refugee
Claims Backlog Regulations. The reply signed by
Mr. Louis Grenier, Director, Canada Immigration
9 A.B., App. I, at p. 49.
10 A.B., App. I, at p. 41.
A.B., App. I, at p. 70.
Commission, Galt, on April 8, 1987, was the
following: 12
[TRANSLATION] I wish to confirm hereby that Mr. Selvadurai
Kuganeswaran was not eligible for the administrative review
since the hearing of the application to reconsider his claim
began before the Commission before May 21, 1986, as provided
in s. 2(d)(i) of the Refugee Claims Backlog Regulations.
The hearing of your client's application for reconsideration
was held on January 15, 1986. The fact that the IAB has now
granted your application does not mean that there was not a
hearing, but that the IAB agrees to reopen the hearing that has
already been held.
The respondent's position before the Trial Judge
was that since the claimant had not received notice
of the hearing of January 15, 1986, was not
present at the hearing and did not authorize his
lawyer to represent him in his absence, there could
not have been a commencement of an oral hearing
as contemplated by subparagraph 2(d)(i) of the
Refugee Claims Backlog Regulations. The appel
lants, on the other hand, argued that there had
been a hearing; the respondent had been heard
through his lawyer before a properly constituted
tribunal with relevant documents on file and evi
dence submitted. Because his lawyer was not man
dated to act in his absence did not mean that an
oral hearing had not commenced.
The Trial Judge stated that, according to the
Immigration Appeal Board Rules (Convention
Refugees), 1981, 13 notice of the hearing had to be
served on the party as well as his solicitor. 14 The
purpose of the notice requirements was to allow a
person to know how he might be affected and to
prepare himself adequately to make representa
tions. The effect of inadequate or no notice would
render the actions of the decision-making body
void. Wiswell et al. v. Metropolitan Corpn. of
Greater Winnipeg 15 was cited. No party, according
to the Trial Judge, could properly present its case
12 A.B., App. I, at p. 58.
"SOR/81-420, 28 May, 1981.
14 Immigration Appeal Board Rules (Convention Refugees),
1981:
22. (1) Where the Board allows an application to proceed,
the registrar shall serve notice of the time and place of the
hearing on the parties to the application and their counsel.
(2) The date set for the hearing of an application shall be
not less than fifteen days from the date of service of the
notice referred to in subsection (1).
15 [1965] S.C.R. 512.
without knowing what might be said against it.
But it was not enough to simply know the case to
be met; the opportunity to present one's side of the
matter was also essential. That did not happen, in
the case at bar, since proper service had not been
possible and since respondent's counsel before the
Board had not received instructions. He said: 16
Applying the above principles of natural justice to the case at
Bar, it is my opinion that the applicant was not afforded an oral
hearing as required by the Immigration Appeal Board Rules.
First, those rules are clear that notice of the time and place of
the hearing shall be served on the party affected as well as his
counsel. Service of notice on the applicant's counsel only is not
sufficient. It is difficult to ascertain exactly why the Immigra
tion Appeal Board was unable to serve notice on the applicant.
Certainly the Canada Immigration Commission was, at all
material times, aware of the applicant's whereabouts since the
applicant was diligent in reporting all changes of address to
that body. I can find no fault with the applicant's conduct in
this regard. Second, although subs. 23(1) of the Rules allows a
party to be represented by counsel at the hearing of an applica
tion, such representation contemplates, in my view, that counsel
be acting under the instructions of his client and not off on a
frolic of his own. Mr. Leclaire as counsel was acting beyond the
scope of his duties by representing the applicant at the redeter-
mination hearing. The evidence is clear that he did not have
instructions to do so from the applicant who was in fact in the
process of retaining another counsel as he was unable to contact
Mr. Leclaire. More damaging to the whole process was the fact
that Mr. Leclaire knew very little about the applicant and was
unaware of the fact that the applicant wished to testify at the
hearing and to call witnesses as was his right under the Rules.
The Trial Judge concluded that what transpired
before the Board on January 15, 1986 was not a
hearing as set out in the Immigration Appeal
Board Rules (Convention Refugees), 1981 and
therefore not an oral hearing as referred to in
subparagraph 2(d)(i) of the Refugee Claims
Backlog Regulations.
The appellants submit that the Trial Judge
could not, in his order, set aside the decision of the
Board of February 13, 1986 since what was at
stake was the decision by Mr. Louis Grenier,
16 At pp. 110-111.
Canada Immigration Commission, dated April 8,
1987, refusing the claim to be processed under the
provisions of the Refugee Claims Backlog Regu
lations. The point was conceded by the respondent.
But more importantly, the appellants submit that
what is at issue here, for the purpose of deciding
whether "an oral hearing commenced on or before
May 21, 1986" as provided in subparagraph
2(d)(i) of the Refugee Claims Backlog Regula
tions, is not the validity of the decision arrived at
by the Board on February 13, 1986, but the exist
ence of the proceeding which took place on Janu-
ary 15, 1986. The decision may possibly be void-
able, were the principles of natural justice not
followed,' 7 but nevertheless an oral hearing has
commenced.
The respondent claims that for an oral hearing
to have commenced, the oral hearing must have
been a valid one. This would include as necessary
components: adequate notice, physical presence
and a duly mandated counsel. The purpose of the
notice is to allow the person whose rights are
affected to appear in person, to retain and instruct
counsel, to prepare the case, to assign witnesses, to
prepare proper representations, etc. His physical
presence was essential for an oral hearing to take
place since, according to the Minister's decision of
April 27, 1983, his credibility was at stake. No
"oral hearing" could take place without the claim
ant taking a stand and speaking.]$ There is no
evidence that his counsel, who represented him in
1983, at the time of the application for redetermi-
nation, still held a mandate in 1986 before the
Board. If what happened on January 15, 1986 was
not valid, nothing could have "commenced".
Moreover, says the respondent, the hearing of
January 15, 1986 is void, not voidable, on account
of the severity of the penalty. 19
"As held in Harelkin v. University of Regina, [1979] 2
S.C.R. 561, at p. 585.
18 In contrast, counsel cited Uddin v. Canada (Minister of
Employment and Immigration), T-1017-87 (F.C.T.D.) not
reported and Canada (Minister of Employment and Immigra
tion) v. Chan, A-1123-87 (F.C.A.), supra.
19 Jones and de Villars, Principles of Administrative Law
(Toronto: Carswell, 1985) at p. 193 was cited.
The Refugee Claims Backlog Regulations were
announced on May 21, 1986 and came into effect
shortly thereafter. They were meant to assist in the
processing of a potentially large backlog of refugee
claimants, pursuant to the decision of the Supreme
Court of Canada in Singh et al. v. Minister of
Employment and Immigration. 20 In effect, they
allow the persons covered by the Regulations
(defined as "member of the refugee claims back
log") to be exempted from most of the normal
requirements for admission to Canada as immi
grants, provided they meet certain limited criteria
upon which an immigration officer is enabled to
conclude that they are "likely to become estab
lished in Canada". The appellants invite us to give
these Regulations a restrictive interpretation since
they operate as an exception to the usual process. I
conclude on that point that the ordinary rules of
interpretation apply since what we are concerned
with here is what the provision says.
The transcript of the proceedings before the
Board indicates that the respondent had not been
reached, that the respondent's counsel had been
difficult to reach but that he had received, on
December 16, 1985, a notice for a hearing to be
held peremptorily on January 15, 1986. He
informed the Board on that day that he had been
unable to contact his client presumably on account
of a change of address. He indicated that the only
witness he had been planning to call was his client
but, in view of his absence, he would use the
affidavit on file and would submit documentary
evidence. He persuaded the Board to proceed as he
said: 21
[TRANSLATION] Whether my client was present or not, he was
represented by counsel duly—who was authorized to represent
clients before an Appeal Board, and my colleague also knew
from the affidavit that the only witness who possibly might be
heard was my client. So I feel the Board has the right to make
a decision based solely on the sworn statement and the docu
ments submitted to you today, even though my client is absent,
since he is represented by counsel.
When the Board, by an affidavit in support of
respondent's motion to reopen his claim for rede-
termination, became aware of the respondent's
20 [1985] 1 S.C.R. 177.
21 A.B., at p. 24.
version of the facts, it granted the motion to
reopen. Natural justice and section 7 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]] would have prevented
it from using its discretion otherwise. 22 The Board
is therefore about to give the respondent the op
portunity of exercising his constitutional rights.
But, and this is the issue here, can it be said that
an oral hearing never commenced on January 15,
1986 because the respondent was not reached,
because he who spoke had no mandate, and
because what happened that day was not an oral
hearing prescribed by Singh?
Rule 22 of the Immigration Appeal Board
Rules (Convention Refugees), 1981 requires that
notice of the time and place of the hearing be
served "on the parties to the application" Huges-
sen J.A., in his reasons for judgment, points out
that the Board is not free from blame with regard
to its failure to reach the respondent. He refers, in
particular, to a note entitled "Important", which
appears at the bottom of the printed form of
application for redetermination provided by the
Board, which reminds the claimant to report any
change of address to the Registrar of the Board,
but fails to specify the address of the Board.
Further down, Hugessen J.A. notes the Board's
"failure to give notice in accordance with its own
rules".
This flaw on the Board's form is unfortunate
considering that the respondent has indicated in
his affidavit, in support of his motion to reopen his
claim for redetermination, that his dealings had
been with Immigration Canada and that he did not
understand the different responsibilities between
the Immigration Appeal Board and the Immigra
tion Commission. 23 His explanation, which relates
22 See Bamrah v. Canada (Minister of Employment and
Immigration), A-1011-88, October 11, 1989 (F.C.A.) where
the facts, on the motion to reopen, are very similar to those of
the case at bar. For another example of a case of a motion to
reopen, this time with regard to an adjudicator's decision, see
Kaur v. Canada (Minister of Employment and Immigration),
[1990] 2 F.C. 209 (C.A.). See also Gill v. Canada (Minister of
Employment and Immigration), [1987] 2 F.C. 425 (C.A.).
to the ignorance of the law, militates in favour of
the reopening of the hearing by the Board in the
exercise of its discretion. Similar considerations
with regard to the Board's form were noted by the
dissenting member of the Immigration Appeal
Board in Bamrah v. Canada (Minister of Employ
ment and Immigration), 24 later confirmed by this
Court on different grounds. 25 What we are con
cerned with here, however, is compliance with a
statutory requirement. The Board proceeded with
the address on file. 26 I was not cited nor am I
aware of any rule which requires a board, which is
a public authority with a public address, to indi
cate its address, on the forms it makes available,
on pain of having its notice of hearing in jeopardy
if it fails to reach a party who has moved without
notifying of its change of address, although
warned to do so. The notice of the hearing, in my
view, was given according to law. For this reason,
the expressions "void" and "voidable", which de
veloped in the case law where boards are at fault,
are of no assistance to characterize the decision of
February 13, 1986. In addition, the possible pre-
23 A.B., Appendix at pp. 14-15.
24 M87-1708X, September 20, 1988.
25 See note 22.
26 Rule 5 of the Immigration Appeal Board Rules (Conven-
tion Refugees), 1981 states:
5. Service of any document or notice provided for by these
Rules shall be effected
(a) by personal service;
(b) by registered mail; or
(c) in such other manner as the Chairman directs.
These Rules do not contain, with regard to a party, a definition
such as the one found in Rule 2 "address for service" of the
Federal Court Rules [C.R.C., c. 663] but, in my view, it
amounts to the same thing. The latest address on file appears to
be the rule. For an example, see Willis v. Canada (Minister of
Employment and Immigration), A-793-87 (F.C.A.) not
reported.
sumptuous attitude of his counsel before the Board
is not an error of the Board. 27
What happened on January 15, 1986 was not an
oral hearing as prescribed by Singh. But that is
not the issue. What is at issue is whether "an oral
hearing commenced." on January 15, 1986. I read
subparagraph 2(d)(i) of the Refugee Claims
Backlog Regulations as meaning that the special
program applies if the oral hearing, under the
usual process, has not commenced on or before the
cut-off date. In my view, the usual process, and a
valid one, has commenced. Even if we were to
assume for a moment that counsel would not have
made the statement he made and that the Board
would have proceeded, since the matter had been
set peremptorily, the oral hearing would still have
commenced although natural justice would require
that the case be reopened. If a court of law agrees
to rehear a motion because exceptional circum
stances have caused the absence of a party, 28 or is
called upon to set aside an earlier decision on
account of freshly obtained evidence not available
at the time of the trial, 29 can it be said that the
earlier proceeding never took place? I do not think
so.
In the case at bar, the oral hearing does not
comply with Singh and must be redone. The pro
cess with regard to the oral hearing, however, has
commenced.
I would allow the appeal, set aside the decision
of Rouleau J. dated June 12, 1987, and would
affirm the decision of Mr. Louis Grenier, Canada
Immigration Commission dated April 8, 1987.
The whole with costs on the appeal but without
costs on the cross-appeal.
27 Al-Mehdawi y Secretary of State for the Home Dept,
[1989] 3 All ER 843 (H.L.). Presumably, the responsibility
for checking the respondent's latest address with Immigra
tion Canada, before the hearing, would lie primarily with his
own counsel instead of with the representative for immigra
tion Canada who would learn about the absence of the
respondent only at the hearing.
28 Rule 329 of the Federal Court Rules. See also Rule 330
[as am. by SOR/79-58, s. 1].
29 Rule 1733 of the Federal Court Rules.
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.