IMM-3296-00
Ali Abdalla Ali (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Ali v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Tremblay-Lamer J.--Ottawa, November 7, 2000.
Citizenship and Immigration -- Judicial Review -- Leave Requirements -- Due to lack of available judges, impossible to meet Immigration Act, s. 82.1(7) requirement for hearing matter within 90 days of granting leave -- Fairness to applicant superseding scheduling difficulties -- Leave granted, matter to be heard as soon as possible -- Word "shall" in Act, s. 82.1(7) interpreted as directory rather than mandatory resulting in no loss of jurisdiction.
Construction of Statutes -- Immigration Act, s. 82.1(7) -- Due to lack of available judges, impossible to meet Act, s. 82.1(7) 90-day requirement for hearing matter -- Leave granted nevertheless, matter to be heard as soon as possible -- Word "shall" in Act, s. 82.1(7) interpreted as directory rather than mandatory resulting in no loss of jurisdiction -- When provisions of statute relate to performance of public duty, and case such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, injustice to persons who have no control over those entrusted with duty, and at same time would not promote object of Legislature, practice to hold such provisions directory only: McCain Foods Ltd. v. Canada (National Transportation Agency); Montreal Street Railway Co. v. Normandin -- Doctrine applicable herein although here not matter of neglect but mere impossibility.
statutes and regulations judicially
considered
Immigration Act, R.S.C., 1985, c. I-2, s. 82.1(6) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73), (7) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73).
cases judicially considered
applied:
McCain Foods Ltd. v. Canada (National Transportation Agency), [1993] 1 F.C. 583; (1992), 8 Admin. L.R. (2d) 184; 152 N.R. 166 (C.A.); Montreal Street Railway Company v. Normandin, [1917] A.C. 170 (P.C.).
FIXING a date for the hearing of an application for judicial review when the 90-day requirement of subsection 82.1(7) of the Immigration Act cannot be met due to a lack of available judges to hear the matter. Order issued that the matter be heard expeditiously as soon as is materially possible.
appearances:
Micheal T. Crane for applicant.
Marcel R. Larouche for respondent.
solicitors of record:
Micheal T. Crane, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Tremblay-Lamer J.: In light of the particular circumstances relating to the issuance of the order I granted, I have decided exceptionally to deliver these reasons.
[2]Subsection 82.1(6) of the Immigration Act1 provides that:
82.1 . . .
(6) Subject to subsection (7), where leave to commence an application for judicial review is granted, the application for judicial review shall be deemed to have been commenced and the judge granting leave shall fix the day and place for the hearing of the application for judicial review.
[3]Subsection 82.1(7) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73] provides:
82.1 . . .
In fixing a day pursuant to subsection (6), the judge shall set the matter down for a day that is no sooner than thirty days, and no later than ninety days, after the day on which leave to commence the application for judicial review was granted, unless the parties agree that the matter may be set down on an earlier day.
[4]I have granted the application for leave in this file. However, I am unable, due to a lack of available judges to hear the matter, to obtain from the administration a date that would meet the 90-day requirement of subsection 82.1(7).
[5]I am, therefore, left with the following choices:
1. To wait and sign my order when there is a judge available to hear the matter; or
2. To sign the order immediately and be in non- compliance with the deadline set up in subsection 82.1(7).
[6]After careful consideration, I am of the view that I should issue the order at this time. It is most unfortunate that it cannot meet the time limits set out in subsection 82.1(7) but, in my view, it is in the interest of justice not to delay the issuance of the order. It is the lesser of two evils. Fairness requires that the applicant knows that leave has been granted and when it has been granted. In my opinion, this principle supersedes the difficulty of scheduling within the time limit, which is outside the control of the judge. I am satisfied that the spirit of subsection 82.1(7) is that the matter is heard expeditiously as soon as it is materially possible. Nemo tenetur ad impossibilia.
[7]The difficulty with this approach is that, by failing to comply with a legislative requirement, it would appear that I would lose jurisdiction. However, after careful consideration, I do not believe that it is the case. In my opinion, in the circumstances, the word "shall" in subsection 82.1(7) should not be interpreted as being mandatory.
[8]In McCain Foods Ltd. v. Canada (National Transportation Agency),2 the Federal Court of Appeal considered the mandatory/directory doctrine. Essentially, the Court applied the rule developed in Montreal Street Railway Co. v. Normandin3 where it was decided that when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only.
[9]Although in the present case, it is not by neglect but by mere impossibility that the order is not granted within the time limit, I am satisfied that the doctrine applies and that subsection 82.1(7) is merely directory.
[10]There is no doubt that there is a public duty imposed by the Act and that the person(s) who come under the jurisdiction of the Immigration Act have no control over the process and would be seriously disadvantaged if this order would be declared null and void. At the same time, I find no public interest served in doing so and it would not promote the main object of the Legislature.
[11]For these reasons, I have issued the attached order.
1 R.S.C., 1985, c. I-2 [s. 82.1(6) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73)].
2 [1993] 1 F.C. 583 (C.A.).
3 [1917] A.C. 170 (P.C.).