The Attorney General of Canada (Applicant)
v.
Marc Michel Cylien (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Montreal, November 19 and 20,
1973.
Judicial review—Deportation order—Respondent claiming
status of "refugee'—Appeal to Immigration Appeal Board—
Declaration of respondent—Whether Board to consider
"declaration" alone—Evidence—Interpretation of "deci-
sion"—Jurisdiction of Federal Court of Appeal—Federal
Court Act, s. 28—Immigration Appeal Board Act, s. 11 (as
amended by 1973, c. 27).
By an amendment to section 11 of the Immigration
Appeal Board Act (1973, c. 27, effective August 15, 1973) a
right of appeal from a deportation order is permitted only
where the deportation order was made against a permanent
resident, a holder of a visa issued outside Canada, a person
claiming to be a "refugee" protected by the 1951 United
Nations Convention Relating to the Status of Refugees, or a
person claiming to be a Canadian citizen. By subsection
11(2), where the appeal is based on a claim that the appel
lant was a "refugee" or a Canadian citizen the notice of
appeal must contain a declaration under oath setting out all
the particulars on which the claim is based. By subsection
11(3), where the appeal is based on a claim under subsection
11(2), a quorum of the Immigration Appeal Board must, on
notice of appeal, consider the declaration and if "on the
basis of such consideration" there are reasonable grounds to
believe "that the claim could, upon the hearing of the
appeal, be established" it must allow the appeal to proceed
or refuse to allow the appeal and direct the deportation
order to be executed.
On August 30, 1973 the respondent appealed from a
deportation order and on September 5, 1973 made a declara
tion explaining why he was claiming status as a "refugee". A
panel of three members of the Board made an order direct
ing that the "record" of the inquiry leading up to the
deportation order be transmitted to the Board under Regula
tion 4(4)(a). The Attorney General of Canada applied for
judicial review under section 28 of the Federal Court Act
submitting that the Board was required to decide whether
the appeal was to proceed upon a consideration of the
"declaration" alone and not upon a review of the "record".
Held, the application is dismissed. The Board's conclusion
as to the nature of its statutory duty under section 11(3) is
not a decision made by it in the exercise of its "jurisdiction
or powers" to make decisions and is not, therefore, a
"decision" that this Court has jurisdiction to set aside under
section 28(1) of the Federal Court Act.
National Indian Brotherhood v. Juneau [1971] F.C. 66,
referred to.
APPLICATION for judicial review.
COUNSEL:
Paul 011ivier, Q.C., and Duff Friesen for
applicant.
Reynold Icart for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Communications to 3878 St. Hubert St.,
Montreal, for respondent.
JACKETT C.J. (orally)—This is an application
by the Attorney General of Canada under
section 28 of the Federal Court Act. On the
application for directions, counsel for the Attor
ney General was put on notice that the Court
would have to be satisfied that the subject
matter of the application falls within section 28.
Submissions concerning the Court's jurisdiction
were, accordingly, made when the application
came on for hearing.
Before the jurisdiction problem can be stated,
it is necessary to review the background. This
may be done as follows:
1. Prior to the coming into force of chapter 27
of the Statutes of 1973 on August 15, 1973,
section 11 of the Immigration Appeal Board
Act conferred on every person against whom a
deportation order had been made under the
Immigration Act a right to appeal to the Immi
gration Appeal Board.
2. Since August 15, 1973, section 11 of the
Immigration Appeal Board Act, as amended by
chapter 27,
(a) has conferred, by subsection (1), such a
right of appeal but only where the deportation
order was made against
(i) a permanent resident,
(ii) a holder of a visa issued outside
Canada,
(iii) a person claiming to be a "refugee"
protected by the 1951 United Nations Con
vention Relating to the Status of Refugees,
or
(iv) a person claiming to be a Canadian
citizen,
(b) has provided, by subsection (2), that
where such an appeal is based on a claim that
the appellant was a "refugee" or a Canadian
citizen, the notice of appeal must contain a
declaration under oath setting out
(i) the nature of the claim;
(ii) a statement in reasonable detail of the
facts on which the claim is based;
(iii) a summary in reasonable detail of the
information and evidence intended to be
offered in support of the claim upon the
hearing of the appeal; and
(iv) such other representations as the
appellant deems relevant to the claim.
(c) has provided, by subsection (3), that
where an appeal is based on a claim that the
appellant is a "refugee" or a Canadian citizen,
a quorum of the Board must, on receipt of the
notice of appeal "forthwith consider the dec
laration" and
(i) if "on the basis of such consideration"
the Board is of opinion that there are
reasonable grounds to believe "that the
claim could, upon the hearing of the appeal,
be established", it must allow the appeal to
proceed, and
(ii) in any other case, it must refuse to
allow the appeal to proceed and must direct
that the order of deportation be executed.
3. Deportation orders are made under the Immi
gration Act by officers known as Special Inqui
ry Officers and, by the Immigration Appeal
Board Rules, an appeal is instituted by serving a
notice of appeal upon the Special Inquiry Offi
cer (section 4(1)) who is required (section 4(4))
inter alia to file forthwith with the Registrar of
the Board copies of the notice of appeal and of
the "record", which, by definition, includes the
deportation order and a record of everything
that took place at the inquiry before the Special
Inquiry Officer leading up to the making of the
deportation order.
4. On November 2, 1973, an Originating Notice
under section 28, in which Marc Michel Cylien
was described as respondent, was filed in this
Court by the Deputy Attorney General of
Canada. By this notice, application is made to
the Court to set aside "the decision and order of
the Immigration Appeal Board dated respective
ly the 16th and 24th of October, 1973 ..."
5. On November 7, 1973, an application was
made under Rule 1403, which provides for an
order of directions as to inter alia "the material
that will constitute the case for decision of the
section 28 application". The respondent
appeared on such application with a friend but
had no legal representation and was, under
standably, not qualified to make any submis
sions concerning the order of directions. Coun
sel for the Attorney General submitted a
description of the material on which he was
prepared to base his section 28 application and
an order was, accordingly, made providing inter
alia that the case for decision of the section 28
application would consist of the following:
(a) The deportation order against Marc
Michel Cylien dated August 30, 1973;
(b) Notice of appeal;
(c) Statement under section 11(2);
(d) Order of the Immigration Appeal Board,
dated September 10, 1973;
(e) Notice of a hearing of the Immigration
Appeal Board, dated September 11, 1973;
(f) Decision (reasons) of the Immigration
Appeal Board, dated October 16, 1973;
(g) Order of the Immigration Appeal Board,
dated October 16, 1973 and signed on Octo-
ber 24, 1973;
(h) The Convention referred to in the Immi
gration Appeal Board Act and related
documents.
6. Drawing inferences from the documents in
the case and accepting, without deciding, that
the "reasons" of the Immigration Appeal Board
dated October 16, 1973 establish such facts as
are stated therein, the following sequence of
events led up to this section 28 application:
(a) On August 30, 1973, a deportation order
was made against the respondent.
(b) On the same day, the respondent signed a
notice of appeal.
(c) On September 5, 1973, the respondent
made a declaration explaining why he was
claiming status as a "refugee".
(d) On September 10, 1973, certified copies
of the deportation order, the notice of appeal
and the "declaration" were filed with the
Immigration Appeal Board.
(e) On September 10, 1973, a panel of three
members of the Board made an order directed
to the Minister of Manpower and Immigration
reciting that the Board had commenced a
consideration of the respondent's "declara-
tion" and ordering that the "record" of the
inquiry leading up to the deportation order be
transmitted to the Board under Regulation
4(4)(a).
(f) On September 11, 1973, the Board sent a
notice to the Minister of Manpower and
Immigration giving notice that the Board
would, on September 18, 1973, consider the
respondent's "declaration".
(g) On September 18, 1973, counsel for the
Minister appeared before the Board and made
a "suggestion". He submitted to the Board, in
effect, that section 11(3) required the Board
to decide whether the appeal is to proceed or
not upon a consideration of the respondent's
"declaration" and "upon that alone",; and he
suggested that, if the Board considered that
the "transcript" and a hearing were necessary
"or proper" for the due exercise of its juris
diction under section 11(3), it should refer to
the Federal Court of Appeal the question of
law as to whether section 11(3) authorizes the
Board, when forming an opinion pursuant to
that provision, to consider
(a) the transcript of the inquiry, and
(b) whatever further evidence or represen
tations might emerge from a hearing.
The hearing was, thereupon, adjourned sine
die.
(h) On October 16, 1973, the Board, by a
majority, gave reasons for its "decision"
rejecting the suggestion made on behalf of the
Minister. By such reasons, it was stated that
the Board's order of September 10, 1973, was
confirmed subject to an extension of time for
production of the record of the inquiry lead
ing up to the deportation order.
The "reasons" of the Immigration Appeal
Board reveal a sharp difference of opinion as to
the duty imposed on the Immigration Appeal
Board by section 11(3) of the Immigration
Appeal Board Act as amended in 1973. On the
view put before the Board on behalf of the
Minister, as I understand it, in the case of an
appellant claiming to be a "refugee" or a
Canadian citizen, there is to be a screening
process, forthwith after the filing of the Notice
of Appeal, based only on a consideration by the
Board of a "declaration" under oath in which
the appellant is required to set out
(a) the nature of the claim;
(b) a statement in reasonable detail of the facts on which
the claim is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered in support of the claim
upon the hearing of the appeal; and
(d) such other representations as the appellant deems
relevant to the claim.
On the Minister's view, if, after a consideration
of that "declaration", the Board is of opinion
that "there are reasonable grounds to believe
that the claim could, upon the hearing of the
appeal, be established", it would allow the
appeal to proceed and if, after considering that
"declaration", the Board is of opinion that there
are no "reasonable grounds to believe that the
claim could, upon the hearing of the appeal, be
established", it would refuse to allow the appeal
to proceed. The Board's view, on the other
hand, is that the screening process required by
section 11(3) is not of such a restricted charac
ter and that, before deciding whether or not to
allow an appeal to proceed, it should, or at least
may, take into consideration, in addition to the
section 11(3) declaration, what came out on the
inquiry before the Special Inquiry Officer and
what might be brought out before it on a hearing
specially held for the section 11(3) determina
tion. It can readily be seen that there is a
substantial difference in the nature and duration
of the process contemplated by section 11(3)
depending upon which of these views is correct
and that the determination of the correct inter
pretation of that provision is of importance in
relation to the administration of the system of
appeals from deportation orders.
I have no doubt that the question so raised
can be settled at this stage of this particular
matter by proceedings under the Federal Court
Act. There is, however, an important question
of law as to whether the remedy is under sec
tion 18 or section 28. That question, which is
raised for decision for the first time by this
application, is important because the efficient
administration of the Federal Court Act depends
upon its correct determination.
The relevant provisions of the Federal Court
Act read as follows:
2. In this Act
(g) "federal board, commission or other tribunal" means
any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by
or under an Act of the Parliament of Canada, other than
any such body constituted or established by or under a
law of a province or any such person or persons appoint
ed under or in accordance with a law of a province or
under section 96 of The British North America Act, 1867;
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohi
bition, writ of mandamus or writ of quo warranto, or
grant declaratory relief, against any federal board, com
mission or other tribunal; and
(b) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
(3) Where the Court of Appeal has jurisdiction under this
section to hear and determine an application to review and
set aside a decision or order, the Trial Division has no
jurisdiction to entertain any proceeding in respect of that
decision or order.
The question that has to be decided at this
time is whether the subject matter of this sec
tion 28 application is a "decision" that can be
set aside under section 28 of the Federal Court
Act.
In National Indian Brotherhood v. Juneau
[1971] F.C. 66 at pages 77 et seq. I discussed,
without deciding, some of the problems that
may arise in determining the ambit of the words
"decision or order" in section 28(1). The por
tion of the reasons in the case to which I refer
reads, in part, as follows:
Probably the most important question that has to be
decided concerning the application of s. 28(1) is the question
as to the meaning of the words "decision or order". Clearly,
those words apply to the decision or order that emanates
from a tribunal in response to an application that has been
made to it for an exercise of its powers after it has taken
such steps as it decides to take for the purpose of reaching a
conclusion as to what it ought to do in response to the
application. I should have thought, however, that there is
some doubt as to whether those words—i.e., decision or
order—apply to the myriad of decisions or orders that the
tribunal must make in the course of the decision-making
process. I have in mind decisions such as
(a) decisions as to dates of hearings,
(b) decisions on requests for adjournments,
(c) decisions concerning the order in which parties will be
heard,
(d) decisions concerning admissibility of evidence,
(e) decisions on objections to questions to witnesses, and
(fl decisions on whether it will permit written or oral
arguments.
Any of such decisions may well be a part of the picture in an
attack made on the ultimate decision of the tribunal on the
ground that there was not a fair hearing. If, however, an
interested party has a right to come to this Court under s. 28
on the occasion of every such decision, it would seem that
an instrument for delay and frustration has been put in the
hands of parties who are reluctant to have a tribunal exer
cise its jurisdiction, which is quite inconsistent with the
spirit of s. 28(5).
I also have doubts as to whether a refusal by a tribunal to
entertain an application or its decision to embark on an
inquiry is a decision that falls within s. 28(1). It may well be
that, in respect of such matters, the dividing line falls
between decisions of a tribunal before it embarks, and
completes, its processing of a matter, where a party must
proceed by one of the old Crown writ proceedings and build
a case upon which the Court may decide whether he is
entitled to relief, and decisions based on a case which has
been made before the tribunal, where the Court of Appeal
may base its decision on what was or was not done before
the tribunal.
I do not pretend to have formulated any view as to what
the words "decision or order" mean in the context of s.
28(1), but it does seem to me that what is meant is the
ultimate decision or order taken or made by the tribunal
under its statute and not the myriad of incidental orders or
decisions that must be made in the process of getting to the
ultimate disposition of a matter.
I do not propose, at this time, to endeavour to
reach a conclusion on any aspect of the problem
that I referred to at that time except to the
extent that it is necessary in order to reach a
conclusion as to whether what this section 28
application seeks to have set aside constitutes a
"decision" within the meaning of that word in
section 28(1).
As I understand the submissions on behalf of
the Attorney General, there is, expressly or
impliedly, in the reasons delivered by the
majority of the Board on October 16, 1973, a
"decision" by which the Board rejected the
objection to its jurisdiction, confirmed its previ
ous decision concerning production of the
"record" and decided to proceed with a hearing
before performing its section 11(3) duty. This is
the decision that counsel is asking this Court to
set aside under section 28.'
Assuming the correctness of the Minister's
view as to the Board's duty under section 11(3),
in my view what the Board did, by the reasons
delivered on October 16, properly regarded,
constituted either
(a) a refusal to perform its duty under section
11(3), which was to consider the respondent's
"declaration" forthwith after its receipt and
to make a decision, based only on that consid
eration, as to whether the appeal should be
allowed to proceed or not, or
(b) an assertion of a jurisdiction, which it
does not have, to take into account the evi
dence and representations heard by the Spe
cial Inquiry Officer and further evidence and
representations that it will itself receive
before performing its duty under section
11(3),
or it is both such a refusal to perform its duty
and such a wrongful assertion of jurisdiction;
and it is clearly a case where mandamus or
prohibition or both would lie to determine the
exact nature of the Board's duty in the circum
stances unless such remedy is taken away by
section 28(3).
That being so, the question to be decided on
this application, in my view, is whether such a
refusal to perform a duty or such an assertion
of jurisdiction can, in the circumstances of this
case, be regarded as a "decision" within the
meaning of that word in section 28.
In considering whether what has been put
forward here as a decision is a "decision"-
within the meaning of that word in section
28(1), it is to be remembered that the Immigra
tion Appeal Board is a federal board, commis
sion or other tribunal because it is a body
having, exercising or purporting to exercise
"jurisdiction or powers" conferred by an Act of
the Parliament of Canada (see section 2(g) of
the Federal Court Act). A decision that may be
set aside under section 28(1), must, therefore,
be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred
by an Act of Parliament. A decision of some
thing that the statute expressly gives such a
tribunal "jurisdiction or powers" to decide is
clearly such a "decision". A decision in the
purported exercise of the specific "jurisdiction
or powers" conferred by the statute is equally
clearly within the ambit of section 28(1). Such a
decision has the legal effect of settling the
matter or it purports to have such legal effect.
Once the tribunal has exercised its "jurisdiction
or powers" in a particular case by a "decision"
the matter is decided even against the tribunal
itself?
What we are concerned with here is some
thing different. The Board has "jurisdiction or
powers" under section 11(3) to decide at a
preliminary stage whether the respondent's
appeal is to be allowed to proceed or not. It has
not, however, made that decision as yet. The
problem that has arisen, and in respect of which
the Board has taken position , is whether sec
tion 11 , properly interprete , requires the Board
to make its section 11(3) decision after consid
ering the section 11(2) declaration, and nothing
else, or whether the statute requires or permits
the Board to consider other material before it
makes that decision. This is a question of law
that the Board has no "jurisdiction or powers"
to decide. It must, of course, form an opinion on
that question but that opinion has no statutory
effect.'
There is a clear difference between a "deci-
sion" by the Board of something that it has
"jurisdiction or powers" to decide and a deci
sion by it as to the view as to the nature of its
own powers upon which it is going to act. Once
the Board decides something that it has "juris-
diction or powers" to decide in a particular
case, that decision has legal effect and the
Board's powers with regard to that case are
spent. When, however, the Board takes a posi
tion with regard to the nature of its powers upon
which it intends to act, that "decision" has no
legal effect. In such a case, nothing has been
decided as a matter of law. The Board itself,
whether differently constituted or not, in the
very case in which the position was taken, can
change its view before it deals with the case
and, in fact, proceed on the basis of the changed
view.
The question that has to be considered here
is, therefore, whether section 28(1) extends not
only to all decisions made by the Immigration
Appeal Board in the exercise or purported exer
cise of "jurisdiction or powers" to make deci
sions that have some legal effect or conse
quences but extends also to all conclusions
reached by the Board during the various prelim
inary steps taken in the process leading up to
the actual exercise of "jurisdiction or powers"
to make decisions.
I am conscious that many aspects of the prob
lem as to the ambit of the word "decision" in
section 28 not presently in mind may arise in
the future and that, when they do, they may
well bring to light considerations that have not
been thought of as yet. I desire, therefore, as
already indicated, to limit any expression of
opinion in this case to what is necessary for the
disposition of this section 28 application.
My view in this case is that the Board's
conclusion as to the nature of its statutory duty
under section 11(3) is not a decision made by it
in the exercise of its "jurisdiction or powers" to
make decisions and is not, therefore, a "deci-
sion" that this Court has jurisdiction to set aside
under section 28(1) of the Federal Court Act.
I am, therefore, of opinion that the section 28
application should be dismissed.
,APPENDIX
I. In coming to the conclusion that I have
reached in this matter, I have not overlooked
the express reference in section 28(1)(a) to
excess of jurisdiction and refusal of jurisdiction.
When paragraph (a) is considered in its context,
in my view, it is not only not inconsistent with
that conclusion but it supports it. The relevant
portion of section 28(1) confers a jurisdiction to
determine an application to set aside a "decision
or order" upon the "ground" that the tribunal
by which it was made
(i) "failed to observe a principle of natural
justice",
(ii) "acted beyond ... its jurisdiction", or
(iii) "refused to exercise its jurisdiction".
This does not confer an independent jurisdiction
to decide that a tribunal has failed to observe a
principle of natural justice, has exceeded its
jurisdiction or has refused to exercise its juris
diction. Rather it establishes "grounds" for set
ting aside a "decision or order". Just as a "deci-
sion or order" may be set aside because, in
reaching or making it, there was a failure by the
tribunal to observe . a principle of natural justice,
so a "decision or order" may be set aside
because it was a purported exercise of a juris
diction that the tribunal did not have or because,
in the course of reaching the decision or making
the order, the tribunal refused to exercise some
part of its jurisdiction. An example of a decision
or order that was set aside because, in reaching
it, the tribunal refused to exercise its jurisdic
tion is to be found in Toronto Newspaper Guild
v. Globe Printing Company [1953] 2 S.C.R. 18
where Kellock J. giving judgment on behalf of
himself and Estey and Locke JJ., in the course
of holding that an order of a board should be
quashed because the board had refused to
inquire into one of the facts that was essential
to its decision, said, at page 35, "This was the
very obligation placed upon the Board by the
statute. By refusing to enter upon it, the board
in fact declined jurisdiction."
II. It is not irrelevant, in considering the prob
lem raised by this section 28 application to note
that, in cases to which section 28 does not
apply, certiorari does not lie where there has
been a refusal by a Board to find that it has no
jurisdiction until there has been a decision made
by the Board in the purported exercise of the
jurisdiction that it does not have. In Bell v.
Ontario Human Rights Commission [1971]
S.C.R. 756, there had been such a refusal (see
per Martland J. at page 764) and an application
was made for prohibition. The Ontario Court of
Appeal held that the application for prohibition
was premature but was overruled by the
Supreme Court of Canada. With reference to
the relative roles of prohibition and certiorari,
Martland J. (delivering the judgment of the
majority in the Supreme Court of Canada)
referred at page 772 to R. v. Tottenham and
District Rent Tribunal, Ex p. Northfield (High-
gate) Ltd. [1957] 1 Q.B. 103, where Lord God-
dard said at page 107:
But Mr. Winn asked us to express some opinion whether ii
was right for the applicants to apply to this court foi
prohibition or whether they ought not to have gone to the
tribunal and taken the point there. Of course, they couk
have taken the point before the tribunal, and if the tribunal
had decided in their favour, well and good. If the tribunal
had decided contrary to their contention, then they would
have had to come here and, instead of asking for prohibi
tion, asked for certiorari; but I think it would be impossible
and not at all desirable to lay down any definite rule as tc
when a person is to go to the tribunal or come here foi
prohibition where the objection is that the tribunal has nc
jurisdiction. Where one gets a perfectly simple, short and
neat question of law as we have in the present case, it seems
to me that it is quite convenient, and certainly within the
power of the applicants, to come here for prohibition. That
does not mean that if the tribunal, during the time leave has
been given to move for prohibition and the hearing of the
motion, like to continue the hearing they cannot do so; of
course, if prohibition goes it will stop them from giving any
decision, and if prohibition does not go they can give their
decision. For myself, I would say that where there is a clear
question of law not depending upon particular facts—
because there is no fact in dispute in this case—there is no
reason why the applicants should not, come direct to this
court for prohibition rather than wait to see if the decision
goes against them, in which case they would have to move
for certiorari.
What Lord Goddard is referring to in that pas
sage when he uses the word "decision" is a
decision by the tribunal in the purported exer
cise of its "jurisdiction or powers" and not a
decision as to whether it has jurisdiction in the
particular matter. This is clear from his state
ment that "if the prohibition does not go, they
can give their decision".
* * *
THURLOW and PRATTE JJ. concurred.
1 During the course of argument, counsel for the Attorney
General indicated that he was not seeking to have the
"order" of October 24 set aside except as an integral part of
such "decision".
2 Unless of course it has express or implied powers to
undo what it has done, which is an additional jurisdiction.
3 The statute does not, as it might have done, confer on
the Board a jurisdiction to determine its own jurisdiction.
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.