A-492-77
Marleny de Fatima Cardona Alvarez (Applicant)
v.
Minister of Manpower and Immigration (Re-
spondent)
Court of Appeal, Heald and Le Dain JJ. and
MacKay D.J.—Toronto, May 18; Ottawa, June 8,
1978.
Immigration — Deportation — Written request for reasons
of Immigration Appeal Board denied because request not
made within 30 days of disposition of appeal as prescribed by
Rule 19 of Immigration Appeal Board Rules — Whether or
not Rule 19 is ultra vires the Immigration Appeal Board Act
— Whether or not refusal to give reasons invalidates the
decision — Whether or not Board failed to exercise its equita
ble jurisdiction under s. 15 of the Act — Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, ss. 7(3), 8(1), 15(1) — Immi
gration Appeal Board Rules, SOR/67-559, Rule 19.
This is an appeal from a decision of the Immigration Appeal
Board dismissing an appeal from a deportation order made
against appellant. Appellant requested the Board by letter to
give reasons for its decision, but the Board refused to do so on
the ground that the request was not made within 30 days of the
date of the disposition of the appeal, as required by section 19
of the Immigration Appeal Board Rules. The grounds for
appeal are that section 19 of the Rules is ultra vires the
Immigration Appeal Board Act and the refusal to give reasons
for the decision invalidates the decision, and the Board failed to
exercise its equitable jurisdiction under section 15 of the Act.
Held, the appeal is dismissed. Rule 19 is inconsistent with
section 7(3) in so far as it limits the time within which a
request for reasons may be made and as such is ultra vires. It
abridges the right which is conferred in unqualified terms by
section 7(3). Had Parliament intended that there be a time
limit within which a request for reasons may be made it would
presumably have expressly authorized the Board to fix such a
limit. The duty to give reasons is not a condition precedent to
the exercise of the power of decision or a part of the decision. It
is a duty that arises upon request after the disposition of the
appeal. Failure to give reasons in such circumstances cannot
affect the jurisdiction of the Board to make the decision or
otherwise be an error of law in making the decision. The
remedy in such case must be by way of mandamus under
section 18 of the Federal Court Act. No inference that the
Board did not consider equitable relief may be drawn from a
refusal to give reasons upon the ground that the request was not
made within the time fixed by the Rules. There is no basis for
concluding here that failure to give reasons was because the
Board had not considered the equitable relief provided by
section 15.
APPEAL.
COUNSEL:
Gale Rubenstein for applicant.
Brian Segal for respondent.
SOLICITORS:
Atlin, Goldenberg, Cohen & Armel, Toronto,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from a decision of
the Immigration Appeal Board on March 3, 1977
dismissing an appeal from a deportation order
made against the appellant on April 30, 1976. The
appellant requested the Board by letter dated
April 13, 1977 to give reasons for its decision, but
the Board refused to do so on the ground that the
request was not made within thirty days of the
date of the disposition of the appeal as required by
Rule 19 of the Immigration Appeal Board Rules,
SOR/67-559, which reads as follows:
19. Where either of the parties to an appeal requests the
Board to give reasons for its disposition of the appeal, pursuant
to subsection (3) of section 7 of the Act, such request shall be
made in writing, signed by the party making it or his counsel
and filed with the Registrar within thirty days of the date of
the disposition of the appeal.
The grounds of appeal are the following:
1. Rule 19 of the Rules is ultra vires the Immi
gration Appeal Board Act, R.S.C. 1970, c. I-3,
and the refusal to give reasons for the decision
invalidates the decision; and
2. The Board failed to exercise its equitable
jurisdiction under section 15 of the Act.
The provision of the Act which requires the
Board to give reasons for its decision is section
7(3), which reads as follows:
7. ...
(3) The Board may, and at the request of either of the
parties to the appeal shall, give reasons for its disposition of the
appeal.
Section 8(1) of the Act empowers the Board to
make rules as follows:
8. (1) The Board may, subject to the approval of the Gover
nor in Council, make rules not inconsistent with this Act
governing the activities of the Board and the practice and
procedure in relation to appeals to the Board under this Act.
Rule 19, quoted above, purports to have been
made in the exercise of this authority. It must be
conceded that the Rule is broadly speaking one
"governing the activities of the Board and the
practice and procedure in relation to appeals", but
in my opinion it is one that is inconsistent with
section 7(3) in so far as it limits the time within
which a request for reasons may be made, and as
such is ultra vires. It abridges the right which is
conferred in unqualified terms by section 7(3).
Rule 19 suggests that a request for reasons may be
made only after the disposition of an appeal. This
in itself is clearly inconsistent with section 7(3),
which implies no such limitation. Had Parliament
intended that there be a time limit within which a
request for reasons may be made it would presum
ably have expressly authorized the Board to fix
such a limit as it did in section 19 of the Act with
respect to notice of appeal. It may well be desir
able, from a practical point of view, that there be
such a time limit, but the power to fix one cannot
in my opinion be found in the terms of section
8(1).
The next question is whether a refusal to give
reasons, pursuant to a request for reasons follow
ing the disposition of an appeal, vitiates or invali
dates the decision of the Board. I do not see how it
can do so. The duty to give reasons in such a case
is not a condition precedent to the exercise of the
power of decision or a part of the decision. It is a
duty that arises upon request after the disposition
of the appeal. I cannot see how the failure to give
reasons in such circumstances can affect the juris
diction of the Board to make the decision or
otherwise be an error of law in making the deci
sion. The remedy in such case must be by way of
mandamus under section 18 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10. Where the
duty to give reasons arises before the decision is
made there is authority to support the view that
the failure to give reasons, or sufficient reasons,
may be a ground for setting the decision aside. But
in the present case the Board did not, at the time it
rendered its decision, have a duty to give reasons.
That duty only arose upon the request for reasons.
The appellant also contended that the Board
failed to exercise its equitable or humanitarian
jurisdiction under section 15(1) of the Immigra
tion Appeal Board Act, and that this may be
inferred not only from the transcript of the hearing
but also from the failure to give reasons. The
appellant was not represented by counsel at the
hearing. She was informed of her right to counsel,
but she expressed the wish to proceed without
counsel. The appellant does not base any argument
on the lack of counsel as such, although she may
suggest that there was a particular duty on the
Board in such circumstances to make sure that
everything that could have a bearing on the ques
tion of equitable relief was elicited in the course of
the appellant's testimony. The words "having
regard to all the circumstances" in section 15(1)
may well imply not only that the Board must
consider all the evidence that is put before it by a
party of his own initiative but must satisfy itself by
its own inquiry that it has ascertained and con
sidered all the pertinent circumstances of a case.
In my opinion the transcript of the hearing does
indicate that the Board made an effort to elicit
testimony as to all such circumstances and that in
fact the case that could be made for equitable
relief was put before it. Counsel for the appellant
in this Court conceded that the essential facts were
before the Board.
At one point in the hearing the Board put the
following question to the appellant:
Now, you've told us why you would like to stay in Canada
and answered the questions; is there anything else particularly
you would like to tell us before Mr. Bhabba tells us the position
of—what the position of the Minister is?
At the conclusion of the hearing counsel for the
Minister said:
I would further respectfully submit that with the circumstances
that have been brought out in this case, grounds do not exist for
the granting of relief and we urge that the Board direct the
deportation of Miss Cardona.
In my opinion both of these statements clearly
refer to the equitable relief provided by section 15
of the Act and preclude any possible inference
from the record that the Board did not consider
such relief. Further, I cannot see how any such
inference may be drawn from a refusal to give
reasons upon the ground that the request was not
made within the time fixed by the Rules. The cases
show that an inference may be drawn from insuffi
cient reasons in certain circumstances that a tri
bunal has misdirected itself as to the law, but that
is quite a different matter. There is no basis for
concluding here that the failure to give reasons
was because the Board had not considered the
equitable relief provided by section 15.
For the foregoing reasons I would dismiss the
appeal.
* * *
HEALD J.: I concur.
* * *
MACKAY D.J.: I concur.
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.