T-7404-82
Edward Fat Law (Plaintiff)
v.
Solicitor General of Canada and Minister of
Employment and Immigration (Defendants)
Trial Division, Mahoney J.-Toronto, January 17;
Ottawa, February 1, 1983.
Immigration - Plaintiff a landed immigrant - Convicted
of extortion and ordered deported - Appeal to Immigration
Appeal Board yielding stays of execution - S. 83 certificate
that non-dismissal of appeal contrary to public interest signed
- Plaintiff claiming declaration: (1) that defendants obliged
to inform of allegations and allow submissions; (2) that s. 83
of Immigration Act, 1976 violates Charter - Reasonableness
of limits must be proven under Charters. 1, unless self-evident
- Board "a court of competent jurisdiction" as per Charter s.
24(1) - Board having exclusive jurisdiction re questions of
law regarding removal order - Issues regarding reconsidera
tion of Prata are legal - S. 21 of Immigration Appeal Board
Act largely identical to s. 83 - Federal Court lacking juris
diction and action dismissed as abuse of process - Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 59(1), 65(1), 72(1),
75(1), 83, 128(1) - Immigration Appeal Board Act, R.S.C.
1970, c. I-3, s. 21 - Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 7, 24(1)
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 52(1) - Criminal Code, R.S.C. 1970, c. C-34, s.
305 - Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
50(1), (2).
Constitutional law - Charter of Rights - Whether s. 83,
Immigration Act, 1976 contrary to s. 7 of Charter - S. 7 to be
read in conjunction with s. 1 which provides rights subject to
reasonable limits - Reasonableness of limits requiring proof
unless self-evident - Immigration Appeal Board court of
competent jurisdiction within Charter s. 24(1) - Board having
exclusive jurisdiction to determine questions of law upon
appeal against removal order .- Federal Court dismissing
action as abuse of process in view of want of jurisdiction -
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.), ss. 1, 7, 24(1) - Immigration Act, 1976, S.C.
1976-77, c. 52, s. 83 - Federal Court Act, R.S.C. 1970 (2nd
Supp.). c. 10, s. 50(1),(2).
Jurisdiction - Immigration Appeal Board seized with
jurisdiction upon appeal against deportation order - Immi-
grant seeking declarations and order of prohibition in Trial
Division — Federal Court without jurisdiction — Bringing
action in court lacking jurisdiction an abuse of process —
Statement of claim struck and action dismissed — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 59(1), 72(1) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 50(1),(2).
Practice — Motion to strike pleadings — Plaintiff a landed
immigrant — Convicted of extortion and ordered deported —
Appeal to Immigration Appeal Board yielding stays of execu
tion — Defendants signing s. 83 certificate that non-dismissal
of appeal contrary to public interest — Plaintiff claiming
declaration: (1) that defendants obliged to inform of allega
tions and allow submissions; (2) that s. 83 of Immigration Act,
1976 violates Charter — Argument that no reasonable cause
of action rejected — Improper to deny plaintiff reconsidera
tion of Prata in light of subsequent jurisprudence and Charter
— S. 21 of Immigration Appeal Board Act largely identical to
s. 83 — Reasonableness of limits must be proven under
Charter s. 1, unless self-evident — Inappropriate to strike if
defence based on s. 1 — Board "a court of competent jurisdic
tion" as per Charter s. 24(1) — Board having exclusive
jurisdiction re questions of law regarding removal order —
Statement of claim struck and action dismissed as abuse of
process — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
59(1), 65(1), 72(1), 75(1), 83, 128(1) — Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, s. 21 — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1,
7, 24(1) — Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 52(1) — Criminal Code, R.S.C.
1970, c. C-34, s. 305 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 50(1),(2).
The plaintiff, a landed immigrant, was convicted of extortion
and ordered deported. He appealed to the Immigration Appeal
Board and obtained successive stays of execution. Pursuant to
section 83 of the Immigration Act, 1976, the defendants signed
a certificate stating that, in their opinion, it would be contrary
to the national interest for the Board not to dismiss the
plaintiffs appeal. This certificate was filed with the Board. The
plaintiff brought an action in the Trial Division, claiming, inter
alia: (1) a declaration that the defendants were obliged to
inform him of the allegations against him, and allow him to
make submissions, prior to signing the section 83 certificate;
and (2) a declaration that section 83 violates the Charter of
Rights. The defendants applied to have the statement of claim
struck out, either as disclosing no reasonable cause of action or
as an abuse of process, or alternatively, to have proceedings
stayed under subsection 50(1) of the Federal Court Act.
Held, the statement of claim should be struck out and the
action dismissed. The reason for this is not an absence of a
reasonable cause of action. By his claim, the plaintiff is seeking
a reconsideration of the decision of the Supreme Court of
Canada in Prata, which examined section 21 of the Immigra
tion Appeal Board Act, a provision largely identical to section
83. He seeks to have that decision reconsidered in light of
subsequent jurisprudence and in light of section 7 of the
Charter. It would be an improper exercise of discretion sum
marily to deny him an opportunity for this reconsideration.
While in reading section 7 one must also have regard to section
1, wherein "reasonable limits" are imposed upon the rights set
out, unless the reasonableness of specific limits is self-evident,
this must be proven. Accordingly, if the defence to the plain
tiff's claim is based upon section 1, the action is, again, not one
in which it is appropriate to strike the statement of claim
summarily. The action should, however, be dismissed on the
ground of abuse of process. Subsection 24(1) of the Charter
authorizes a person whose rights have been infringed to apply
to "a court of competent jurisdiction" for a remedy. Within the
confines fixed upon its jurisdiction by statute, the Board is such
a court, for the purposes of subsection 24(1). Furthermore, by
virtue of subsection 59(1) of the Immigration Act, 1976, the
Board has sole and exclusive jurisdiction to deal with all
questions of law relating to the removal order appealed from.
The issue raised in this action—namely, whether Prata remains
good law—is such a question of law. Consequently, the Board
alone is empowered to adjudicate upon that issue at first
instance, and this Court is without jurisdiction. It follows that
this action is an abuse of the Court's process, for it is axiomatic
that bringing an action in a court which lacks jurisdiction to
deal with the issues involved constitutes an abuse of process.
Even if the action were not to be dismissed for this reason, it
would nonetheless be stayed, in the interests of justice, since the
Board is already seized of the matter and is competent to
decide the issues raised. In the circumstances, the plaintiff will
have substantially the same right of appeal, whether the deter
mination at first instance is made by the Board or by this
Court.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Prata v. Minister of Manpower and Immigration, [1976]
1 S.C.R. 376.
COUNSEL:
P. D. Copeland for plaintiff.
B. R. Evernden for defendants.
SOLICITORS:
Copeland, Liss, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is a motion on behalf of the
defendants to strike out the statement of claim as
disclosing no reasonable cause of action as against
the defendants or as otherwise an abuse of process
or, alternatively, to stay proceedings pursuant to
paragraphs 50(1)(a) and (b) of the Federal Court
Act' on the ground that the Immigration Appeal
Board is currently seized with jurisdiction to deter
mine the issue.
The essential facts pleaded in the statement of
claim are that the plaintiff, a native of Hong
Kong, was: landed as an immigrant in Canada
July 31, 1974; convicted of extortion, contrary to
section 305 of the Criminal Code [R.S.C. 1970, c.
C-34], an offence carrying a maximum penalty of
14 years imprisonment, on May 15, 1978; and, on
November 28, 1978, ordered deported. He ap
pealed to the Immigration Appeal Board, which
stayed execution of the deportation order. Succes
sive stays were ordered. The statement of claim
continues:
8. Pursuant to section 83 of the Immigration Act, 1976, the
Minister of Employment and Immigration on the 20th day of
July, 1982 and the Solicitor General of Canada on the 3rd day
of August 1982 signed a Certificate certifying that in their
opinion based on criminal intelligence reports considered by
them that it would be contrary to the national interest for the
Immigration Appeal Board in the exercise of its authority
under section 75(1) of the Act or subsection 76(3) of the Act
with respect to an appeal made by the Plaintiff pursuant to
72(1)(b) to do other than dismiss the appeal.
9. By letter dated the 10th day of August, 1982 the said
Certificate was filed with the Immigration Appeal Board.
10. The Plaintiff was not informed that the Defendants were
considering the Certificate under section 83 of the Immigration
Act, 1976 and the Plaintiff was not given an opportunity of
making any submissions in regard to any of the matters con
sidered by the Defendants concerning that Certificate.
12. The Plaintiff therefor claims:
(a) A declaration that the Defendants are obliged to inform
the Plaintiff of the general allegations against him and allow
1 R.S.C. 1970 (2nd Supp.), c. 10.
50. (1) The Court may, in its discretion, stay proceedings
in any cause or matter,
(a) on the ground that the claim is being proceeded with in
another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
him to make submissions prior to completing a section 83
Certificate against him.
(b) A Declaration that the provisions of section 83 of the
Immigration Act, 1976 are contrary to the provisions of the
Charter of Rights and Freedoms.
(c) A declaration that in the circumstances of his appeal at
the stage that it has reached the use of the section 83
Certificate is not available to the Minister of Employment
and Immigration or his representatives.
(d) An order of Prohibition against the representatives of the
Minister of Employment and Immigration prohibiting them
from seeking to file or in any way rely upon the section 83
Certificate at any resumption of the Plaintiff's Appeal before
the Immigration Appeal Board.
(e) The costs of this action.
Paragraph 11 pleads facts concerning the citi
zenship of the plaintiffs wife and children and the
status in Canada of his parents and other relatives,
which the defendants seek to have struck out as
immaterial in any event. These facts were, presum
ably, pleaded to demonstrate that the plaintiff was
entitled to recourse to paragraph 72(1)(b) of the
Immigration Act, 1976, 2 and, hence, the stays
open to the Immigration Appeal Board in the
absence of the section 83 certificate. The defend
ant sought, in the alternative, to strike it out as
being immaterial. I agree that it is immaterial to
this action and should be struck out in any event.
The argument was directed entirely to the relief
sought under paragraphs 12(a) and (b). No sepa
rate attack on paragraphs 12(c) and (d), aside
from that on the statement of claim as a whole,
was advanced. In seeking the relief he does under
paragraph 12(a), the plaintiff is asking for recon
sideration of the decision in Prata v. Minister of
Manpower and Immigration' in the light of subse
quent jurisprudence; and, under paragraph 12(b),
he is asking for its reconsideration in light of the
advent 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.).
2 S.C. 1976-77, c. 52.
3 [1976] 1 S.C.R. 376.
In response to a direction from the Court, plain
tiff's counsel stated that the particular provisions
relied on for the relief sought under paragraph
12(b) are section 7 of the Charter and subsection
52(1) of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.).
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
Section 7 must, of course, be read in conjunction
with section 1 of the Charter, which provides that
the rights prescribed are "subject only to such
reasonable limits ... as can be demonstrably justi
fied in a free and democratic society"; however,
clearly, if the defence turns on that, it is not an
appropriate occasion to strike out the statement of
claim summarily. The reasonableness of limits,
unless self-evident, requires proof.
Section 83 of the Immigration Act, 1976,
provides:
83. (1) Notwithstanding anything in this Act, the Board shall
dismiss any appeal made or deemed by subsection 75(3) to have
been made pursuant to paragraph 72(1)(b) or 72(2)(d) or
pursuant to section 79 if a certificate signed by the Minister
and the Solicitor General is filed with the Board stating that, in
their opinion, based on security or criminal intelligence reports
received and considered by them, it would be contrary to the
national interest for the Board to do otherwise.
(2) A certificate purporting to be signed by the Minister and
the Solicitor General pursuant to subsection (1) is proof of the
matters stated therein and shall be received by the Board
without proof of the signatures or official character of the
persons appearing to have signed it unless called into question
by the Minister or the Solicitor General.
It is identical in its essentials and effect to section
21 of the Immigration Appeal Board Act, 4 which
was considered by the Supreme Court of Canada
in Prata v. Minister of Manpower and Immigra
tion. It would be a wrong exercise of discretion
summarily to deny the plaintiff the opportunity to
° R.S.C. 1970, c. I-3 [rep. by the Immigration Act, 1976,
subs. 128(1)] .
have the courts reconsider Prata in light of the
Charter. It may, as well, otherwise be ripe for
reconsideration in light of the rapid evolution of
the law. The action should not be dismissed on the
ground that the statement of claim discloses no
reasonable cause of action.
As to whether it should be dismissed as an abuse
of process, it is, I take it, axiomatic that bringing
an action in a court which has no jurisdiction to
deal with the issues raised is an abuse of that
court's process. The relevant provisions of the law
are subsections 59(1), 65(1), 72(1) and 75(1) of
the Immigration Act, 1976, and subsection 24(1)
of the Charter, the material provisions of which
follow:
59. (1) There is hereby established a board, to be called the
Immigration Appeal Board, that shall, in respect of appeals
made pursuant to sections 72 ... have sole and exclusive
jurisdiction to hear and determine all questions of law and fact,
including questions of jurisdiction, that may arise in relation to
the making of a removal order ....
65. (1) The Board is a court of record and shall have an
official seal, which shall be judicially noticed.
72. (1) Where a removal order is made against a permanent
resident ... that person may appeal to the Board on either or
both of the following grounds, namely,
(b) on the ground that, having regard to all the circum
stances of the case, the person should not be removed from
Canada.
75. (1) The Board may dispose of an appeal made pursuant
to section 72
(a) by allowing it;
(b) by dismissing it; or
(c) in the case of an appeal pursuant to paragraph 72(1)(b)
or 72(2)(d), by directing that execution of the removal order
be stayed.
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
The Immigration Appeal Board is, within the
limits of its jurisdiction as defined by statute, a
court of competent jurisdiction within the contem
plation of subsection 24(1) of the Charter. The
Board has, by subsection 59(1) of the Immigration
Act, 1976, sole and exclusive jurisdiction to hear
and determine, inter alia, all questions of law that
may arise in relation to the removal order against
which the plaintiff has appealed, under subsection
72(1), to the Board. The issues raised in this
action—namely, whether the law as stated in
Prata v. Minister of Manpower and Immigration
remains the law in light of subsequent jurispru
dence and the Charter—are such questions of law.
The Board has sole and exclusive jurisdiction to
determine them; this Court is without such
jurisdiction.
If I had not concluded that this action should be
dismissed for want of this Court's jurisdiction to
entertain it, I should have stayed the action. It
would have been in the interest of justice to do so.
The Board is already seized of the matter and
competent to decide the issues raised in the state
ment of claim. The plaintiffs right of access to
appellate tribunals will be substantially identical,
in the circumstances, whether the initial determi
nation is made by the Board or this Court.
JUDGMENT
The statement of claim is struck out and the
action dismissed with costs.
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.