A-1147-84
Tirath Kaur Kosley (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Urie and Stone JJ.—
Vancouver, November 28, 1984; Ottawa, January
18, 1985.
Immigration — Application to set aside deportation order
for lack of jurisdiction pursuant to s. 35(2) of Regulations —
Adjourned inquiry not resumed at specified time and date
although counsel and Case Presenting Officer present —
Resumed by different Adjudicator two days later — Applicant
in detention — Application dismissed — Only reasonable
inference Adjudicator adjourned for good reason — No preju
dice to applicant from failure to transcribe proceedings or
from adjournment — Applicant not meeting onus to establish
prima facie want of jurisdiction — Mavour v. Minister of
Employment and Immigration, /1984] 2 F.C. 122 (C.A.) fol
lowed — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
27 ( 2 )(b),(c),(e),(g), 29, 45(1), 70(2), 71(1), 104 ( 2 ),( 3 ),( 6 ) —
Immigration Regulations, 1978, SOR/78-172, ss. 32(1), 34(2),
35 — Interpretation Act, R.S.C. 1970, c. I-23, s. 28 — Federal
Court Act, R.S.C. /970 (2nd Supp.), c. /0, s. 28 — Criminal
Code, R.S.C. 1970, c. C-34, s. 738.
This is an application to set aside an Adjudicator's decision
ordering the applicant's deportation. On November 18, 1982,
an inquiry was convened to determine whether the applicant,
who was then in detention, should be deported. The inquiry was
adjourned to one o'clock, November 22. Over the week-end the
applicant was arrested under a section of the Immigration Act,
1976 and was in custody at a different location. She did not
appear at the time and place fixed for the resumption of the
inquiry, although her counsel and the Case Presenting Officer
did. There is no record of what transpired on November 22, but
on November 24 the inquiry was resumed, despite the appli
cant's allegations of lack of jurisdiction. The applicant alleges
that by failing to resume the inquiry at the time to which it had
been adjourned, the Adjudicator lost jurisdiction by virtue of
section 35 of the Regulations. Consequently, the deportation
order was void. Subsection 35(2) provides that where an inqui
ry is adjourned, it "shall be resumed at such time and place as
is directed by the adjudicator" presiding at the inquiry.
Held (Heald J. dissenting), the application should be
dismissed.
Per Urie J.: The only reasonable inference is that an
Adjudicator at the time and place designated for the resump
tion of the inquiry adjourned it for good reason to November
24. No prejudice accrued to the applicant from either the
failure to transcribe the November 22 proceedings, or the
adjournment to November 24. There was, therefore, no loss of
jurisdiction because there was no failure to comply with subsec-
tion 35(2) of the Regulations. Also the onus was on the
applicant to establish at least prima facie the allegation of want
of jurisdiction. The applicant did not seek to vary the record by
adducing affidavit evidence to satisfy the Court that there had
been no resumption of the adjourned hearing.
The decision of this Court in Mavour v. Minister of Employ
ment and Immigration, [1984] 2 F.C. 122 (C.A.) should be
followed. There the principle from R. v. Krannenburg, [1980] I
S.C.R. 1053, that an inferior court may lose jurisdiction by
reason of a procedural irregularity, such as when the date to
which a case is adjourned for trial comes and goes without any
hearing or appearance, was held to be limited to criminal
proceedings. It would be inappropriate to apply this principle to
administrative tribunals, which must have some reasonable
flexibility in their power to adjourn and resume hearings. The
fact that detention may be involved did not make it appropriate
to apply the Krannenburg principle to a failure to resume an
inquiry on the date to which it was adjourned. Subsection
104(6) of the Immigration Act, /976 provides for a regular
review of a continued detention.
This approach is consistent with that of Laskin J. in Minister
of Manpower and Immigration v. Brooks, [1974] S.C.R. 850.
Per Heald J. (dissenting): There is no evidence upon which to
base an inference that anyone in authority adjourned the
applicant's inquiry. Accordingly, subsection 35(2) of the Regu
lations was not complied with. It is necessary to consider the
effect of the non-compliance on the validity of the deportation
order.
The factual situation in Mavour distinguishes it from this
case. There the decision attacked was a decision on detention,
not a decision on the total validity of the inquiry proceedings.
The conclusion in Mavour was made in light of the requirement
in subsection 104(6) of the Act for seven-day reviews of the
reasons for detention. Therefore the serious consequences
attendant upon non-compliance in a criminal case would not
flow from non-compliance under the Immigration Act, /976
where detention is involved because of the additional protection
provided by subsection 104(6). In Mavour the Court was not
required to consider the validity of the inquiry proceedings
leading to deportation. It was required to consider the effect of
non-compliance with an immigration regulation in a collateral
proceeding.
Subsections 35(l) and (3) employ the directory word "may"
whereas subsections 35(2) and (4) use the mandatory "shall".
Section 28 of the Interpretation Act provides that, in every
enactment "may" is to be construed as permissive whereas
"shall" is to be construed as imperative. The problem here is
that the legislation uses the language of obligation, but it does
not state the consequences of non-compliance. In light of
section 28 of the Interpretation Act, and having regard to the
use of "shall" in portions of section 35 and the use of "may" in
other portions, the intention was to impose an obligation on the
adjudicator to comply with the requirements of subsection
35(2).
The final issue is to determine the consequences of a failure
to comply with that provision. The test is stated in Howard v.
Bodington (1877), 2 P.D. 203. In each case one must look to
the subject-matter; consider the importance of the provision
that has been disregarded, and the relation of that provision to
the general object intended to be secured by the Act; and upon
a review of the case in that aspect decide whether the matter is
what is called imperative or only directory.
It is necessary to consider the importance of subsection 35(2)
of the Regulations in the context of the scheme of the Immi
gration Act, /976. Sections 27 to 39 of the Regulations provide
detailed procedural safeguards to ensure that the rights of the
subject of an inquiry are protected. The purpose of subsection
35(2) is to ensure that the subject and counsel will always be
informed of the status of the inquiry, and aware of all inquiry
dates. This is essential for the protection of the subject's rights.
There is also the possibility of prejudice where the person is in
detention. Section 104 of the Immigration Act, 1976 enables
the respondent to arrest a person with respect to whom an
inquiry is to be held. Subsection 104(3) empowers an adjudica
tor to release that person upon such terms as are considered
appropriate. Since the inquiry was not resumed on November
22, the applicant remained in custody for two more days. This
is a clear case of demonstrable prejudice. Since the Adjudicator
released the applicant on bail on November 24, in all likelihood
the applicant would have been released two days earlier had the
provisions of subsection 35(2) been complied with.
Assuming that the Adjudicator lost jurisdiction on Novem-
ber 22, the decision in R. v. Stedelbauer Chevrolet Oldsmobile
Ltd. (1974), 19 C.C.C. (2d) 359 (Alta. S.C.) is persuasive.
That decision dealt with subsection 738(I) of the Criminal
Code. It was held that if the charges were adjourned to a
definite time and place, and that date passes with nothing done,
the Court loses jurisdiction. Although the Supreme Court of
Canada in Minister of Manpower and Immigration v. Brooks
saw no basis for introducing into administrative proceedings for
deportation the very different considerations which govern
criminal charges, it seems permissible by way of analogy to
consider the approach of the courts to a similar provision in the
Criminal Code.
The case law indicates that the Court will decide the issue on
the particular facts of the case after examining the practical
consequences of non-compliance. In this case, the consequence
of non-compliance was that the applicant was deprived of her
liberty for a further two days. These are serious consequences
entitling the Court to vitiate the inquiry. The section 28
application should be allowed.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Mavour v. Minister of Employment and Immigration,
[1984] 2 F.C. 122 (C.A.).
CONSIDERED:
R. v. Krannenburg, [1980] 1 S.C.R. 1053; Minister of
Manpower and Immigration v. Brooks, [1974] S.C.R.
850; R. v. Stedelbauer Chevrolet Oldsmobile Ltd.
(1974), 19 C.C.C. (2d) 359 (Alta. S.C.); Faiva v. Minis
ter of Employment and Immigration, [ 1983] 2 F.C. 3;
145 D.L.R. (3d) 755 (C.A.); Singh v. Minister of
Employment and Immigration, [1982] 2 F.C. 785
(C.A.); Copeland v. Minister of Employment and Immi
gration, judgment dated January 10, 1984, Federal
Court, Appeal Division, A-I17I-83, not yet reported;
Saraos v. Minister of Employment and Immigration,
[1982] 1 F.C. 304 (C.A.); Emms v. R., [1978] 2 F.C. 174
(C.A.); Schaaf v. Minister of Employment and Immi
gration, [1984] 2 F.C. 334; 52 N.R. 54 (C.A.); Howard
v. Bodington (1877), 2 P.D. 203.
REFERRED TO:
Minister of Employment and Immigration v. Widmont,
[1984] 2 F.C. 274 (C.A.); Weber v. Minister of Man
power and Immigration, [1977] 1 F.C. 750 (C.A.);
Murray v. Minister of Employment and Immigration,
[1979] I F.C. 518; (1978), 23 N.R. 344 (C.A.).
COUNSEL:
Cameron A. Beheshti for applicant.
Leonard Cohen for respondent.
SOLICITORS:
Evans, Goldstein & Company, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting): I have read the reasons
for judgment herein of my brother Urie but with
every deference I am unable to agree with his
reasons or the result which he proposes.
Mr. Justice Urie has correctly summarized what
took place at 9:20 a.m. on Thursday, November
18, 1982, when the applicant's inquiry was initially
convoked. Page 10 of the record establishes that
the inquiry, after several short adjournments, was
adjourned at 2:11 p.m., on November 18, to be
resumed at one o'clock on Monday, November 22,
1982.
The record does not contain any indication that
the inquiry was resumed at one o'clock in the
afternoon of Monday, November 22, or for that
matter at any time on November 22. The next
transcript of an inquiry, in the record, purports to
be the transcript of a resumed inquiry in respect of
the applicant, commencing at 3:30 p.m. on
November 24, 1982.
The Adjudicator on November 18, 1982, was R.
G. Smith. The Adjudicator on November 24,
1982, was Daphne Shaw. There is no direct evi
dence as to what, if anything, transpired on
November 22, 1982, relevant to the applicant's
scheduled inquiry. It is possible however to draw
certain inferences as to the events of November 22
by a perusal of the transcript of the proceedings on
November 24. Mr. Justice Urie has reproduced in
his reasons the relevant portions of that record (see
transcript, pages 12 and 13). From this record I
draw the following inferences:
1. Applicant's counsel (Mr. Goldstein) appears to
have been present both on November 18 and on
November 24. Mr. Fader, the Case Presenting
Officer, was also present on those two occasions.
2. On November 22, at the appointed time, the
applicant's inquiry was not reconvened nor was it
reconvened at any subsequent time on
November 22. Mr. Goldstein appeared at the
proper time and place on November 22 (i.e., 1:00
p.m. at the Canada Immigration Centre, 1550
Alberni Street, Vancouver) but in Mr. Goldstein's
words (transcript, page 12): "I was here. I under
stand Mr. Gordon from the Department was here,
but nothing took place." (Emphasis added.)
Apparently Adjudicator Shaw agreed with Mr.
Goldstein because she said that the resumption
scheduled for November 22 "did not take place"
but was taking place rather on November 24 (see
transcript, page 12).
3. There is nothing in the record from which it can
be inferred that Mr. Gordon was an Adjudicator
under the Immigration Act, 1976 [S.C. 1976-77, c.
52] clothed with jurisdiction to convoke and
adjourn an inquiry under that Act. Furthermore,
there is no evidence of any kind upon which to
base an inference that anyone in authority
adjourned the applicant's inquiry from November
22 to November 24. To the contrary, the state
ments of Mr. Goldstein and Adjudicator Shaw
supra make it quite clear, in my view, that there
was no resumption on November 22.
Based on these facts, I conclude that the provi
sions of subsection 35(2) of the Immigration
Regulations, 1978 [SOR/78-172] requiring the
resumption of an inquiry at the time and place
directed by the presiding Adjudicator were not
complied with in this case.
Because of my conclusion of the facts supra, it is
necessary to consider the effect, if any, of that
non-compliance on the validity of the deportation
order issued by the Adjudicator herein. As pointed
out by my brother Urie, the recent decision of this
Court in the case of Mavour v. Minister of
Employment and Immigration, [ 1984] 2 F.C. 122
(C.A.) requires consideration. The Mavour case
was a section 28 application to review and set aside
an Adjudicator's decision with respect to the appli
cant's release from detention pursuant to subsec
tion 104(3) of the Immigration Act, 1976. The
applicant had been arrested on March 15, 1983,
pursuant to subsection 104(2) of the Act as one
suspected of being a person described in para
graphs 27(2)(6),(e) and (g) of the Immigration
Act, 1976. An inquiry was convoked on March 22.
On that day, the Adjudicator adjourned the inqui
ry until March 30 and ordered continued detention
for the applicant. The inquiry was not resumed on
March 30 because there was no Case Presenting
Officer available. It was resumed on April 6. The
applicant's detention was not reviewed by an
Adjudicator between March 22 and April 6. This
circumstance represented a contravention of the
provisions of subsection 104(6) of the Act which
reads:
104....
(6) Where any person is detained pursuant to this Act for an
examination, inquiry or removal and the examination, inquiry
or removal does not take place within forty-eight hours from
the time when such person is first placed in detention, that
person shall be brought before an adjudicator forthwith and the
reasons for his continued detention shall be reviewed and
thereafter that person shall be brought before an adjudicator at
least once during each seven day period, at which times the
reasons for continued detention shall be reviewed.
In Mavour, counsel for the applicant submitted
that the Adjudicator had lost jurisdiction by the
failure to resume the inquiry on March 30, 1983,
the date to which it had been adjourned. In sup
port of this submission, counsel relied on the prin
ciple stated by Dickson J. (as he then was) in R. v.
Krannenburg, [ 1980] 1 S.C.R. 1053, at page 1055,
as follows: "It has long been recognized in our law
that an inferior court may suffer loss of jurisdic
tion by reason of some procedural irregularity, as
for example, when the date to which an accused is
remanded or to which a case is adjourned for trial
comes and goes without any hearing or appear
ance, 'with nothing done'." In dealing with this
submission, the Federal Court of Appeal speaking
through Le Dain J. (as he then was) said [at pages
129-130] :
This principle, which was first authoritatively affirmed by the
Supreme Court of Canada in Trenholm v. The Attorney-Gen
eral of Ontario, [1940] S.C.R. 301, has been applied in many
cases, but as far as I have been able to ascertain it has always
been applied to courts of criminal jurisdiction and to criminal
proceedings. Counsel for the applicant was unable to refer us to
any case, and I have been unable to find any, in which the
principle has been applied to proceedings before an administra
tive tribunal, whether exercising powers of a judicial or quasi-
judicial nature or not. In my opinion this is not a principle
which it is appropriate to apply to administrative tribunals,
which must have some reasonable flexibility in their power to
adjourn and resume hearings. That flexibility is reflected in
subsection 35(2) of the Immigration Regulations, /978, which
provides: "Where an inquiry is adjourned pursuant to these
Regulations or subsection 29(5) of the Act, it shall be resumed
at such time and place as is directed by the adjudicator
presiding at the inquiry." I do not think the circumstance that
detention may be involved makes it appropriate to apply the
principle affirmed in Krannenburg to a failure to resume an
inquiry on the date to which it was adjourned. Subsection
104(6) of the Act makes provision for the regular review of the
reasons for a continued detention quite apart from the progress
of an inquiry. I am, therefore, of the view that the Adjudicator
did not lose jurisdiction by her failure to resume the inquiry on
March 30, 1983, the date to which it had been adjourned.
At first glance, it certainly appears as though
the above quotation is determinative of the issue
herein. However it must be remembered that the
factual situation in Mavour was quite different in
that the decision being attacked was a decision on
detention, not a decision on the total validity of the
inquiry proceedings. It seems to me that Le Dain
J. concluded as he did fully cognizant of the
requirement in subsection 104(6) of the Act for
regular seven-day reviews of the reasons for deten
tion. What I understand him to be saying in the
passage above quoted is that the serious conse
quences attendant upon non-compliance in a
criminal case would not flow from non-compliance
under the Immigration Act, 1976 where detention
is involved because of the additional protection
provided by subsection 104(6). In Mavour the
Court was not required to consider the validity of
the inquiry proceedings leading to deportation. It
was required, rather, to consider the effect of
non-compliance with an immigration regulation in
a collateral proceeding. In my view of the matter,
this, factual difference distinguishes Mavour.'
Having concluded that this Court's decision in
Mavour supra is not determinative in the circum
stances of the instant case, I return to a consider
ation of the effect of non-compliance with subsec
tion 35(2) of the Immigration Regulations, 1978
on the deportation order herein. Section 35 of the
Immigration Regulations, 1978 reads:
35. (1) The adjudicator presiding at an inquiry may adjourn
the inquiry at any time for the purpose of ensuring a full and
proper inquiry.
(2) Where an inquiry is adjourned pursuant to these Regula
tions or subsection 29(5) of the Act, it shall be resumed at such
time and place as is directed by the adjudicator presiding at the
inquiry.
(3) Where an inquiry has been adjourned pursuant to the
Act or these Regulations, it may be resumed by an adjudicator
other than the adjudicator who presided at the adjourned
inquiry with the consent of the person concerned or where no
substantive evidence has been adduced.
(4) Where substantive evidence has been adduced at an
adjourned inquiry and the person concerned refuses to consent
to the resumption of the inquiry by an adjudicator other than
' Had I concluded that Mavour was indistinguishable on its
facts and had I been satisfied that the issue for determination
in this case was the identical issue decided in Mavour, I would
most certainly have followed the view of the majority of the
panel of this Court in Minister of Employment and Immigra
tion v. Widmont, [1984] 2 F.C. 274 (C.A.) and the unanimous
view of the Court in Murray v. Minister of Employment and
Immigration, [1979] 1 F.C. 518; (1978), 23 N.R. 344 (C.A.)
and I would have followed the Mavour case in the interests of
"sound judicial administration".
the adjudicator who presided at the adjourned inquiry, the
inquiry shall be recommenced.
I observe that subsections (1) and (3) thereof
employ the directory word "may" whereas subsec
tions (2) and (4) use the mandatory word "shall".
I note also that section 28 of the Interpretation
Act, R.S.C. 1970, c. 1-23 provides that, in every
enactment, "may" is to be construed as permissive
whereas "shall" is to be construed as imperative.
In Evans, Administrative Law: Cases, Text &
Materials, the authors in chapter 6 thereof consid
er the effect of breaches of procedural require
ments. At page 316, the problem which we face in
this case is discussed, namely, what are the tests to
be used where the legislation in question uses the
language of obligation ("shall") but it does not
state what the consequences of non-compliance
are? It is stated: "The first question to be con
sidered is whether, on the proper construction of a
statute, the procedure or formality in question was
one with which the tribunal was obliged to comply
or whether the statutory language indicates that
the legislature intended only to encourage or to
authorize the particular practice. As a general
rule, the use of the words `shall' or `must', as
opposed to a permissive `may', indicate that an
obligation has been imposed." I agree with that
view of the matter. It seems clear to me that, in
light of the provisions of the Interpretation Act
supra, and having regard to the use of "shall" in
portions of Regulation 35 and the use of "may" in
other portions, the obvious intention was to impose
an obligation on the adjudicator to comply with
the requirements of Regulation 35(2). Driedger in
Construction of Statutes, 2nd edition, states at
page 13: "It is submitted that may never means
shall and that shall never means may. The word
may, by itself, only grants permission or power and
does not impose a duty; if there is a duty, it arises,
not out of the word may, but out of the purpose
and text of the statute and the facts of the particu
lar case." And at page 14: "In the decisions the
word shall has been divided into two categories—
mandatory and directory. These are no doubt con
venient labels to describe results in a particular
case, but the distinction is linguistically unsound.
The word shall, unless used as a future auxiliary,
is always obligatory. If `directory' means only
advice or direction, leaving it open to comply or
not to comply with the statutory command, then
the word shall is being misused; if it means that
the advice or direction must be followed, then
`directory' is `mandatory'."
However, my conclusion that the requirements
imposed by subsection (2) of Regulation 35 are
obligatory and mandatory does not finally dispose
of the matter. The final issue to be addressed is to
determine what are the consequences of the failure
to comply with that provision. The starting point
for such a discussion is a statement from the
opinion of Lord Penzance in Howard v. Bodington
(1877), 2 P.D. 203, at page 211: "I believe, as far
as any rule is concerned, you cannot safely go
further than that in each case you must look to the
subject-matter; consider the importance of the
provision that has been disregarded, and the rela
tion of that provision to the general object intend
ed to be secured by the Act; and upon a review of
the case in that aspect decide whether the matter
is what is called imperative or only directory."
Applying that test to this factual situation, it is
necessary to consider the importance of Immigra
tion Regulation 35(2) in the context of the scheme
of the Immigration Act, 1976. Immigration
Regulations 27 to 39 provide detailed procedural
safeguards to ensure that the rights of the subject
of an inquiry are protected. The effect of subsec
tion 2 of Regulation 35 is to ensure inter alia that
the subject and his or her counsel will be fully
informed at all times of the status of the inquiry
and that they will be aware of all inquiry dates.
This is surely essential for the protection of the
subject's rights. If the inquiry is not resumed when
required but, for example, through inadvertence is
never resumed or is resumed without further notice
to the subject, the potential for prejudice would be
enormous—a deportation order could be made
without the subject being given an opportunity to
answer the allegations; or the subject's right to
claim refugee status "at any time during an inqui-
ry" under subsection 45(1) of the Act could be
taken away if the inquiry was completed without
the presence or knowledge of the subject of the
inquiry. I cite these extreme examples to empha
size the necessity for and the importance of this
subsection in the scheme of the Act. There is also
the possibility of further prejudice where, as here,
the person concerned is in detention. Section 104
of the Immigration Act, 1976 enables the respond
ent or his officials to issue a warrant for the arrest
of a person with respect to whom an inquiry, under
the Act, is to be held. Subsection (3) of that
section empowers an adjudicator to release that
person from detention upon such terms as are
considered appropriate, including the posting of a
performance bond or the payment of a cash depos
it. In this case, Adjudicator Smith continued the
applicant's detention on November 18, 1982. Had
the inquiry been resumed on November 22, 1982,
the presiding Adjudicator would have reviewed the
applicant's detention at that time. The record
clearly shows that the applicant's counsel appeared
on that date with two possible sureties who were
prepared to ensure the release from custody of the
applicant on that date either by the posting of a
performance bond or the making of a cash deposit.
Since the inquiry was not resumed on that date,
the applicant remained in custody for two more
days until November 24, 1982, at which time the
applicant was released on a cash deposit of $3,000.
This is a clear case of demonstrable prejudice since
the applicant remained in custody for two addi
tional days. 2 I think it not unreasonable to infer
that, since the Adjudicator released the applicant
on bail on November 24, in all likelihood the
release on bail would have been effected two days
earlier had the provisions of Regulation 35(2) been
complied with. In any event the applicant was
most certainly deprived of a bail review hearing on
November 22, to say the least. In my view, when
one of the consequences of non-compliance is the
probable continued detention in custody of the
subject of an inquiry, this cannot be considered a
trivial error. It is apparent from the record that
Adjudicator Smith was anxious to keep the
adjournment period to a minimum on November
2 it is also a case where the provisions of subsection 104(6)
would be of no assistance to the applicant since that subsection
only requires detention review every seven days.
18 because the applicant was in custody. This is a
laudable and proper position for an adjudicator to
take, having regard to the scheme and intent of the
Act which makes generous provision in section 106
respecting the right of an applicant during the
course of an inquiry to apply for release from
detention.'
Likewise I do not share the view that assuming
the Adjudicator lost jurisdiction on November 22,
she regained that jurisdiction on November 24
when the inquiry was purportedly resumed by her.
In this connection I find persuasive the decision of
the Supreme Court of Alberta, Appellate Division,
in the case of R. v. Stedelbauer Chevrolet Old-
smobile Ltd. 4 That decision dealt with the provi
sions of subsection 738(1) of the Criminal Code
[R.S.C. 1970, c. C-34] which provides: "738(1)
The summary conviction court may, in its discre
tion, before or during the trial, adjourn the trial to
a time and place to be appointed and stated in the
presence of the parties or their respective counsel
or agents, but no such adjournment shall, except
with the consent of both parties, be for more than
eight days." The law under the Criminal Code was
stated as follows: if the charges were adjourned to
a definite time and place, as required by subsec
tion 738(1), and that date passes with nothing
done, the Court loses jurisdiction over both the
person of the accused and the offence. A new
information would then be required and it would
not be permissible merely to issue new process
upon the previous information. However, if the
' In my experience it is also the usual position taken by
adjudicators. This is probably so because the power of arrest
and detention under section 106 is restricted. I also think it
likely that adjudicators are fully cognizant of the fact that the
inquiry proceeding is not a criminal proceeding and the subject
of the inquiry is not charged with a criminal offence.
4 (1974), 19 C.C.C. (2d) 359.
charges are simply improperly adjourned, such as
for longer than eight days without consent, or in
the absence of the accused, or if they are
adjourned sine die, jurisdiction is only lost over the
person but not over the offence, and new process
may issue on the outstanding information. I am
aware that the Supreme Court of Canada in the
case of Minister of Manpower and Immigration v.
Brooks, [1974] S.C.R. 850, at page 854 saw no
basis for introducing into administrative proceed
ings for deportation the "very different consider
ations which govern criminal charges". Neverthe
less, it seems to me permissible, by way of analogy,
to consider the approach of the Courts to a very
similar provision in the Criminal Code. This Court
in the case of Weber v. Minister of Manpower and
Immigration, [ 1977] 1 F.C. 750 (C.A.) adopted,
by analogy, a provision in the Criminal Code when
interpreting a Regulation under the Immigration
Act.
I think it also instructive to consider the
approach of this Court in cases where other regu
lations and sections of the statutes have been
breached. In the case of Faiva v. Minister of
Employment and Immigration, 5 the Court had to
consider the effect of non-compliance by an
Adjudicator with paragraph 27(2)(c) of the Immi
gration Regulations, 1978. That paragraph
requires an adjudicator at an inquiry to satisfy
himself, before any evidence is presented, that the
person concerned is able to understand and com
municate in the language in which the inquiry is
being held. In Faiva it was clear that the
Adjudicator was not so satisfied and held the view
that an interpreter was required. However, when it
became evident, after two adjournments, that the
Commission had been unable to find an interpreter
who could speak Tonganese, he took the view that
he had a duty to conduct the inquiry without an
interpreter if that was possible. Speaking for the
Court, Le Dain J. (as he then was) said [at pages
8-9 F.C.; at pages 760-761 D.L.R.]:
5 [1983] 2 F.C. 3; 145 D.L.R. (3d) 755 (C.A.).
Although I appreciate the difficulty in which the Adjudicator
found himself and the conscientiousness with which he
approached the issue before him, I am of the opinion that he
acted without jurisdiction or erred in law in proceeding, in
those circumstances and on that basis, to conduct the inquiry
and to receive the applicant's evidence without an interpreter.
His duty to conduct an inquiry was subject to the requirement
that an interpreter be provided if required to enable the person
concerned to understand and communicate. If an interpreter
was required, which was clearly his opinion, and could not be
provided, he no longer had a duty to proceed with the inquiry.
He did not have the right to do so. He did not have the right to
relax the normal standard or requirement concerning ability to
understand and communicate in the language of the inquiry.
This defect or error could not in my opinion be covered by the
Adjudicator's statement at the conclusion of the inquiry, after
the applicant had been made to give his evidence without the
aid of an interpreter, that he was by then satisfied that the
applicant had had a sufficient understanding and ability to
communicate. That statement must inevitably be viewed in the
light of the Adjudicator's earlier statement that he was pre
pared to relax the normal standard or requirement concerning
ability to understand and communicate. But the essential point
here in my opinion is that an adjudicator does not have
authority to proceed with an inquiry and to receive the evidence
of the person concerned without an interpreter unless he is
satisfied that the person concerned is able to understand and
communicate in the language of the inquiry. The Adjudicator
was clearly not so satisfied. The fact that it may not be possible
to conduct an inquiry if an interpreter in the required language
cannot be found does not in my opinion dispense with the
requirement, which is an essential right of the person con
cerned. He may in fact be prejudiced although it may reason
ably appear after he has given his evidence, as perhaps it did in
the present case, that he had a sufficient ability to understand
and communicate in the language of the inquiry.
Likewise, in the Weber case cited supra, this
Court quashed a deportation order for non-compli
ance with an immigration regulation similar to the
Regulation being considered in Faiva. Another
decision of this Court which is relevant to the issue
as to the effect to be given to non-compliance with
a section of the Immigration Act, 1976 is the case
of Singh v. Minister of Employment and
Immigration. 6 In that case, the Court was consid
ering the provision in subsection 70(2) of the
Immigration Act, 1976 which requires an appli
cant for refugee status, who wishes to apply to the
Immigration Appeal Board for redetermination of
his claim to Convention-refugee status, to accom
pany that application with a copy of the transcript
6 [1982] 2 F.C. 785 (C.A.).
of the examination under oath and a declaration
under oath. In Singh, the application was accom
panied by the transcript but not a declaration
under oath. The question before the Court was
whether the provision in subsection 70(2) for filing
a declaration under oath with the application is
mandatory. The Immigration Appeal Board did
not consider the applicant's claim on its merits
since it was of the opinion that it lacked jurisdic
tion because of the non-compliance with subsec
tion 70(2). In dealing with this matter, MacKay
D.J. said at page 798:
I am of the view that while it might be said that some of the
provisions of the section as to the content of the declaration
might be characterized as being directory, the provision for
filing his declaration under oath with his application for rede-
termination is mandatory.
If the provision of the statute as to having the declaration of
the applicant accompany his application for redetermination of
his claim to refugee status is in the discretion of the applicant,
the word "may" not "shall" would have been used in subsection
70(2) of the statute.
I can find no provision in the statute or rules that would
enable the Board to waive or dispense with the filing of the
applicant's declaration under oath or to proceed with the
consideration of the application for redetermination without
having the applicant's declaration before them.
The onus is on the applicant, in making his application for
redetermination of his claim, to comply with the provisions of
the statute. If he fails to do so, he cannot complain if his
application is dismissed.
Mr. Justice Urie also took the view that subsection
70(2) should be construed as mandatory rather
than directory (see page 796).' Another recent
case to the same effect is this Court's decision in
Copeland v. Minister of Employment and Immi
gration, judgment dated January 10, 1984, Feder
al Court, Appeal Division, A-1171-83, not yet
reported, where the Court set aside the deportation
order because the Adjudicator had failed to
observe Regulation 34(2) under the Immigration
Act, 1976 requiring the Adjudicator to invite sub
missions by counsel prior to making and announc-
7 As the third member of the panel in the Singh case, I
dissented but not on the question as to whether "shall" in
subsection 70(2) was directory or mandatory. It is implicit in
my reasons, as well, that "shall" in subsection 70(2) must be
construed as mandatory.
ing his decision.
On the other side of the ledger should be men
tioned the Saraos case, 8 the Emms case, 9 and the
Schaaf case. 10 In the Saraos case the issue was
whether a decision of the Immigration Appeal
Board must be set aside where the Board had
considered documents other than those referred to
in subsection 70(2) of the Immigration Act, 1976.
This had been the earlier view of this Court in a
number of decisions since the mandatory word
"shall" is employed in subsection 71(1) of the Act.
Pratte J., speaking for the Court, concluded that
non-compliance with the mandatory provision in
subsection 71(1) would not invalidate the Board's
decision where the evidence in question was in no
way prejudicial to the applicant and in cases
where, even if prejudicial, there was consent by or
on behalf of the applicant, to the inclusion of that
material. Mr. Justice Pratte concluded, however,
that the Board's decision should be set aside if the
evidence was prejudicial to the applicant and was
considered by the Board without his consent.
The Emms case concerned itself with the man
datory provisions of subsection 30(3) of the Public
Service Employment Regulations [SOR/67-129].
That subsection states that: "Where the probation
ary period of an employee is extended, the deputy
head shall forthwith advise the employee and the
Commission thereof in writing." After examining
the scheme and intent of the Regulations, Mr.
Justice Ryan, speaking for the Court, concluded
that [at page 183]: "It would be as well not to
encumber the power to extend with the perils of
literal compliance, and I do not find an intent so to
encumber it."
In Schaaf, there was non-compliance with two
of the Regulations under the Immigration Act,
1976, subsections 32(1) and 34(2). Subsection
32(1) requires the adjudicator to afford the person
concerned or his counsel at an inquiry, "a reason
8 Saraos v. Minister of Employment and Immigration,
[1982] 1 F.C. 304 (C.A.), at p. 309.
9 Emms v. R., [ 1978] 2 F.C. 174 (C.A.), at p. 183.
10 Schaaf v. Minister of Employment and Immigration,
[1984] 2 F.C. 334; 52 N.R. 54 (C.A.).
able opportunity to present such evidence as he
deems proper and the adjudicator allows". Subsec
tion 34(2), as noted supra, requires the adjudica
tor to invite submissions by counsel prior to
making and announcing his decision. The majority
of the Court (Mahoney and Hugessen JJ.A.) held
the view that since these errors could not and did
not have any effect upon the outcome of the
inquiry, non-compliance would not vitiate the
inquiry. The Chief Justice, while agreeing with the
result proposed by the majority, did so on the basis
that the applicant had waived the rights afforded
to him under the Regulations by the concessions
made by his counsel at the inquiry.
What then is to be deduced from the jurispru
dence generally and the jurisprudence of this
Court in particular on this issue? The approach
which appears to have found favour is one which
could be characterized as a functional approach—
that is to say—the Court will decide the issue on
the particular facts of the case at bar after exam
ining the practical consequences of non-compli
ance. de Smith's Judicial Review of Administra
tive Action, 4th edition, articulates this approach
at page 145 as follows: "The practical effects of
the exercise of a power upon the rights of individu
als will often determine whether the relevant
formal and procedural rules are to be classified as
mandatory or directory." Accepting that approach
and applying it to the factual situation as I per
ceive it in this case, I conclude that this is not a
case which should be governed by the Saraos,
Emms and Schaaf line of cases where there was no
demonstrable prejudice or possibility of prejudice.
In this case, as noted supra, the consequence of
non-compliance was that the applicant was
deprived of a bail review hearing on November 22
and she was, in all likelihood, deprived of her
liberty for a further two days. In my view, these
are serious consequences entitling the Court to
vitiate the inquiry. I find it disturbing that an
Adjudicator chooses to disregard a mandatory
provision of the Regulations designed for the pro
tection of both parties to an inquiry.
For these reasons, I would allow the section 28
application and set aside the deportation order
herein.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: The sole issue in this section 28
application to set aside the decision of an
Adjudicator to order the applicant to be deported,
is whether or not the Adjudicator had the jurisdic
tion to make the impugned order.
Briefly put the circumstances giving rise to the
issue are these. On the morning of Thursday,
November 18, 1982, an inquiry was convened pur
suant to the Immigration Act, 1976 ("the Act") to
determine whether or not the applicant, who was
then in detention, should be deported because she
had failed to leave Canada before a date specified
in a departure notice which had been issued to her
early in 1981. Later in the day, after several
adjournments, counsel appeared on behalf of the
applicant. The inquiry was adjourned at his
request to enable him to prepare for it, until one
o'clock on Monday, November 22, 1982. Deten
tion was continued.
The record is unclear as to what happened at the
time fixed for resumption of the inquiry on
November 22 but, apparently, over the week-end,
the applicant had been arrested under a section of
the Immigration Act, 1976 and was in custody at a
location different from that at which she had
previously been detained. She did not appear at
the time and place fixed for the resumption of the
inquiry although her counsel did. Unfortunately,
there is no record whatsoever of whatever trans
pired in his presence on November 22. However,
on November 24, 1982 there is a "Transcript of
Inquiry RESUMED [sic] at the Canada Immigra
tion Centre ... at 3:30 p.m...." Mr. Goldstein,
counsel for the applicant, as well as the Case
Presenting Officer, Mr. Fader, who had been
present at the November 18 hearing, appeared
before an Adjudicator, Ms. Shaw. After some
protestations by Mr. Goldstein, the nature of
which will later appear, the inquiry continued to
the point that the Adjudicator would have ordered
the applicant to be deported had she not made a
claim to be a Convention refugee. As a result, the
inquiry was adjourned in accordance with section
45 of the Act so that her claim to be a refugee
could be dealt with.
The inquiry was eventually resumed on May 17,
1984 after it had been determined that the appli
cant was not a Convention refugee. She was
ordered deported. It is that order which the appli
cant attacks on the ground that the whole proceed
ing after November 18, 1982 was illegal in that by
failing to resume the inquiry at the time to which
it had been adjourned, namely, one o'clock on
November 22, 1982, the Adjudicator lost jurisdic
tion by virtue of section 35 of the Immigration
Regulations, 1978. Consequently, all subsequent
proceedings were held without jurisdiction and the
deportation order was, therefore, void.
Section 35 of the Regulations reads as follows:
35. (1) The adjudicator presiding at an inquiry may adjourn
the inquiry at any time for the purpose of ensuring a full and
proper inquiry.
(2) Where an inquiry is adjourned pursuant to these Regula
tions or subsection 29(5) of the Act, it shall be resumed at such
time and place as is directed by the adjudicator presiding at the
inquiry.
(3) Where an inquiry has been adjourned pursuant to the
Act or these Regulations, it may be resumed by an adjudicator
other than the adjudicator who presided at the adjourned
inquiry with the consent of the person concerned or where no
substantive evidence has been adduced.
(4) Where substantive evidence has been adduced at an
adjourned inquiry and the person concerned refuses to consent
to the resumption of the inquiry by an adjudicator other than
the adjudicator who presided at the adjourned inquiry, the
inquiry shall be recommenced.
It was counsel's submission that the loss of
jurisdiction occurred as a result of the Adjudica
tor's failure to comply with the mandatory require
ment of subsection (2) envisaged by the phrase
"shall be resumed at such time and place as is
directed by the adjudicator".
It would be useful, I think, to set out in full
what transpired at the commencement of the
"Inquiry resumed ..." on November 24, 1984
after the opening formalities had been disposed of.
ADJ Thank-you. Mr. Fader, would you read into the
record, please, the Direction and Report.
CPO Yes.
CL Just a moment, before Mr. Fader starts, I'm just a
mite confused here. I appeared on this matter of
November 18th, 1982 before Mr. Smith, Adjudicator,
and the matter was adjourned till Monday, this
Monday, 22nd November 1982.
ADJ Yes. Excuse me, I should have explained, Adjudicator
Smith is not available today. And the file shows that
the Direction and Report haven't been entered.
CL Yeah, I just have one point. I came down here on
22nd November prepared for the inquiry with the two
observers as indicated and it was brought to my
attention that Miss Kosley would not be at the inquiry
as she was now under custody of other court officials
on Main Street. I then expressed my concern to Mr.
Gordon as to what would occur and Mr. Gordon
indicated that since she was under the custody of
the—in the Criminal Courts—that that matter would
be resolved.
ADJ Excuse me, please allow the Interpreter to interpret.
CL Yes, alright.
(Interpreter complied)
CL And then, after that was resolved she would then be
brought back to inquiry where there could be another
application for bail. Now, the question, or the issue is
this, that this inquiry was convened for Monday. I
was here. I understand Mr. Gordon from the Depart
ment was here, but nothing took place. And surely,
the procedure should be that as that inquiry was set to
take place on that particular day, that your first
concern should be why this person is in custody and
we might be allowed the opportunity to make submis
sions concerning bail.
ADJ Are you not prepared to proceed with the case today?
CL Well, I, what I—Madam Adjudicator, if you under
stand my concern, I'm at one time told one thing. I
come down here on Monday for—I'm prepared to
proceed, but what I'm saying is that I was told that
when this lady came back to the Department at some
time that the Department would then consider an
application for bail, and that's what I'm concerned
about at this time. I then come down today. I was
contacted by Mr. Fader this morning to indicate that
she had returned to the Department. Now, either we
have a continuation of something or this is entirely a
new inquiry.
ADJ This is a resumption of the inquiry which opened on
18th November 1982.
CL And I'm saying to you that that—
ADJ It appears that in the intervening period there was a
resumption set for another date; I'm not sure, you said
Monday?
CL On Monday, yes, one o'clock.
ADJ And through circumstances that were not within the
control of an Adjudicator, that resumption did not
take place; it's taking place now.
CL And I'm saying that this is that the first issue that you
must consider is the application for bail.
ADJ There is no reason for me to consider bail at this
particular time. The resumption that was scheduled
for the 22nd was it, was for the inquiry. So, this is
what's going to take place at this time.
CL But that inquiry did not take—in other words, what
I'm saying, it was not, that inquiry that was to take
place on the 22nd was not adjourned by Mr. Smith. It
was simply, I came down here. They said Miss Kosley
was not here; she's in the federal authorities, and they
didn't know when she'd ever come back here. And
what I'm saying is, if there was no adjournment of the
issue on the 22nd then this, as I take it, is not a
resumption of this adjudication; it is, in fact, a new
adjudication where there should be an issue addressed
as to an application for bail for the release of this
person.
ADJ Well, that can be dealt with if I find that the person is
described in the section of the Immigration Act.
There's no point in me considering detention at this
point. It could very well be that the person is not
described.
CL Well, it could be, but ...
ADJ 1 think that we're not being very efficient here by not
dealing with the allegations.
Mr. Fader, would you read the Direction and the
Report, please.
From this exchange several facts emerge:
1. The Adjudicator who presided on November
18, 1982, Mr. Smith, did not preside at the
November 24 hearing and no objection was
taken to that change. (At the hearing in this
Court counsel conceded that since no evidence
had been called the change in Adjudicators was
not improper.)
2. Applicant's counsel on November 18, Mr.
Goldstein, had also appeared both on November
22 and November 24.
3. The Case Presenting Officer on November 18
and November 24 was the same, viz. Mr. Fader.
Whether he was present on November 22, is not
known.
4. A Mr. Gordon "from the Department" met
with Mr. Goldstein on November 22. Whether
he appeared as Adjudicator or Case Presenting
Officer is not clear.
5. Whatever occurred on November 22, some
one fixed a time for the resumption of the
inquiry on November 24 because not only did
the two counsel, Mr. Fader and Mr. Goldstein,
as well as his client, appear, but so did the new
Adjudicator, Ms. Shaw. Obviously neither Mr.
Fader nor any one appearing on his behalf, nor
Mr. Goldstein could have fixed that time and
place. It would have to have been an Adjudica
tor who made the further adjournment to a fixed
date and time, if I correctly understand the
requirements of section 29 of the Act. Whether
Mr. Gordon did so is far from clear. But what is
clear is that someone in authority did so because
both counsel, the applicant and the Adjudicator
assembled for the inquiry on November 24 at
three o'clock at which time it proceeded to a
conclusion.
From all of the foregoing it is apparent that the
only missing link is a transcript of whatever trans
pired at one o'clock on November 22. So far as I
have been able to ascertain either on my own or
from counsel, there is no specific requirement in
the Act or Regulations that the proceedings at an
inquiry be transcribed. As a matter of practice
they usually are. It is a prudent practice because
as here, the failure to do so may lead to specula
tion as to what occurred. If the necessity to specu
late cannot produce a reasonable inference from
the known facts and, of course, if the rights of the
person concerned are adversely affected by the
inference, none should be drawn. However, in this
case, from the known facts the only reasonable
inference to be drawn is that an Adjudicator at the
time and place designated for the resumption of
the inquiry adjourned it for good reason to
November 24 at three o'clock in the afternoon at
which time both the applicant and her counsel
were present. Neither was, because of the second
adjournment, unprepared to proceed and they did,
in fact, proceed. Not the slightest prejudice
accrued to the applicant either from the failure to
transcribe the November 22 proceedings or the
adjournment to November 24. From the known
facts, therefore, and from the reasonable inference
to be drawn therefrom, I conclude that on Novem-
ber 22 the inquiry was further adjourned to
November 24, 1982 at three o'clock in the after
noon. There was, therefore, no loss of jurisdiction
as I see it because there was no failure to comply
with the requirements of subsection 35(2) of the
Regulations.
I would add that, in all the circumstances, I
would have thought it incumbent on the applicant
to seek to have the record varied by adducing
evidence by way of affidavit to enable the Court to
be satisfied that there had been no resumption of
the adjourned hearing at the time and place speci
fied, if she hoped to succeed on an objection to
jurisdiction. In circumstances such as this the onus
is on the person alleging want of jurisdiction, to
establish, at least prima facie, his allegation. This
the applicant failed to do.
Even if I am wrong in my conclusion on the
facts there is jurisprudence in this Court which, it
seems to me, disposes of the matter. In Mavour v.
Minister of Employment and Immigration, [ 1984]
2 F.C. 122 (C.A.) counsel for the applicant,
attacked the validity of the Adjudicator's decision
on the ground that she had lost jurisdiction to
continue the inquiry by her failure to resume it on
March 30, 1983 the date to which it had been
adjourned. At pages 129-130 of the judgment, Mr.
Justice Le Dain noted that the attack was based on
the principle stated by Dickson J., as he then was,
in R. v. Krannenburg, [ 1980] 1 S.C.R. 1053 at
page 1055 as follows:
"It has long been recognized in our law that an inferior court
may suffer loss of jurisdiction by reason of some procedural
irregularity, as for example, when the date to which an accused
is remanded or to which a case is adjourned for trial comes and
goes without any hearing or appearance, 'with nothing done'."
This principle, which was first authoritatively affirmed by the
Supreme Court of Canada in Trenholm v. The Attorney-Gen
eral of Ontario, [1940] S.C.R. 301, has been applied in many
cases, but as far as I have been able to ascertain it has always
been applied to courts of criminal jurisdiction and to criminal
proceedings. Counsel for the applicant was unable to refer us to
any case, and I have been unable to find any, in which the
principle has been applied to proceedings before an administra
tive tribunal, whether exercising powers of a judicial or quasi-
judicial nature or not. In my opinion this is not a principle
which it is appropriate to apply to administrative tribunals,
which must have some reasonable flexibility in their power to
adjourn and resume hearings. That flexibility is reflected in
subsection 35(2) of the Immigration Regulations, /978, which
provides: "Where an inquiry is adjourned pursuant to these
Regulations or subsection 29(5) of the Act, it shall be resumed
at such time and place as is directed by the adjudicator
presiding at the inquiry." I do not think the circumstance that
detention may be involved makes it appropriate to apply the
principle affirmed in Krannenburg to a failure to resume an
inquiry on the date to which it was adjourned. Subsection
104(6) of the Act makes provision for the regular review of the
reasons for a continued detention quite apart from the progress
of an inquiry. I am, therefore, of the view that the Adjudicator
did not lose jurisdiction by her failure to resume the inquiry on
March 30, 1983, the date to which it had been adjourned.
This approach is consistent, if I may say so with
respect, with that stated by Laskin J., as he then
was, in Minister of Manpower and Immigration v.
Brooks, [1974] S.C.R. 850, at page 854 that:
Equally, I see no basis for introducing into administrative
proceedings for deportation, albeit they are invested with the
procedural safeguards of a judicial hearing, the very different
considerations which govern criminal charges.
It is my conclusion, therefore, that sound
administration of justice, judicial comity or stare
decisis (no matter how the principle is character
ized) requires that the decision of this Court in
Mavour should be followed since I am certainly
not convinced that that decision is incorrect (com-
pare Minister of Employment and Immigration v.
Widmont, [1984] 2 F.C. 274 (C.A.). That being
so, the applicant's contention that the Adjudicator
in this case lost jurisdiction must fail.
Accordingly, I would dismiss the section 28
application.
STONE J.: I agree.
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.