T-1225-85
Debora Bhatnager (Applicant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respon-
dents)
INDEXED AS: BHATNAGER V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Trial Division, Strayer J.—Ottawa, March 30,
1988.
Practice — Contempt of court — Penalties — court of
Appeal finding ministers guilty of contempt of court — Refer
ring matter back to Trial Judge for imposition of penalty, if
any — Failures institutional in nature as no direct personal
act or knowing failure to act by either minister — Ministers'
contribution to institutional failure consisting of failure to
ensure procedure existing whereby informed of court orders or
necessary priority given to compliance with direct order of
court — Assessment of penalty based on no permanent preju
dice to applicant from failure to produce file; no question of
ensuring future compliance as time for compliance long past;
and, ministers' responsibility of formal nature only — Court's
authority and rule of law vindicated by convictions against
ministers, their presence at proceedings, assurances of respect
for Court's orders and steps taken in this regard — No
penalties imposed — Costs to applicant on solicitor and client
basis.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
Federal Court Rules, C.R.C., c. 663, R. 355.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Bhatnager v. Canada (Minister of Employment and
Immigration), [1986] 2 F.C. 3 (T.D.).
REFERRED TO:
Reference re Manitoba Language Rights, [1985] 1
S.C.R. 721; Bhatnager v. Canada (Minister of Employ
ment and Immigration), [1988] 1 F.C. 171 (C.A.).
AUTHORS CITED
Bowen, C. D. The Lion and the Throne, Toronto: Little,
Brown, 1956.
COUNSEL:
Clayton C. Ruby for applicant.
John J. Robinette, Q.C. and Eric A. Bowie,
Q.C. for respondents.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
STRAYER J.: The Federal Court of Appeal by a
judgment of January 8, 1988 [[19881 1 F.C. 171]
found the respondents guilty of contempt of court
and referred the matter back to me for "the impo
sition of a penalty, if any, therefor". That is the
question to be addressed.
There has never been any doubt in this case as
to whether ministers and other government offi
cials are subject to the law, and therefore subject
to duly issued orders of this Court. This is a
principle which has been recognized for centuries
in the system of public law we inherited in
Canada.' It is an aspect of the rule of law. The
rule of law has always been implicit in our
constitution 2 and is now referred to explicitly in
the preamble to 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.)]. The relevant law for present pur
poses is the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] which imposes on this Court the
responsibility of reviewing certain actions of the
federal government, whether those of ministers or
' As Lord Coke, Chief Justice of the Common Pleas,
observed to King James I in 1608, Quod Rex non debet esse
sub homine, sed sub Deo et lege. He was, of course, quoting
from Bracton's 13th century work, Tractatus de legibus et
consuetudinibus Angliae. See Bowen, Catherine Drinker. The
Lion and the Throne, Toronto: Little, Brown, 1956, at p. 305.
2 Reference re Manitoba Language Rights, [1985] 1 S.C.R.
721, at pp. 747-752.
officials, to determine if they are in accordance
with law; and to ensure that its orders are imple
mented. The Act thereby also imposes on ministers
and officials the duty of complying with decisions
of this Court.
As I said in my judgment of December 20,
1985. 3
It is unquestionably one of the strengths of our governmental
system that ministers are not above the law and are answerable
in Court if they fail to abide by the law in the conduct of their
official functions. It is equally true that they are entitled to the
same defences in law as are ordinary citizens.
Thus the issue has been as to whether anyone—
minister, official, or private citizen—can be found
guilty of contempt of court for violation of an
order of which he or she had no knowledge at the
time of its infringement.
With respect to that issue, I concluded in my
original judgment that no one could be subjected
to potential penalties for contempt of court unless
there was some evidence that the order violated
had by some means been brought to his or her
attention. There was no proof that the order in
question here, issued by Associate Chief Justice
Jerome on August 15, 1985, was brought to the
attention of the two ministers, the Secretary of
State for External Affairs and the then Minister of
Employment and Immigration, prior to its breach.
Indeed, those who were counsel for the Minister at
the time of these events have since confirmed to
the Court of Appeal that while they had knowl
edge of the order they had not passed on such
knowledge to the two Ministers.
The Court of Appeal has decided however that
the ordinary rules of this Court applicable to civil
actions should apply. In civil actions, notice to a
party's lawyer is deemed to be notice to the party
himself. So the Court of Appeal has said that
notice to a lawyer should apply also to fix his
clients with knowledge for the purpose of prosecut
ing them for contempt of court. Again, this finding
applies to anyone who is a party to an action in
this Court whether he or she is a minister or a
private citizen.
3 [1986] 2 F.C. 3, at p. 19.
Consequently the Federal Court of Appeal has
declared that the former Minister of Employment
and Immigration, the Honourable Flora Mac-
Donald, and the Secretary of State for External
Affairs, the Right Honourable Joseph Clark, were
in contempt of court in failing to obey an order of
the Associate Chief Justice of August 15, 1985.
The Court of Appeal has referred this matter back
to me for the imposition of penalties, "if any",
under Rule 355 of the Federal Court Rules
[C.R.C., c. 663].
It may be well to recall briefly the origins of this
matter. Mrs. Bhatnager, a Canadian citizen, had
been waiting since early 1981 for a decision on her
application to sponsor her husband, who was in
India, as an immigrant for permanent residence in
Canada. In 1985 she finally applied to this Court
for an order of mandamus to require the officers
of the respondents, at the Canadian High Com
mission in New Delhi, to make a decision. Her
counsel needed to see the New Delhi file on this
matter in order to prepare for the hearing in the
Federal Court. After unsuccessful requests for the
file, she obtained an order from Associate Chief
Justice Jerome on August 15, 1985, that the file be
produced in Toronto in adequate time for prepara
tion for the Court hearing on September 3, 1985.
The file was not produced until August 30, too late
for preparation. I was able to proceed with the
hearing and held in favour of Mrs. Bhatnager. I
issued the requested mandamus order on October
15, 1985 [[1985] 2 F.C. 315(T.D.)] requiring that
a decision be made on the sponsorship application.
However, these contempt proceedings were con
tinued because of the earlier failure to respect the
order to produce the file in a timely fashion.
The assessment of penalties in such a case is
extremely difficult. It is apparent from the evi
dence which I heard that the rights of Mrs. Bhat-
nager were impaired by the failure of two depart
ments of government to respond to the court order.
However, there was nothing to suggest any direct
personal act, or knowing failure to act, of either of
the ministers. In a sense the failures were institu
tional in nature. To the extent that they were
personal they were the failures of certain depart
mental officials in New Delhi, in Ottawa, and
perhaps in Toronto. There were negligence, misin
formation, and indifference to the rights of Mrs.
Bhatnager. I implied in my judgment that some of
those officials who knowingly or negligently pre
vented compliance with the order for production of
the file might themselves have been guilty of con
tempt of court. What I had in mind was that they
could be guilty of interfering with the orderly
administration of justice or impairing the author
ity of the Court even though the court order was
not directed against them. However these officials
have not been proceeded against. Instead, the min
isters have been proceeded against and found
guilty of contempt.
I can only deduce that if the ministers have
contributed to the institutional failure, it is by
reason of not ensuring that a system existed where
by they would either be informed of such orders so
that they could ensure departmental compliance,
or whereby the necessary priority would be given
within their departments to compliance with a
direct order of the Court. They have appeared
before me today and have made statements to the
effect that they respect the authority of this Court
and have taken steps to ensure compliance by their
departments with its orders.
In considering what penalties, if any, should be
imposed I have had regard to factors such as the
following.
First, Mrs. Bhatnager has not been permanently
prejudiced by the failure in production of the file:
she in fact obtained from the Court the order she
was seeking.
Second, there is no question of ensuring future
compliance with this order. The time for compli
ance has long since passed.
Third, the responsibility of the respondent min
isters in this matter as compared to that of the
officers directly involved is of a formal nature
only. The fact that convictions have been entered
against them, their presence at these proceedings
today, their assurance of respect for the Court's
orders, and the steps they have taken in this
regard, suffice in these circumstances to vindicate
the authority of the Court and the rule of law.
No penalties therefore will be ordered. The
applicant is entitled to costs on a solicitor and
client basis in respect of the hearing today in
Ottawa and in Toronto on February 26, 1988, and
in respect of the application for a stay of
proceedings.
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.