T-240-87
Dianena Alvero-Rautert (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: ALVERO-RAUTERT V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION)
Trial Division, Muldoon J.—Winnipeg, April 21
and December 14, 1987; Ottawa, January 11,
1988.
Immigration — Sponsorship — Family class — Dependants
— Sponsorship application submitted close to date person to
be sponsored attaining age 21 — Deadline not met as Depart
ment treated application in routine, casual fashion — Surface
post, not telex, used to transmit document to Philippines —
Departmental administration negligent, in view of urgency of
situation, in not making reasonable efforts to treat application
according to legislator's will — In certain cases, admissibility
of dependant of member of family class to be determined as of
date of undertaking of assistance — Dates of important events
determined according to Canadian time, regardless of whether
event occurring on other side of International Date Line.
Judicial review — Prerogative writs — Immigration —
Sponsorship — Family class — Dependants — Sponsored
brother's application for landing, submitted close to date
turning 21, refused due to immigation officer's negligent or
indolent conduct in not treating application with all deliberate
speed — Act s. 79 giving sponsor right of appeal to Immigra
tion Appeal Board from refusal of application by member of
family class, not, as here, from refusal to include alleged
dependant of such member — Invocation of Bill of Rights and
Charter lifting case of alleged maladministration out of priva-
tive provision of Act s. 59.
Constitutional law — Charter of Rights — Criminal process
— Unusual treatment — Immigration — Sponsorship
application submitted close to date dependant turning 21 —
Deadline not met — Unusual treatment as applicant's right to
sponsor infringed by immigration officer's personally negligent
or officially indolent conduct in not treating application with
all deliberate speed.
Constitutional law — Charter of Rights — Equality rights
— Immigration — Sponsorship application submitted close to
date dependant turning 21 — Deadline not met — Applicant
discriminated against as immigration officer, practice and
policy did not regard application worthy of urgent transmis
sion.
Bill of Rights — Immigration — Sponsorship application
submitted close to date dependant turning 21 — Deadline not
met — Unusual treatment as applicant's right to sponsor
infringed by immigration officer's personally negligent or offi
cially indolent conduct in not treating application with all
deliberate speed — Right to fair hearing not afforded where
decision based on wrong information and applicant not given
opportunity to explain failure to meet deadline not own fault.
On July 31, 1984, the applicant herein applied for Canadian
citizenship, the first day upon which she was eligible to do so.
Since she intended to sponsor her family, including a brother
who would attain 21 years of age on April 19, 1985, she made
efforts to speed up the process but could not take her oath of
citizenship before April 1, 1985. In the meantime, she was told
by immigration officials that she could sponsor her brother up
to April 19, 1985. She presented the application to sponsor her
family at the earliest possible date—April 16, 1985 but it was
not "authorized" until April 19. At no time was she told that
there would be any difficulty with the sponsorship of her
twenty-year-old brother. The sponsorship undertaking, sent to
the Canadian Embassy in Manila by surface mail, arrived there
on May 16, 1985. For her brother to be eligible, the sponsorship
undertaking would have to have been communicated to the
Embassy in the Philippines in time for the Embassy to contact
her brother and have him fill out an immigration application
form before April 19, 1985. Since September 1986, it has been
the policy of the immigration authorities to telex the informa
tion on a sponsorship application to a post abroad when an
accompanying dependant of a family class applicant is
approaching twenty-one years of age.
This is an application for certiorari to quash the decision of
the respondent Minister that the applicant's brother is not a
dependant within the meaning of section 2 of the Immigration
Regulations, 1978 and for mandamus ordering the respondent
to process her brother's application for permanent residence as
an accompanying dependant of his father.
Held, the application should be allowed.
The immigration officer who handled the sponsorship
application and the personnel of the respondent's department, if
not also the very respondent at that time, were negligent,
lackadaisical and entirely wanting any reasonable sense of
urgency in such matters. Their negligence, coupled with inade
quate regulations in this case frustrated the will of Parliament.
This Court had jurisdiction to hear this case. The applicant
could not appeal the decision under section 79 of the Immigra
tion Act, 1976. As was stated by the Federal Court of Appeal
in Bailon, section 79 makes it clear that a sponsor has a right of
appeal to the Immigration Appeal Board from the refusal of an
application by a member of the family class, but not, as here,
from the refusal to include an alleged dependant of such a
member. Furthermore, the invocation of the Bill of Rights and
of the Charter can lift this case of alleged maladministration
out of the privative provision of section 59 of the Act.
That the alleged thwarting of the applicant's right occurred
as a result of executive maladministration was no impediment
to an application for relief. The duty of fairness still applied.
And it was the Regulations, which had the same force of law as
the statute, that are the genuine source of the applicant's right
of sponsorship of her family, including her brother.
Given the circumstances of the present case, applying the
case of Mahida, the admissibility of the applicant's brother as a
dependant of their father should be determined according to
the date of the undertaking of assistance—April 16—not, as is
normally the case, that of the immigration application. The fact
that the applicant started the process in Canada, to the east of
the International Date Line, for further action in Manila, to the
west of that Line, is of no consequence. The brother's birthday,
for the purposes of the Act, is to be determined according to
Winnipeg time.
The applicant's right to sponsor her family, including her
brother was infringed by the immigration officer's personally
negligent or officially indolent conduct in not transmitting the
applicant's sponsorship with all deliberate speed and he thereby
imposed unusual treatment on her, contrary to paragraph 2(b)
of the Bill of Rights and section 12 of the Charter. Further
more, she was denied the right to a fair hearing, as guaranteed
by paragraph 2(e) of the Bill of Rights in that the decision-
maker in Manila based his decision on the erroneous statement
that the undertaking was dated April 19, 1985 instead of April
16. The applicant was not there to correct that error, to point
out that the deadline had been missed through no fault of her
own, or to argue points of law. Thus she was denied equal
protection of the law.
Section 15 of the Charter came into force on April 17, 1985,
the day after the applicant presented her application to sponsor.
It is now apparent that if, as a landed immigrant, she had
asserted the right to sponsor her parents, the refusal could have
been quashed under section 15. She was the object of discrimi
nation because her application was made close to the deadline
and departmental personnel, practice and policy did not regard
her application worthy of urgent transmission in April, 1985.
The applicant cannot be faulted for the "delay", from June,
1985 to February, 1987, in the bringing of this application. In
fact her lawyers made repeated efforts to obtain redress from
the Minister, but to no avail.
The Regulations here under consideration cry out for proce
dural reform in view of the general incidence of problems which
they generate.
Neither the Act nor the Regulations were to be construed or
applied so as to confirm or crystallize the unusual treatment in
regard to the applicant's right as of April 16, 1985.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III, ss.
1(b), 2(b),(e).
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. 12, 15, 32(1)(a).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 59.
Immigration Regulations, 1978, SOR/78-172, ss. 2(1),
4(1)(c), 5(1), 6(1)(b) (as am. by SOR/79-167, s. 2).
Interpretation Act, R.S.C. 1970, c. I-23, s. 25(9).
CASES JUDICIALLY CONSIDERED
APPLIED:
Ballon v. Canada (Minister of Employment and Immi
gration), judgment dated June 16, 1986, Federal Court,
Appeal Division, A-783-85, not reported; Singh et al. v.
Minister of Employment and Immigration, [1985] 1
S.C.R. 177; Mahida v. Minister of Employment and
Immigration et al. (1987), 11 F.T.R. 150 (F.C.T.D.).
CONSIDERED:
Pangli v. Canada (Minister of Employment and Immi
gration) (1988), 81 N.R. 216 (F.C.A.); Dhaliwal v.
Canada (Minister of Employment and Immigration),
order dated January 26, 1987, Federal Court, Trial Divi
sion, T-105-87, not yet reported; Hundal v. Canada
(Minister of Employment and Immigration), order dated
February 16, 1987, Federal Court, Trial Division,
T-264-87, not yet reported.
REFERRED TO:
Prata v. Minister of Manpower & Immigration, [1976] 1
S.C.R. 376; (1975), 52 D.L.R. (3d) 383; Minister of
Employment and Immigration v. Robbins, [ 1984] 1 F.C.
1104 (C.A.); In re Immigration Act, 1976 and in re
Kahlon, [1985] 2 F.C. 124 (T.D.) reversed [1986] 3 F.C.
386 (C.A.); Rajpaul v. Canada (Minister of Employment
and Immigration), [1987] 3 F.C. 257; (1987), 10 F.T.R.
189 (T.D.); Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [ 1979] 1 S.C.R. 311;
Wong v. Minister of Employment and Immigration
(1986), 64 N.R. 309 (F.C.A.); Martineau v. Matsqui
Institution Disciplinary Board, [1980] 1 S.C.R. 602.
COUNSEL:
David Matas for applicant.
Brian H. Hay for respondent.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: This matter was heard in two
sessions, on April 21, 1987, and on December 14,
1987, in Winnipeg. The applicant was permitted at
the latter session to amend her notice of motion so
that it proceeds in final but abridged form, thus:
TAKE NOTICE that an Application will be made on behalf of the
Applicant ... for:
(1) CERTIORARI quashing the decision of the Respondent that
Winchel Alvero is not a dependent as described in para
graph 2 of the Immigration Regulations of 1978; and
(2) MANDAMUS ordering the respondent to process the
application for permanent residence of Winchel Alvero as
an accompanying dependent of his father William Alvero;
AND TAKE FURTHER NOTICE that the Applicant will apply in
the alternative, for;
CERTIORARI quashing the decision of the Respondent not
to process Winchel Alvero for humanitarian landing, and
referring the matter back for reconsideration on the basis
that:
(1) The existence of siblings of Winchel Alvero in the
Philippines is not relevant to a decision on humanitarian
and compassionate relief,
(2) What is relevant is facilitating the reunion in
Canada of Winchel Alvero with his family in Canada,
AND TAKE NOTICE that the Applicant will ask for such other
order as may seem just;
AND...
The issue is the eligibility for sponsored immi
gration of the applicant's brother Winchel, who
attained his twenty-first birthday during the spon
sorship process and, therefore, before it was com
pleted. At the outset, it can be stated without any
doubt that, of all the people involved in this
matter, the applicant herself never made a misstep
and never delayed any of the proceedings during
the material times.
The affidavits of the applicant, and others, filed
in this matter stand as expressed, for none of the
deponents was cross-examined thereon. Briefly, in
terms of the uncontradicted evidence before the
Court, the whole essential history of this affair
runs as follows:
1984
May 23—The applicant's brother Winchel swears that he and
his sister Wilna attended at the Canadian embassy in Manila,
this day, and were told that the visa office there would not give
them "immigration application forms until the sponsorship
application of our sister [the applicant herein] had been filed
and approved in Canada and that approval had been com
municated to the visa office in the Philippines."
July 31—The applicant applied for Canadian citizenship, the
first day upon which she was eligible to apply, as shown by
exhibit "A" to her third affidavit, sworn September 18, 1987;
August to December—The applicant had to wait to be inter
viewed by a citizenship judge. As she later personally dis
covered, and as is demonstrated by exhibit "C" to her third
affidavit, the three-year term of the only citizenship judge in
Manitoba at that time, expired on November 15, and there was
a case load of about 400 cases to be processed, with an
increasing intake of about 500 new cases each month. By
December, the applicant became concerned that the delays in
processing her citizenship application could jeopardize her
sponsorship of her brother, who would attain the age of 21
years on April 19, 1985, as shown by exhibit "D" to her first
affidavit.
December—The applicant telephoned to the immigration office
in Winnipeg, "general enquiries", and told the person who
answered that she was intended to sponsor her family including
"a brother who was turning 21" and "asked when was the last
date" she could sponsor. The applicant swears that the men
tioned person told her that if she applied to sponsor her family
prior to her brother's 21st birthday, he would be eligible for
sponsorship. That person did not tell her that her brother had to
file his own immigration application at the Canadian visa office
overseas before his 21st birthday.
1985
February 11—The applicant was interviewed by a citizenship
judge and was recommended for citizenship. Exhibit "D" to her
third affidavit.
—The applicant, also in February, not having yet taken her
oath of citizenship, made an appointment at the immigration
office for March 27, expecting that by that date she would have
been permitted to take her oath.
March 20—The oath-taking still not scheduled for her, the
applicant cancelled the March 27 appointment. The first avail
able date which the immigration office could designate for her
appointment was April 16, 1985.
—Finally, the applicant was scheduled May 2, as shown by
exhibit "E" to her second affidavit. She, however, arranged for
an earlier date, prior to her appointment scheduled for
April 16.
April 11—The applicant took her oath of citizen this day as
shown by exhibit "D" above mentioned. However, unable to
obtain her certificate that very day, she sought and obtained
from the Court of Canadian Citizenship a letter (ex. "F")
confirming her new status as citizen "for presentation to
Canada Immigration Officials". Her certificate, number
3677627, (ex. "G") confirms that she became a citizen on April
11, 1985.
It will be observed that up to this point in the
history of events, the applicant was not dealing
with, nor being delayed by, officials or other public
servants of the respondent's department. It appears
that the manager and acting manager at the Citi
zenship Court in Winnipeg come in for some
praise (exhibits "D" and "F" to the applicant's
third affidavit) but thus far she had experienced
only pathetic delay from the statutory services of
the Government of Canada. Of course, had it not
been for the imminence of Winchel's twenty-first
birthday, there would have been less, or perhaps
no, anxious urgency in this series of delays.
On April 16, 1985, three days before Winchel's
birthday, and "the first available date that the
C.I.C. could give" her an interview, according to
paragraph 10 of her third affidavit, the applicant
applied to sponsor her family, and she was inter
viewed by an immigration officer ("J.M.I.") who
has also sworn an affidavit filed in these proceed
ings. There is no real conflict in the respective
depositions, except that "J.M.I." swears that to
the best of his knowledge, he does not recall (par.
4) making certain representations to the applicant.
He is, also, better informed about the effective
date of an amendment to the respondent's Immi
gration Manual than is the applicant, but that does
not corrode the credibility of either deponent.
Here are selected passages from the applicant's
first affidavit concerning this crucially material
time:
6. I applied to sponsor my family at the C.I.C. in Winnipeg on
April 16, 1985 as shown by exhibit "A" to this my Affidavit.
7. Mr. ["J.M.I."], the interviewing immigration officer at the
C.I.C. appointment of April 16, 1985 gave no indication that
there would be any difficulty with the application nor did he
indicate that my brother, WINCHEL would be ineligible because
of his age.
9. My brother, WINCHEL was available at all times to attend at
the Canadian Embassy in Manila to submit his application for
landing as soon as such an application was issued to him.
[Note: The respondent's counsel objected to par. 9 as being
hearsay; but the extent of the correspondence between the
applicant and her brother among all the other documents
exhibited indicate that par. 9 is probably reliable and true.]
10. Mr. ["J.M.I."] wrote to me by letter dated April 18, 1985
indicating that my undertaking was being sent to the Canadian
Embassy in Manila. The letter is attached as exhibit "C" to
this my Affidavit. In that letter Mr. ["J.M.I."] gave no indica
tion that my brother, WINCHEL would be ineligible because of
his age.
12. ["J.M.I."] did not authorize my undertaking for sponsor
ship till April 19, 1985 as shown by exhibit "A" to this my
Affidavit.
13. It is the policy of the Respondent to deal with all family
class applications as expeditiously as possible so as not to cause
refusal of a visa due to administrative delay of the Respond
ent's own making. It is now the procedure of the Respondent to
telex the information on a sponsorship undertaking to a post
abroad, when an accompanying dependant of a family class
applicant is approaching twenty-one years of age, and to
request that application forms be forwarded to the applicant on
an urgent basis. The policy and procedure are set out in exhibit
"E" to this my Affidavit.
14. The C.I.C. in Winnipeg did not telex my sponsorship
application to the Canadian Embassy in Manila, but instead
sent it by ordinary mail. The Canadian Embassy in Manila
received my application on May 16, 1985 as shown by exhibit
"F" to this my Affidavit.
15. The Canadian Embassy in Manila telexed the C.I.C. in
Winnipeg on June 10, 1985 asking the C.I.C. in Winnipeg to
have me delete my brother, WINCHEL from my sponsorship
application on the erroneous assumption that the birth date of
my brother, WINCHEL was April 10, 1986, as shown by exhibit
"G" to this my Affidavit.
17. I refused to delete my brother, WINCHEL from my sponsor
ship application.
The immigration officer, "J.M.I.", had this to
swear concerning the crucial events, as his filed
affidavit discloses:
3. On or about April 16, 1985, I met with the Applicant and
interviewed her with respect to the proposed undertaking to
assist her family members in their Applications for Landing.
Attached hereto and marked as Exhibit "A" to this my Affida
vit are two pages of handwritten notes, dated April 17, 1985,
and prepared as a result of the meeting and interview with the
Applicant on or about April 16, 1985.
4. To the best of my knowledge, I probably overlooked the fact
that Winchel Alvero's twenty-first birthday was approaching
on April 19, 1985. To the best of my knowledge, I do not recall
making any representations to the Applicant one way or
another regarding the eligibility of her brother Winchel.
5. I have read the Affidavit of the Applicant, and with respect
to paragraph 13 thereof, it was not our policy or procedure "to
telex the information on a sponsorship undertaking to a post
abroad, when an accompanying dependant of a family class
applicant is approaching twenty-one years of age". To the best
of my knowledge, paragraph 4(c)(iii) of the Immigration
Manual, IS 2.21, was not contained in the Immigration Manual
in April, 1985. I believe that subparagraph was added to the
Immigration Manual in September, 1986. Attached hereto and
marked as Exhibit "B" to this my Affidavit is a photocopy of
IS 2.21, page 19, of the Immigration Manual issue of Septem-
ber, 1986, wherein a "+" sign is indicated in the margin which
means that such paragraph is new to the Manual as of that
issue.
The affidavit of "J.M.I." was sworn on April 15,
1987, and that of the applicant was sworn on
February 3, 1987.
It appears that the applicant's undertaking was
despatched to Manila by surface post since it took
about one month, that is, until May 16, 1985,
according to the date stamp, to wend its way
thither from Winnipeg. So it is shown in exhibit
"F" to the applicant's first affidavit.
It appears that "J.M.I." was negligent as he
virtually admitted in paragraph 4 (above) of his
affidavit. It also appears that personnel of the
respondent's department, if not also the very
respondent of that time, were negligent, lack
adaisical and entirely wanting any reasonable
sense of urgency in such matters. It was not an
isolated instance, as the Federal Court and Immi
gration Appeal Board jurisprudence reveal. The
applicant appears to be blameless in all this dismal
treatment at the hands of the government's person
nel and services right from the beginning. Counsel
for the respondent shrewdly notes that this
respondent and the department cannot be held
answerable for earlier delays of another depart
ment. The applicant was let down by the systems
established to serve her because of governmental
lethargy. To comply with the legislator's will, the
respondent's task is simply linear: to receive her
undertaking, verify and transmit it without delay
so that she could have all the time the legislator
accorded to her and others similarly situated. She
was not treated according to the legislator's will.
Indeed, it appears that if the applicant had
made her application seventeen months later, in
September, 1986, the word would have proceeded
to Manila with electronic alacrity, according to
paragraph 5 of "J.M.I." 's affidavit. But, if then,
why should her right have been aborted in April of
1985? Clearly, the respondent had become con
scious of the problem whereby applicants' rights
were being aborted and the operation of the legis
lation was being obstructed by lethargic depart
mental administration.
Jurisdiction
The respondent's counsel ' submits that this
Court is not possessed of the jurisdiction to enter
tain and adjudicate the present application for
relief against alleged maladministration. He sug
gests that exclusive jurisdiction in this sort of case
rests with the Immigration Appeal Board. Much
jurisprudence was cited on the part of both sides,
but the clear, incisive and conclusive unanimous
opinion in Bailon v. Canada (Minister of Employ
ment and Immigration), written by Hugessen J. in
the Appeal Division (A-783-85) on June 16, 1986,
sets that argument to rest, thus:
The appellant sponsored an application for landing by her
mother and her half brother, the latter being at that time just
under 21 years of age. Because of his age the half brother could
only have been admitted under section 6 of the Regulations as a
dependant of his mother who was a member of the family class;
he could not in light of subsection 4(1) of the Regulations have
himself been a member of the family class or applied for
admission as such.
In our opinion the Board rightly declined jurisdiction to hear
the appeal. The application for landing made by the appellant's
mother, the only member of the family class to apply, was not
refused; what was refused was the application for landing of the
appellant's half brother as a dependant of his mother. Section
79 of the Act makes it quite clear that a sponsor only has a
right of appeal from the refusal of an application by a member
of the family class, not from the refusal to include an alleged
dependant of such a member.
Certainly, also, invocation of the Canadian Bill
of Rights, R.S.C. 1970, Appendix III and 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.)], can lift this
case of alleged maladministration of a law of
Canada in alleged derogation of certain guaran
teed rights therein, out of a privative provision of
section 59 of the Immigration Act, 1976 [S.C.
1976-77, c. 52]. The more so is this proposition
valid where the Board has been judicially held not
to have jurisdiction in such a case as this. The
opinion of Martland J. in Prata v. Minister of
Manpower & Immigration, [1976] 1 S.C.R. 376;
(1975), 52 D.L.R. (3d) 383 may also be noted in
this regard.
The applicant complains that her right to under
take sponsorship of her family, including her
brother, who was legally her father's dependant
until April 19, 1985, was thwarted by the respond
ent's departmental maladministration. There can
be no doubt, as counsel for the respondent conced
ed, that it is the applicant's own right which is at
stake. The relevant jurisprudence is Minister of
Employment and Immigration v. Robbins, [ 1984]
1 F.C. 1104 (C.A.) (at pages 1106-1107, per Urie
J. for the Court); In re Immigration Act, 1976 and
in re Kahlon, [1985] 2 F.C. 124 (T.D.) (reversed
[1986] 3 F.C. 386 (C.A.) on other grounds); and
Rajpaul v. Canada (Minister of Employment and
Immigration), [1987] 3 F.C. 257; (1987), 10
F.T.R. 189 (T.D.)
That the alleged thwarting of the applicant's
right occurs as a result of alleged executive malad-
ministration is no impediment to her application
for relief. So held Madam Justice Wilson in Singh
et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177, at pages 195 and 196.
Citing the Supreme Court's own judgment in
Nicholson v. Haldimand-Norfolk Regional Board
of Commissioners of Police, [1979] 1 S.C.R. 311,
she wrote:
In Nicholson at p. 324, Laskin C.J. expressly adopted the
statement of Megarry J. in Bates v. Lord Hailsham, [1972] 1
W.L.R. 1373 (U.K.), at p. 1378 "that in the sphere of the
so-called quasi-judicial the rules of natural justice run, and that
in the administrative or executive field there is a general duty
of fairness". In other words, the mere classification of the
Minister's duty under s. 45 as administrative does not eliminate
the duty of fairness set out in Nicholson: see Attorney General
of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735
at p. 750 (per Estey J.); Martineau v. Matsqui Institution
Disciplinary Board, [1980] 1 S.C.R. 602 at pp. 623-24, 628-31
(per Dickson J., as he then was).
It is trite law that a validly made regulation,
passed by the Governor General in Council pursu
ant to delegated statutory authority, has the same
force of law as the statute enacted by Parliament
itself. So it is that the Immigration Regulations,
1978 [SOR/78-172], are the genuine source of the
applicant's right of sponsorship of her family,
including Winchel. Regulation 2(1) defines
"dependant" as "... any unmarried [that is, never
been married] son or daughter ... who is less than
twenty-one years of age". Regulation 4(1) confers
the applicant's right to sponsor an application for
landing made by members of the family class,
including "(c) ... [her] father, mother, ... sixty
years of age or over". Subsection 6(1) of the
Regulations [as am. by SOR/79-167, s. 2] provides
that "Where a member of the family class makes
an application for an immigrant visa, a visa officer
may issue [. .. such ...] visa to him and his
accompanying dependants if ... (b) the sponsor (i)
has given an undertaking". A photocopy of the
applicant's undertaking is exhibit "F" to her first
affidavit. Its sufficiency and regularity are not in
issue, except for the fact that it was not received at
the embassy in Manila until May 16, 1985.
Now, the legislation accords the applicant and
all others similarly situated the right to sponsor a
dependent family member such as Winchel while
he is "less than 21 years of age". She certainly did
all she could to articulate that right, but she was
thwarted when the respondent's personnel declined
to process the applicant's father's application,
including Winchel Alvero as a dependent son,
because he was "over 21 years of age at the time
the IMM8 was submitted to this Embassy"!
(Exhibit "K" to applicant's first affidavit.) Too
late—but not because of any act or omission of the
applicant—but because of the unreasonable lack
of a sense of urgency on the part of the respond
ent's personnel. Indeed, in that exhibit "K", the
second secretary (immigration) proves the point by
writing: ". Winchel was sponsored by Ms.
Alvero-Rautert and the sponsorship was author
ized on 19 April 1985; that is, on Winchel's 21st
birthday". (Emphasis added.) So much, in the
respondent's view, for the applicant's successful
efforts to take her oath of citizenship as early as
possible, and to obtain the earliest possible date for
attendance at the immigration office in Winnipeg
to complete her application and undertaking for
sponsorship. That which was miscarried here was
the respondent's wan effort consonant with the
insouciant practice of transmission of urgent
applications by slow mail.
Matters of Interpretation
At least two points of interpretation arise in
these circumstances.
The first is whether the respondent was correct
in counting the material time as that at which the
family in the Philippines made application for
landing, already sponsored, as they were, by the
applicant. In the case of Mahida v. Minister of
Employment and Immigration et al. (1987), 11
F.T.R. 150 (F.C.T.D.), another of the cases where
there was departmental delay, Mr. Justice Joyal
(following the Appeal Division in Wong v. Minis
ter of Employment and Immigration (1986), 64
N.R. 309) held as follows [at page 155]:
This would mean that depending on the particular circum
stances of a case, it would be the date of an immigration
application or the date of an undertaking of assistance which
would stop the clock.
I must find on the facts that the process of securing an
immigration visa was duly initiated when the undertaking of
assistance was filed and approved in Toronto. That process was
in due course committed to a particular official who in turn
committed it to the mail. The delays were beyond the control of
both the immigration services and the proposed immigrants.
There was no active or passive conduct by either of the parties
to break the processing and it perpetuated itself throughout.
The prior initiation date should therefore prevail to determine
the son Yusufbhai's admissibility as a dependant.
The decision of the visa officer is quashed. The respondents
are directed to refer the case of the named dependant herein
back to the visa officer to reconsider the application on the
basis that the dependant, subject to his admissibility in accord
ance with the Act and its Regulations, is not otherwise inad
missible under s. 6(1)(a) of the Immigration Regulations, 1978.
The second point is what, if any, is the effect of
the applicant starting the process in Winnipeg, to
the east of the International Date Line, for further
action in Manila, to the west of that line? Does
Parliament manifest any intention to legislate
extra-territorially in enacting subsection 25(9) of
the Interpretation Act, R.S.C. 1970, c. I-23? It
does not. Age is reckoned to be attained on the
commencement of the anniversary. Therefore it
would be unreasonable to provide a time-limited
right which can be exercised in Canada when the
time on the other side of the date line has already
elapsed. For this purpose, at least, that provision
must be interpreted to mean that Winchel was a
dependant whom the applicant had the right in
these circumstances to sponsor until the com
mencement of April 19, 1985, by Winnipeg time,
whatever the circumstances in Manila.
Now one must next determine what the relevant
legislation does not provide to diminish or thwart
the applicant's right. It does not provide that when
the sponsorship process is initiated just over 48
hours before the crucial time an immigration offi
cer can become professionally limp and delay mat
ters in defiance of the legislator's will. If the
legislation means anything it means that the appli
cant is accorded her right at all times up to the last
moment. To treat her with less than a sense of
urgency was to prejudice her by abrogating,
abridging or infringing her right as well as to
thwart the legislator's will. After all, the legisla
tion contains no provision authorizing public ser
vants to give up or to cease trying to do the
legislator's will just because the time is short. The
respondent did not plead a crushing case load. In
failing to notify the visa office in Manila of the
applicant's sponsorship by the most expeditious
means available was to abrogate and abridge the
applicant's right. The record discloses no evidence
upon which to believe that the Alveros would not
have responded to the visa office's call with any
thing less than alacrity.
The Canadian Bill of Rights
Section 1 of the Canadian Bill of Rights pro
vides for the applicant and all others:
1. ...
(b) the right ... to equality before the law and the protec
tion of the law;
Section 2 of the Bill provides among other declara
tions that
2.... no law of Canada shall be construed or applied so as
to
(b) impose or authorize the imposition of ... unusual treat
ment ... ;
The meaning of "unusual" is qualitative and not
quantitative. Thus even if every case of the immi
nent twenty-first birthday were treated with the
same negligence or official insouciance as was the
applicant's, that treatment of this applicant would
still be "unusual" according to the criterion of the
legislator's manifest intent in promulgating the
legislation, as well as the criterion of what the
legislator did not intend, discussed above.
The Court therefore finds that the applicant's
right to sponsor her family including her still
dependent brother on April 16, 1985 was abrogat
ed, abridged or infringed by the immigration offi
cer's personally negligent or officially indolent
conduct in not transmitting the applicant's spon
sorship with all deliberate speed and he thereby
imposed unusual treatment on her and denied her
the protection of the law which the legislator
intended for her and all others similarly situated.
Overlooking the initial unfavourable misreading
of Winchel's birth date, it is apparent that the
decision-maker received a much more material
error in the documentation. "J.M.I." caused the
applicant's undertaking to be dated April 19, 1985
(Winchel's twenty-first birthday) instead of April
16, 1985, the earlier date on which the applicant
did all she lawfully could do in order to give her
undertaking. In that sense her right under para
graph 2(e) of the Canadian Bill of Rights, also
could be held to have been abridged, abrogated or
infringed. Her plight is loosely analogous to that of
the applicant in Pangli v. Canada (Minister of
Employment and Immigration) (1988), 81 N.R.
216, a unanimous judgment of the Federal Court
of Appeal rendered on November 12, 1987 by Mr.
Justice Heald, with Urie and Desjardins JJ. con
curring. There, the Court held, in those circum-
stances, that a Canadian decision-maker in New
Delhi failed to afford "a fair hearing in accordance
with the principles of fundamental justice".
In the present applicant's case, it is most doubt
ful that any decision-maker who received wrong
material information, long after a crucial limita
tion date had been allowed to pass—through no
fault of the applicant (as the decision-maker could
not know)—can be said to have afforded that
mandatory fair hearing, no matter how high-mind
ed the decision-maker may be. After all, the appli
cant was not present in order to correct the errors
of fact, nor to argue the points of law, before the
decision-maker. She was, thus, also denied her
right to equal protection of the law, for denial of
the one in these circumstances is denial of the
other.
The Canadian Charter of Rights and Freedoms
The pertinent provisions of the Charter in the
circumstances of this case, are:
12. Everyone has the right not to be subjected to any cruel
and unusual treatment ....
(It is quite probable that the applicant would
consider the treatment to which she was subjected
to be "cruel", but if so the "cruelty" must surely
be subjective and not objective. That treatment
however is just as "unusual" in contemplation of
the Charter as it is in contemplation of the Bill of
Rights.)
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination ...
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect
of all matters within the authority of Parliament ...
Now, section 15 of the Charter came into force on
April 17, 1985, the day after the applicant attend
ed at the immigration office. At that time, subsec
tion 5(1) of the Regulations provided that while a
citizen could apply to sponsor parents of any age,
landed immigrants could not sponsor parents until
the latter attained the age of sixty years as pro
vided in paragraphs 4(1) (c) and (d) of the Regula
tions. The above distinction, being contrary to
section 15, was subsequently obviated with this
respondent's consent in this Court in Dhaliwal v.
Canada, (Minister of Employment and Immigra
tion) (T-105-87) pronounced by Strayer J. on
January 26, 1987, and in Hundal v. Canada (Min-
ister of Employment and Immigration)
(T-264-87) pronounced by Jerome A.C.J. on
February 16, 1987.
However the applicant could hardly be expected
to act upon subsequent jurisprudence since she is
neither a lawyer nor, presumably, clairvoyant. Still
it is now apparent that if, as a landed immigrant
she had asserted the right to sponsor her parents
and the dependent Winchel, the inevitable refusal
of such application after April 17, 1985, could
have been overcome pursuant to the Charter. The
applicant was and is caught in a web of law and
policy since held to be invalid in contemplation of
the Charter and so acknowledged by the
government.
In regard to all those whom the legislator
intended to enjoy the benefit and protection of the
family sponsorship law, it is apparent that the
applicant was not being treated equally. On and
after April 17, 1985, she was the object of dis
crimination not because of any of the particular
causes set out in subsection 15 (1) of the Charter,
but because her application was made close to the
deadline, "J.M.I." and departmental practice and
policy did not regard her application worthy of
urgent transmission in April, 1985.
Government's Responsibility
During the course of this case the respondent, on
June 3, 1986, added a new alleged reason to reject
the applicant's sponsorship of her brother Winchel.
It is found in exhibit "K" to the applicant's first
affidavit. This is, that even if the parents were
accepted to go to Canada, no humanitarian or
compassionate considerations would exist in regard
to Winchel due to the presence of other family
members remaining in the Philippines. Now that is
an overblown proposition. The true proposition in
these circumstances is: that the presence of some
of Winchel Alvero's siblings or other family mem-
bers in the Philippines is not necessarily relevant
to, and certainly does not obviate or foreclose a
decision on humanitarian and compassionate
relief. A closer, more subtle examination of
Winchel's circumstances is required than what is
expressed and reflected in the overblown proposi
tion cited above. On and from April 17, 1985, she
was also being denied equal protection of the law.
This is just another circumstance which indicates
that the applicant is being unusually treated by the
government.
Such circumstances make one wonder why the
respondent resists this application. Such circum
stances invoke the Court's jurisdiction to remedy
administrative unfairness—a modern expression of
equity—established by the Nicholson and Mar-
tineau [Martineau v. Matsqui Institution Disci
plinary Board, [1980] 1 S.C.R. 602] cases
referred to above. The applicant certainly comes
into Court with "clean hands" as is hardly disput
ed, except in one aspect.
The one aspect of the case on which the
respondent's counsel contends that the applicant is
not entitled to the remedies which she seeks is the
respondent's "unexplained delay, from June, 1985
until February, 1987, in the bringing of this
application". In fact, that period of time lapse is
abundantly explained in the record. Counsel is
really contending that the explanation is not good
enough.
During that period from about mid-June, 1985,
until the present application was instituted on
February 4, 1987, there has been considerable
correspondence between the applicant's former
solicitor and the office of the ministers who have
held the portfolio of the respondent herein. Much
of that correspondence is copied and presented in
exhibit "H" to the applicant's first affidavit.
Several other letters are copied and presented in
exhibit "D" to the applicant's second affidavit.
Now this correspondence begins in July, 1985, but
the respondent's written rejections of the Alveros'
family application for landing based on Winchel's
age are actually dated April 16, 1986, copies of
which are exhibits "I" and "J" to the applicant's
first affidavit. Full reasons for rejection are set out
in exhibit "K"dated June 3, 1986.
It is apparent that the applicant's previous
solicitor tried valiantly to gain the attention of
three successive ministers who bore the respond
ent's title and authority, but apparently in vain.
The solicitor finally resorted to registered special
delivery post but it appears that over that period of
time, and especially over the shorter period, his
letters were not received or otherwise miscarried,
or that successive ministers' aides and assistants
were negligent or simply declined to bother about
the solicitor's letters. The respondent's counsel dis
parages this activity as "the political route" which
left the applicant in a state of laches by failing to
pursue "the legal route", meaning litigation. In
truth the words "politically sensitive" appear only
in the solicitor's last desperate letter, dated Janu-
ary 9, 1987, the final item of exhibit "D" to the
applicant's second affidavit.
The respondent's counsel avers that the above
alleged delay prejudiced the respondent by creat
ing "difficulty in getting relevant material in
Manila" and "did not put the respondent on notice
that court action was contemplated" because the
previous solicitor "never hinted at litigation". That
is an ingenious and clever argument which the
Court nevertheless rejects. First of all the perfervid
correspondence emanated from a lawyer, in a
profession whose well known proclivities, if not
raison d'être, are ultimately, to litigate. Secondly
unless the ministers' offices and the department
were in a total shambles of disorganization, which
was not admitted by counsel, the lawyer's letters
ought to have had the diametrically opposite effect
from that averred by counsel. They ought normal
ly to have served as a strong signal to get the
relevant material together, if not to face litigation,
(a lively prospect which would normally leap to
mind), then at least in order to answer the lawyer's
urging of the respondent to review the case
personally.
Now it is true that one who contemplates taking
legal action and then does, ought not to stall and
delay for no good reason, for courts and other
tribunals take a dim view of such tardiness, which
may even in certain instances be fatally dis
couraged by a statutory bar. Here it does not
become the respondent to cry "delay", when it is
so apparent that the applicant's first solicitor could
not elicit, induce or even wrench a reply from any
of the respondent's three personifications.
In any event the applicant's counsel takes a
different view of the matter with which the Court,
in these particular circumstances, agrees. Since the
law itself leans against precipitating litigation
unduly, it was initially quite correct to seek first an
administrative remedy from or through the Minis
ter. The parties to any litigation should first
attempt to exhaust every means of resolving their
dispute before resorting to court action. Indeed,
once action is taken, a minister would not be
wrong to adopt the position, and usually does, that
since the matter is before the courts, the minister
declines to act. It may have taken the first solicitor
a litle too long to catch on to the fact that he was
simply not going to receive a responsive answer to
his letters, but that is such a surprising non-result,
that it does not lie in the respondent's mouth to
blame the applicant for the alleged delay. An
earnest effort to resolve differences before litiga
tion is not unreasonable. It was the respondent's
conduct which was unreasonable.
It must not be forgotten that all of this sorry
story arises against a background of governmental
delay in permitting the applicant to obtain citizen
ship in the first place, back in 1984.
Conclusions
In conclusion, the Court holds that, in the first
place, the applicant was, on the facts, deprived of
the protection of the law guaranteed by paragraph
1(b) of the Canadian Bill of Rights.
The Court holds that the applicant's right to a
fair hearing was, perhaps unwittingly, abrogated,
abridged or infringed by the decision-maker in
Manila, contrary to paragraph 2(e) of the Canadi-
an Bill of Rights.
The Court further holds that the applicant's
right to sponsor her family, including Winchel as a
dependant, was abrogated, abridged and infringed
by the respondent's personnel's negligence and
(prior at least to September, 1986) by the respond
ent's policy of official lassitude in transmitting her
sponsorship application in derogation of the legis
lation, and she was therein subjected to unusual
treatment, all contrary to paragraph 2(b) of the
Canadian Bill of Rights. This Court will right that
wrong, albeit ex post facto. Accordingly, the
Court holds that neither the Immigration Act,
1976, nor the Immigration Regulations, 1978 shall
be construed or applied so as to confirm or crystal
lize that unusual treatment in regard to the appli
cant's right as of April 16, 1985. In particular the
Regulations shall not be construed or applied to
block the applicant's family's sponsored applica
tion for landing in Canada, including Winchel
Alvero if he still wishes to be included as a depend
ant, and notwithstanding his having attained and
passed his twenty-first birthday on April 19, 1985.
So also, the applicant's right not to be subjected
to unusual treatment at the hands of the govern
ment or its officials and employees pursuant to
section 12 of the Charter, has been infringed and
denied. Such unusual treatment, after April 17,
1985, amounts also to denials of equal benefit and
equal protection of the law, prohibited by subsec
tion 15(1) of the Charter.
The Court considers it appropriate and just in
the circumstances to accord to the applicant the
very remedies which she seeks: certiorari and
mandamus. It will quash the respondent's decision
founded as it was on the negligence, lack of sense
of urgency and 1985's official lassitude of the
respondent's department prior to their belated
recognition of the problem by amending their
manual in September, 1986. The problem as stated
above resided in their thwarting the will of the
legislator by their lassitude in the face of close-to-
the-line but still timely applications, such as the
applicant's. Such departmental lassitude support
ing departmental rejection constituted unusual
treatment in contemplation of both the Bill of
Rights and the Charter.
Alternatively, the Court holds that rejection of
the Alvero family's sponsored application includ
ing Winchel Alvero as a dependant was founded
on an error of law. If the Court's decision in
Mahida v. Minister of Employment and Immi
gration (earlier cited) be correct then the "clock
stopped running" against Winchel's status of
dependant as soon as the applicant did all she
could on April 16, 1985, to launch her accepted
undertaking to sponsor and assist her family,
including Winchel who had then not attained his
twenty-first birthday. On this basis too the deci
sion to reject the family's application including
Winchel for landing must be quashed.
The possibility of restoring that application to a
proper footing, as the Court directs, cannot remain
open forever. Based on the applicant's already
accepted undertaking, the family, including
Winchel (as a dependant), if still willing and if
still unmarried, may make application any day up
to, but not later than close of business at the
Canadian visa office in Manila (or the nearest
substitute visa office, embassy or high commis
sion) on Monday, April 18, 1988. Because of the
effluxion of time the applicant's youngest sister
and dependent daughter of their parents, Wilna
Alvero would have in ordinary circumstances lost
her dependant status through no fault of hers.
Wilna attained her twenty-first birthday on June
30, 1987. If she be still willing to be included as a
dependant and still unmarried, she shall be includ
ed as a dependant on the same terms as is her
brother Winchel. The inclusion here of Wilna
Alvero is necessarily incidental to according the
applicant the full remedy which is her due in this
sorry case.
The Regulations here under consideration cry
out for procedural reform in view of the general
incidence of problems which they generate. Such
reform, being only procedural, would not frustrate
the substantive will of the legislator. It would
entail only a quick, easy and inexpensive task.
The decision complained of herein is quashed
upon the terms, conditions and directions herein
expressed. Perhaps it is wishful thinking but if the
parties could now co-operate to resolve their differ
ences, they would surely earn this Court's benedic
tion. The order will be drawn not only to be
enforced by the applicant, but also to permit the
flexibility of an alternative course, if realistic. The
applicant is entitled to receive, and the respondent
shall pay to her, full party-and-party costs after
taxation thereof, or as the parties may otherwise
agree in avoidance of taxation.
If subsequent circumstances frustrate compli
ance with the terms of the Court's order through
no fault of the applicant or her sponsored family
members prior to close of business on April 18,
1988 or, if the office be closed on April 18, on the
next day on which the embassy or visa office are
open for business, then the applicant shall have the
right peremptorily, but upon reasonable notice, to
apply to this Court for a supplementary direction
herein extending the time for compliance.
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.