89-T-694
89-T-699
Emili Mikaeli and Davinder Singh (Applicants)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: MIKAELI v. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, Muldoon J.—Winnipeg, October
23; Ottawa, November 1, 1989.
Judicial review — Applications to stay, enjoin or prohibit
credible and trustworthy hearings by screening panel — As
applications not "an appeal as such", Federal Court Act s. 29
no bar — Criteria in Metropolitan Stores met — Panel having
declined to consider constitutional challenges to Immigration
Act — Relief granted to subsist till motions for leave to raise
constitutional arguments adjudicated; if leave granted till
constitutional arguments adjudicated.
Immigration — Refugee status — Whether credible and
trustworthy basis for claims — Screening panel declining to
consider constitutional challenges to Immigration Act —
Applications to stay panel hearing pending application for
leave to move for certiorari — Tribunal erred in refusing to
consider constitutional arguments — Contempt of court for
panel to continue hearing though order not yet signed.
These were motions for leave and applications under section
18 of the Federal Court Act for a stay of credible and trust
worthy hearings by the screening panel with respect to refugee
claims until the applicants could seek leave under section 83.1
of An Act to amend the Immigration Act, 1976 and to amend
other Acts in consequence thereof, to move for certiorari to
quash the decision of the panel not to consider any constitution
al challenges to the Immigration Act, 1976 (under which the
panel conducts its hearings).
Held, the applications should be allowed.
The criteria for relief set out in Attorney General of Manito-
ba v. Metropolitan Stores (MTS) Ltd., have been met. The
duty to consider constitutional arguments now devolves upon
the Court. The present proceedings being in the nature of
judicial review do not constitute "an appeal as such" and
section 29 of the Federal Court Act is not a bar.
The stay of the credible basis hearing will subsist until the
motions for leave to raise the constitutional arguments have
been adjudicated and, should leave be granted, until the consti
tutional arguments have been adjudicated. The interlocutory
order is binding immediately even though not yet in writing or
signed and to continue the hearing would constitute contempt
of court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to amend the Immigration Act, 1976 and to
amend other Acts in consequence thereof, S.C. 1988, c.
35, s. 83.1.
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., 1985, c. F-7, ss. 18, 28, 29 (as
am. by S.C. 1988, c. 61,s. 12).
Federal Court Immigration Rules, SOR/89-26, R. 20.
Unemployment Insurance Act, 1971, S.C. 1970-71-72,
c. 48.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Attorney General of Manitoba v. Metropolitan Stores
(MTS) Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R.
(4th) 321; [1987] 3 W.W.R. 1; 73 N.R. 341; Tétreault-
Gadoury v. Canada (Canada Employment and Immigra
tion Commission), [1989] 2 F.C. 245; (1988), 53 D.L.R.
(4th) 384; 88 N.R. 6 (C.A.).
APPLIED:
Baxter Travenol Laboratories of Canada Ltd. et al. v.
Cutter (Canada), Ltd., [1983] 2 S.C.R. 388, (1983), 2
D.L.R. (4th) 621; 75 C.P.R. (2nd) 1; 50 N.R. 1; Cuddy
Chicks Ltd. v. Labour Relations Board (Ont.) et al.
(1989), 35 O.A.C. 94 (C.A.).
REFERRED TO:
Russo v. Minister of Manpower and Immigration, [1977]
1 F.C. 325; (1976), 70 D.L.R. (3d) 118 (T.D.); Singh v.
Minister of Employment and Immigration, [1985] 1
S.C.R 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R.
137; 14 C.R.R. 13; 58 N.R. 1; Baxter Travenol
Laboratories of Canada Ltd. et al. v. Cutter Ltd. (1980),
52 C.P.R. (2d) 163 (F.C.T.D.).
COUNSEL:
David Matas for applicants.
Roger Lafrenière for respondent.
SOLICITORS:
David Matas, Winnipeg, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are reasons for order delivered
orally in English by
MULDOON J.: Here are the Court's reasons in
the two cases which are before the Court today of
Emili Mikaeli and Davinder Singh.
Canadians live in a different constitutional
world today from that which existed in 1977 when
Mr. Justice Sweet formulated his reasons in Russo
v. Minister of Manpower and Immigration, [1977]
1 F.C. 325; (1976), 70 D.L.R. (3d) 118 (T.D.).
Then the Canadian Bill of Rights [R.S.C., 1985,
Appendix III] was in a somewhat moribund state
before it was revived by the equal division of the
Supreme Court of Canada in the celebrated Singh
case [Singh v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177; (1985), 17
D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R.
13; 58 N.R. 1]. Then there was no entrenched
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] which was,
as now, the supreme law of Canada to which all
other laws are subordinate. Then there had been
no decision of the Supreme Court of Canada as
there now is in Attorney General of Manitoba v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R.
110; (1987), 38 D.L.R. (4th) 321; [1987] 3
W.W.R. 1; 73 W.R. 341.
In both of the two cited cases in the Supreme
Court of Canada Mr. Justice Beetz with the con
currence of his colleagues has changed the course
of constitutional jurisprudence. The two applicants
in their respective cases seek to stay or enjoin or
prohibit the screening panel composed of a depart
mental adjudicator and a member of the Immigra
tion and Refugee Determination Board from pro
ceeding further with their respective hearings to
determine if there be a credible and trustworthy
basis for their refugee claims. The stay, injunction
or prohibition which they seek is, if granted, to
endure only until they can seek leave of this Court
under section 83.1 of An Act to amend the Immi
gration Act, 1976 and to amend other Acts in
consequence thereof, S.C. 1988, c. 35.
The leave they would then seek will be to move
the Court for certiorari to quash the decision of
the screening panel declining to consider any con
stitutional challenges to the provisions of the
Immigration Act under which the panel conducts
its hearings on the grounds set out in the respective
notices of motion if leave be then granted.
These proceedings are necessarily strewn with
applications for leave in accordance with the
recently enacted section 83.1 already mentioned.
That provision, if valid, is mandatory, and it
applies to any application for relief under either
section 18 or section 28 of the Federal Court Act
[R.S.C., 1985, c. F-7].
The Court has pondered and considers itself
bound by the decision of Mr. Justice Beetz in the
Metropolitan Stores case. Also a binding author
ity on this Court is the judgment of the Appeal
Division in Tétreault-Gadoury v. Canada (Canada
Employment and Immigration Commission),
[1989] 2 F.C. 245; (1988), 53 D.L.R. (4th) 384;
88 N.R. 6. The latter is a unanimous decision
rendered by Mr. Justice Lacombe with whom Mr.
Justice Hugessen concurred without comment and
with whom Madam Justice Desjardins concurred
entirely but with some additional commentary.
Quite apposite to the cases at bar are the passages
reported as follows in the Federal Court Reports at
pages 257-258:
It is hard to see that a board of referees should allow parties
the right to present their "representations concerning any
matter before [the board]", yet that such an obligation should
cease as soon as the argument raises the invalidity of a provi
sion of the Act or Regulations in light of the requirements of
the Charter. The Charter must be equally available to all
litigants, those who must defend themselves in penal tribunals
before which they appear as well as those who have actions to
bring in the civil or administrative tribunals against acts of the
government or when legislation invades their rights and free
doms. So long as the procedure in such tribunals presents no
obstacle to their doing so, the litigants should be able to assert
the rights secured by the Charter in the natural forum to which
they can apply.
At page 261:
The Board of Referees accordingly erred in refusing to
consider the constitutional arguments submitted to it by the
applicant. That being so, the Court must consider and dispose
of them.
These cited passages apply in the present cases
even although the screening panel is not a board of
referees acting under the Unemployment Insur
ance Act, 1971 [S.C. 1970-71-72, c. 48] because
these passages and the judgment in which they
reside enunciated a principle of law. So also and to
the like effect does the decision of the Ontario
Court of Appeal in Cuddy Chicks Ltd. v. Labour
Relations Board [(Ont.) et al. (1989), 35 O.A.C.
94 (C.A.)], recently reviewed in the Lawyers
Weekly, volume 9, No. 20, [at page 1] of Friday,
September 29, 1989. So far that's the best citation
which we have.
Now because the respective counsel for the par
ties have agreed to limit the scope of today's
proceedings to the application for leave to bring an
application under paragraph 18(b) of the Federal
Court Act for a stay or injunction or prohibition,
that is to say relief in the nature of the relief which
can be obtained under paragraph 18(a), the Court
cannot now in the words of Lacombe J. "consider
and dispose" of the constitutional arguments even
though that function now belongs to the Court and
not to the panel according to the same Judge
writing in Tétreault-Gadoury v. Canada (Canada
Employment and Immigration Commission)
[supra]. These proceedings being, as noted, strewn
with necessary leave applications, the applicants
will now have to seek leave to be permitted to
induce the Court to consider and dispose of those
constitutional arguments.
On all of the criteria enunciated by Beetz J. in
the Metropolitan Stores case, the favourable dis
position goes to the applicants. The criteria were
thoroughly discussed by counsel and it needs little
more than to note that in each instance the Court's
appreciation of the issues or criteria is that they
support the applicant's case for a stay, injunction
or prohibition. All those criteria do and each crite
rion does.
Whatever the punctiliously technical merits of
the respondent's counsel's objection to the style of
cause, not naming Mr. Moffatt as a respondent,
the Court will not let such an omission stand in the
way of the remedies which are merited here. Mr.
Moffatt, by depositing the respective screening
panel's records under Rule 20 [Federal Court
Immigration Rules, SOR/89-26] is obviously fixed
with knowledge of these proceedings in any event.
If the relief calls upon the Minister, her servants
and officials to obey an order, then it will bind the
senior immigration officer who is to fix a date for
the resumed hearings and no resumption of the
hearings will be permitted during the effective
operation of the order.
The floodgates argument of the respondent
would seem to be inapplicable since the window of
opportunity in which these proceedings are
brought is narrow. Not all screening panels have
declined to address their competence to decide the
constitutional arguments. Mr. Moffatt alone has in
the Mikaeli case, and he and his collegue have so
declined in the Singh case. It would seem that
given the 72-hour limit after which a claimant
may be removed, it may be that the opportunity
will exist only when the credible basis hearing has
been adjourned, as here.
Since the duty to consider the constitutional
argument now devolves on the Court as Lacombe
J. held, the full array of constitutional arguments
described in the notices of motion may convenient
ly be included in the next application for leave in
avoidance of multiplicity of proceedings and leave
applications.
Leave is accordingly granted to apply for the
stay of the screening panel's credible basis hearing.
The stay or injunction or prohibition in the nature
of the relief which may be sought pursuant to
paragraph 18(a) of the Federal Court Act is
imposed to endure until the applicant's motions for
leave to raise the constitutional arguments be
adjudicated; and if leave be granted, to endure
until those very constitutional arguments be
adjudicated whereupon any extension of the stay
will be in the discretion of this Court or the Appeal
Division in accordance with law. Costs in the cause
to be determined by the Court in subsequent
proceedings.
I have only one other thing to say and that is
this. It will not be possible to have a signed order
to this effect available today. However, we are all
aware of the Baxter Travenol case [Baxter Trave-
nol Laboratories of Canada Ltd. et al. v. Cutter
(Canada), Ltd. (1980), 52 C.P.R. (2d) 163
(F.C.T.D.)] in which Mr. Justice Gibson of this
Court indicated his disposition to grant an injunc
tion, and upon the advice of counsel the defendant
did acts which would be forbidden under the
injunction. The Supreme Court of Canada [Baxter
Travenol Laboratories of Canada Ltd. et al. v.
Cutter (Canada), Ltd., [1983] 2 S.C.R. 388;
(1983), 2 D.L.R. (4th) 621; 75 C.P.R. (2nd) 1; 50
N.R. 1] said one's knowledge of the injunction is
imparted to counsel. The order binds even though
not written and signed. I say that so that Mr.
Moffatt and his colleague may know that in regard
to the Mikaeli hearing which is scheduled to be
continued tomorrow. That should be clear. Even if
a signed order is not put in the Minister's hands,
the senior immigration officer's hands or in Mr.
Moffatt's hands by tomorrow, knowledge of that is
hereby imparted to counsel for the respondent and
it would be contempt of Court according to the
Supreme Court of Canada to continue with the
hearing before the order is signed.
I say that not to sound threatening or wicked or
authoritarian or punitive, but only to give ample
warning that that is the law and that is the law
decided by the Supreme Court of Canada. The
case is Baxter Travenol and I do not have the
exact citation with me here at this moment.
Gentlemen, I thank you for the high degree of
professionalism in your arguments on both sides, I
may say. They were certainly not easy to resolve,
but I think that I must resolve them under the
terms of the Tétreault-Gadoury decision which is
under appeal, and if it is to be reversed then I shall
stand reversed such is the excitement of a hierar
chical judicial system with stare decisis in place.
The following is the addendum to the reason's
for order rendered in English by
MULDOON J.: This is an addendum to the
Court's reasons for disposition of the applicant's
motion for leave, and a stay, expressed orally in
Court from the bench on Monday, October 23,
1989.
In resistance against the applicant's motions, the
respondent's counsel invoked section 29 [as am. by
S.C. 1988, c. 61, s. 12] of the Federal Court Act,
R.S.C., 1985, c. F-7, which runs:
29. Notwithstanding sections 18 and 28, where provision is
expressly made by an Act of Parliament for an appeal as such
to the Federal Court, to the Supreme Court, to the Governor in
Council or to the Treasury Board from a decision or order of a
federal board, commission or other tribunal made by or in the
course of proceedings before that board, commission or tri
bunal, that decision or order is not, to the extent that it may be
so appealed, subject to review or to be restrained, prohibited,
removed, set aside or otherwise dealt with, except to the extent
and in the manner provided for in that Act.
The respondent's counsel did, or could, not cite
any provisions for an appeal as such which have
the effect of barring these present proceedings
which are taken pursuant to section 18 of the Act.
These present proceedings are certainly not "an
appeal as such", for it is a judicial review. So,
indeed, is an application pursuant to section 28 of
the Act. (It may be noted that the French lan
guage version of section 29 does not express the
emphasis which resides in the words "as such".
This may well be so because "un appel" in French
means precisely and always "an appeal as such")
It therefore must be held that section 29 does
not bar the present proceedings, which is just as
well, because judicial review proceedings can be
taken with greater alacrity than can an appeal as
such, and urgency, such as was demonstrated here,
can be much more reasonably accommodated by
rapid response than can be accomplished upon an
appeal as such.
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.