A-869-91
Ashford Mahabir (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: MAHABIR V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (CA.)
Court of Appeal, Mahoney, Desjardins and Linden
JJ.A.—Toronto, October 8; Ottawa, October 17,
1991.
Immigration — Practice — S. 46 Immigration Act credible
evidence hearing — Application to tribunal, under Charter s.
24, for declaration relevant statutory provisions rendered inop
erative by Constitution Act, s. 52 — Argument rejected — Judi
cial review application under Federal Court Act, s. 28 —
Applicant ordered to show cause why application ought not be
quashed as made without leave (Immigration Act, s. 82.1(1))
— Whether leave required where impugned decision is refusal
to declare inoperative empowering legislation or to invoke
constitutional exception in particular circumstances —
Whether "final decision" subject to s. 28 review — Although
Charter invoked, Court cannot ignore Immigration Act, s. 82.1
modifying right to judicial review.
Judicial review — Applications to review — Refugee tribu
nal's rejection of Charter argument legislation authorizing
credible evidence hearing rendered inoperative by Constitution
Act, s. 52 — Whether "final decision" subject to s. 28 review
— Whether Immigration Act s. 82.1 requirement of seeking
leave for judicial review application applicable where
impugned decision refusal to declare empowering legislation
inoperative — Court unable to ignore s. 82.1 modification of
right to judicial review — Review of case law on what is "deci-
sion" within contemplation of s. 28.
Federal Court Jurisdiction — Appeal Division — S. 28
application to review refugee tribunal decision rejecting argu
ment Immigration Act provisions authorizing credible evidence
hearing rendered inoperative by Constitution Act, s. 52
quashed for want of jurisdiction — Absence of leave required
to commence proceeding — Not a "final decision" subject to s.
28 review.
Constitutional law — Enforcement — Argument that Federal
Court Act, s. 28 application for judicial review of refugee tri
bunal decision being based on Charters. 24, leave requirement
in Immigration Act to be disregarded —Applicant s contention
logical fallacy — Having sought Charter remedy by proceed
ing authorized by Immigration Act, applicant bound by condi
tion precedent that leave necessary — S. 24 giving remedial
power where matter properly before Court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C., 1985, c. L-2, s. 22.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 24.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]
s. 52.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 46, 82.1 (as
enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C.
1990, c. 8, s. 53).
CASES JUDICIALLY CONSIDERED
APPLIED:
Brennan v. The Queen, [1984] 2 F.C. 799; (1985), 85
CLLC 17,006; 57 N.R. 116 (C.A.); Armadale Communi
cations Ltd. v. Adjudicator (Immigration Act), [1991] 3
F.C. 242 (C.A.).
CONSIDERED:
Bains v. Canada (Minister of Employment & Immigra
tion) (1990), 47 Admin. L.R. 317; 8 1mm. L.R. (2d) 165;
109 N.R. 239 (F.C.A.); Ferrow v. Minister of Employment
and Immigration, [1983] 1 F.C. 679; (1983), 144 D.L.R.
(3d) 364; [1983] 3 W.W.R. 289; 46 N.R. 299 (C.A.); In re
Anti-dumping Act and in re Danmor Shoe Co. Ltd., [1974]
1 F.C. 22; (1974), 1 N.R. 422 (C.A.).
REFERRED TO:
Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29
D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 21
C.R.R. 76; 67 N.R. 241; 16 O.A.C. 81.
COUNSEL:
Barbara L. Jackman and Gladys MacPherson
for applicant.
Donald A. Macintosh and Deirdre A. Rice for
respondent.
SOLICITORS:
Jackman, Joseph & Associates, Toronto, for
applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
MAHONEY J.A.: The applicant was ordered to show
cause why his section 28 application ought not be
quashed because it was made without the leave
required by subsection 82.1(1) of the Immigration
Act' having been first sought and obtained and
because it is directed at a decision not subject of
review under section 28 of the Federal Court Act. 2
That decision was made by a tribunal consisting of an
adjudicator and a member of the Convention Refugee
Determination Division of the Immigration and Refu
gee Board conducting a proceeding under section 46
of the Immigration Act to determine whether there
was any credible or trustworthy evidence on which
the applicant might be found by the Division to be a
Convention refugee. The applicant applied to the tri
bunal, pursuant to subsection 24(1) 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.) [R.S.C., 1985, Appendix II,
No. 44]], for a declaration that, either generally or in
the particular circumstances, the provisions of the
Immigration Act authorizing it to conduct the pro
ceeding in issue were rendered inoperative by section
52 of the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. l l (U.K.) [R.S.C., 1985,
Appendix II, No. 44]]. The tribunal held that they
I R.S.C., 1985, c. 1-2, as enacted by R.S.C., 1985 (4th
Supp.), c. 28, s. 19; S.C. 1990, c. 8, s. 53.
2 R.S.C., 1985, c. F-7.
were not rendered inoperative and then proceeded to
determine that there was no such credible or trust
worthy evidence.
Four other matters were argued together with this
and a fifth serially to it. In each, the section 28
originating notice had been filed without leave hav
ing first been obtained and in each it had been
decided, in the course of the proceedings below, that
section 52 did not operate to preclude a continuation
of those proceedings. In Sankar v. M.E.I., file
A-857-91, a show cause order had also been issued
and the proceedings below were before a tribunal. In
Santana v. M.E.I., file A-761-91, a show cause order
had been made but the section 28 application con
cerned the decision of an adjudicator alone con
ducting an inquiry under section 44 of the Transi
tional Provisions of the Act. In Savicoglu v. M.E.I.,
file A-747-91 and Ramnath et al. v. M.E.I., file A-
765-91, the proceedings below were conducted under
section 46 of the Act but the matters were before us
on motions by the respondent to quash, not show
cause orders. Finally, in the case heard serially, file
A-696-91, which was before us on a show cause
order and is subject of a protective order, the pro
ceedings were before the Convention Refugee Deter
mination Division itself under section 69.1 of the Act
and have not been concluded, as have the others, by a
decision as to the right of that applicant to remain in
Canada.
None of those differences are material to the issues
now required to be dealt with. The jurisdiction of the
decision-making body to make the section 52 deci
sion is not presently in issue. In each case, the section
52 decision was sought because of alleged delay in
processing a refugee claim and the consequent
alleged violation of rights guaranteed by sections 7
and 12 of the Charter. The issues are:
1. Does the requirement of section 82.1 of the Immi
gration Act apply to require an applicant to seek and
obtain leave to commence a proceeding under section
28 of the Federal Court Act when the decision sought
to be set aside is either a refusal to declare inopera
tive the legislative provisions from which the deci-
sion-making body derives its authority or a refusal to
invoke a constitutional exception in the particular cir
cumstances; and
2. Is such a decision a "final decision" and thus sub
ject to review under section 28?
In Bains v. Canada (Minister of Employment &
Immigration), 3 the Court held that the requirement of
section 83.1 of the Act that leave to appeal be
obtained did not impair rights guaranteed refugee
claimants under either section 7 or 15 of the Charter.
The applicant, however, argues that the fact that the
decision sought to be set aside is a determination of
Charter guaranteed rights, not rights arising under the
Immigration Act, distinguishes the present case from
Bains. He argues that while the 28 application con
cerns the Immigration Act it is not brought under it;
rather it is brought under section 24 of the Charter
and the leave requirement of the Immigration Act
cannot impede it.
In my opinion there is a transparent fallacy in the
basic assumption on which the applicant's argument
is premised. The remedy sought is certainly about the
Immigration Act but, equally, it is sought under the
Immigration Act because it is section 82.1 of that
Act 4 as well as section 28 of the Federal Court Act
that authorizes the proceeding the applicant has pur
ported to initiate. Section 82.1 expressly modifies the
right to seek judicial review otherwise provided by
section 28. This Court can no more ignore section
82.1 in dealing with an application under section 28
seeking to set aside a decision or order made under
3 (1990), 47 Admin. L.R. 317 (F.C.A.).
4 82.1 (1) An application for judicial review under the Fede
ral Court Act with respect to any decision or order made, or
any matter arising, under this Act or the rules or regulations
thereunder may be commenced only with leave of a judge of
the Federal Court—Trial Division or Federal Court of Appeal,
as the case may be.
the Immigration Act than, for example, it can ignore
the privative provisions of subsection 22(1) of the
Canada Labour Codes in dealing with a section 28
application seeking to set aside a decision under Part
I of the Code. Having chosen to seek his Charter rem
edy by a proceeding authorized by the Immigration
Act rather than, for example, suing for a declaration
of those rights, the applicant is bound by the condi
tion precedent that he obtain leave to so proceed. It is
well established that neither subsection 24(1) of the
Charter nor subsection 52(1) of the Constitution Act,
1982 of themselves give jurisdiction to a Court. 6
Rather subsection 24(1) gives a remedial power, and
subsection 52(1) a declaratory power, to be exercised
in disposing of matters properly before the Court. A
decision or order, whether it concerns the Constitu
tion or not, is made under the Immigration Act when
it is made by a tribunal that derives its authority to
make decisions or orders from that Act. In the
absence of leave obtained, this Court is without juris
diction to entertain a section 28 application in respect
of a decision or order made under the Immigration
Act.
The remaining issue is whether the decision that
section 52 did not render inoperative the provisions
of the Immigration Act under which the particular tri
bunal was proceeding was a "decision" within the
contemplation of section 28 at all. The authorities to
that time were extensively canvassed in Ferrow v.
Minister of Employment and Immigration.? Thurlow
C.J., delivering the judgment of the Court, adopted,
at page 687, an earlier statement of the law.
... that what is meant by "decision or order" in [subsection
28(1) of] the. Federal Court Act is the ultimate decision or
order taken or made by the tribunal under its statute.
The applicant sees, in more recent decisions, a depar
ture from that definition. He is right.
5 R.S.C., 1985, c. L-2.
6 Mills v. The Queen, [1986] 1 S.C.R. 863.
7 [1983] 1 F.C. 679 (C.A.).
He refers to Armadale Communications Ltd. v.
Adjudicator (Immigration Act), 8 which dealt with the
decision of an adjudicator to exclude members of the
press and public who wished to be present at an
inquiry. The applicants there were representatives of
the media. The decision to exclude them was finally
determinative of all their substantive rights in so far
as the inquiry was concerned even though it was not
the ultimate decision authorized to be made by the
adjudicator.
He also refers to Brennan v. The Queen, 9 where, in
dissent on the point, Thurlow C.J., reiterated the con
clusion he had reached in Ferrow. That case was con
cerned with the decision of a Review Tribunal consti
tuted under the Canadian Human Rights Act, 10 which
had reversed the finding of a Tribunal that the
employer of the person found to have committed a
discriminatory act was not, itself, responsible for that
act. The Tribunal and Review Tribunal had dealt only
with the liability of the discriminating employee and
his employer and not with the complainant's entitle
ment to damages.
MacGuigan J.A., accepted, as the "best analysis of
the relevant policy considerations in play" [at page
832], the following statement by Jackett C.J., in In re
Anti-dumping Act and in re Danmor Shoe Co. Ltd.l i
In my view, the object of sections 18 and 28 of the Federal
Court Act is to provide a speedy and effective judicial supervi
sion of the work of federal boards, commissions and other
tribunals with a minimum of interference with the work of
those tribunals. Applying section 11 of the Interpretation Act,
with that object in mind, to the question raised by these section
28 applications, it must be recognized that the lack of a right to
have the Court review the position taken by a tribunal as to its
jurisdiction or as to some procedural matter, at an early stage
in a hearing, may well result, in some cases, in expensive hear
ings being abortive. On the other hand, a right, vested in a
party who is reluctant to have the tribunal finish its job, to have
the Court review separately each position taken, or ruling
made, by a tribunal in the course of a long hearing would, in
s [1991] 3 F.C. 242 (C.A.).
9 [1984] 2 F.C. 799 (C.A.).
10 S.C. 1976-77, c. 33.
11 [ 1974] 1 F.C. 22 (C.A.), at p. 34.
effect, be a right vested in such a party to frustrate the work of
the tribunal.
MacGuigan J.A., concluded on this issue, at page
833,
I therefore hold that the partial decision by the Review Tribu
nal here, since it is clearly intended to be a final decision on
the issues considered, is a reviewable decision under subsec
tion 28(1) of the Federal Court Act. This is not to say that any
intermediate decision of a tribunal qualifies for review under
subsection 28(1), but rather that a clearly final decision on all
issues short only of the remedy or relief should so qualify,
since by such a decision the substantive question before the
tribunal is finally disposed of.
Pratte J.A., while he did not subscribe to the reasons
of MacGuigan J.A., did agree that the decision was
reviewable under section 28.
A decision is reviewable under section 28 not only,
as held by the earlier jurisprudence, if it is the deci
sion the tribunal has been mandated by Parliament to
make, but also if it is a final decision that disposes of
a substantive question before the tribunal. There may
be more than one substantive question before a tribu
nal and, as in Brennan, the tribunal may so conduct
its proceedings that it finally decides one of them to
the exclusion of one or more others. That is not what
the present tribunal did.
A constitutional question, inherently important as
it is, is not necessarily a substantive question before a
given tribunal and, in my opinion, the constitutional
question was not among the substantive questions
before the tribunal here. It went to the right of the
tribunal to conduct its proceedings, not to any sub
stantive right of the applicant that was in issue. All it
finally decided was that the proceeding would con
tinue. Since the decision of the tribunal as to the con
stitutional question was not a final decision within
the contemplation of subsection 28(1), the decision is
not subject to section 28 review.
I would quash the section 28 application in each of
these cases for want of jurisdiction in the Court to
entertain it by reason both of the absence of leave to
commence the proceeding and the decision sought to
be set aside not being a decision subject of review
under section 28. Except as to file A-696-91, I would
make the order quashing the application without
prejudice to the right of each applicant, if so advised,
to seek an extension of time to apply for leave to
bring a section 28 application in respect of the final
decision of the tribunal. I would further order that a
copy of these reasons be filed in each of the other
matters above referred to and serve as the reasons for
judgment therein.
DESJARDINS J.A.: I concur.
LINDEN J.A.: 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.