A-1125-87
The Minister of Employment and Immigration
(Appellant)
v.
Mohinder Singh Lidder (Respondent)
INDEXED AS.' CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. UDDER (C.A.)
Court of Appeal, Marceau, Desjardins and Décary
JJ.A.—Ottawa, January 15 and March 10, 1992.
Immigration — Appeal under Immigration Act, s. 84 from
Immigration Appeal Board's decision allowing respondent's
appeal under Act, s. 79(2) — Respondent sponsoring nephew's
application for landing — Application refused by Minister as
nephew 18 years old when filed — Date of application for
landing, not date assistance undertaking filed, relevant —
Whether estoppel, doctrine of legitimate expectations applica
ble — Requirement as to age mandatory and absent of discre
tionary power — Board without jurisdiction to hear sponsor's
appeal.
Estoppel — Application for sponsored landing refused by
Minister as applicant 18 years old when received — Whether
doctrine of estoppel applicable — Estoppel by representation
defined, recognized as principle of law and equity — Estoppel
cannot interfere with proper administration of law — Require
ment as to age mandatory and absent of discretionary power
— Only properly filed application can be sponsored — Inuni-
gration Appeal Board without jurisdiction to hear sponsor's
appeal.
This was an appeal pursuant to section 84 of the Immigra
tion Act from a decision of the Immigration Appeal Board
allowing the respondent's appeal under subsection 79(2) of the
Act. As Canadian citizen, the respondent submitted an under
taking of assistance (family class) in October 1982 to sponsor
his orphaned nephew who was seventeen years old at the time.
After having filed that undertaking, the respondent was told by
a representative of the Minister of Employment and Immigra
tion Canada that he had nothing else to do. Moreover, he was
not told that he had to obtain a certificate that the provincial
child welfare authority did not object to the respondent taking
care of his orphaned nephew. He later realized that such certif
icate could no longer be obtained since his nephew had turned
eighteen. By letter dated October 8, 1985, the respondent was
informed that his nephew's application had been refused
because the latter was not a member of the family class as
defined by paragraph 4(1)(e) of the Immigration Regulations,
1978, due to the fact that he was eighteen years of age when
his application was received and that a no objection certificate
had not been obtained. The Immigration Appeal Board allowed
the appeal from the Minister's decision pursuant to paragragh
77(3)(b) of the Act, applying the doctrine of estoppel in hold
ing that the Minister was prevented from refusing the neph
ew's application on the grounds that it was filed after he had
reached the age of eighteen. The issue upon this appeal was
whether the doctrine of estoppel or that of legitimate expecta
tions could be invoked to prevent the Minister from refusing
the nephew's application for landing.
Held, the appeal should be allowed.
Per Desjardins J.A.: Subsection 77(1) of the Immigration
Act makes it clear that sponsorship cannot exist without an
application for landing. It is not the date of the sponsorship
application but that of the application for landing which is rele
vant in determining whether a person is a member of the fam
ily class. There are different types of estoppel, the branch of
estoppel at issue herein being estoppel by representation. This
type of estoppel, originally viewed as a principle of equity, is
now recognized as a principle of both law and equity. The rep
resentations had been made to the sponsor, not to the nephew.
But more importantly, the doctrine of estoppel cannot interfere
with the proper administration of the law. The requirement as
to age is mandatory and absent of any discretionary power.
As to whether the doctrine of legitimate expectations could
apply to this case, it is true that the second letter sent to the
nephew could be construed as an offer by the Minister to pro
cess the nephew's application, notwithstanding his age. How
ever, the doctrine of legitimate expectations is procedural only
and does not create substantive rights. The Minister could not
be deemed to have acted in contravention of his statutory duty.
The application for landing not being made by a member of
the family class, the Immigration Appeal Board was without
jurisdiction to hear the sponsor's appeal.
Per Marceau J.A.: Even if the finding of the Board, that
there had been representation or conduct amounting to a repre
sentation intended to induce a course of conduct, were to be
accepted, the reasoning of the Board was legally unsound. The
doctrine of estoppel could not be invoked to preclude the exer
cise of a statutory duty or to confer a statutorily defined status
on a person who does not fall within the statutory definition.
The related doctrine of "reasonable or legitimate expectation",
which suffers from the same limitation restricting the doctrine
of estoppel, was also inapplicable. A public authority may be
bound by its undertakings as to the procedure it will follow,
but in no case can it place itself in conflict with its duty and
forego the requirements of the law.
Nothing could turn on the date that the undertaking of assis
tance was filed since it has been held that the effective date of
a sponsored application has to be the date that the application
itself was filed. The wording of the legislation makes it clear
that only a properly filed application can be sponsored.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 77(1),(3) (as am.
by R.S.C., 1985 (2nd Supp.), c. 10, s. 6; idem (4th
Supp.), c. 28, s. 33), 83 (as am. idem, s. 19).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 79(2) (as
am. by S.C. 1986, c. 13, s. 6), 84.
Immigration Regulations, 1978, SOR/78-172, ss. 4(1)(e)
(as am. by SOR/84-140, s. 1), 6(1)(c) (as am. by
SOR/85-225, s. 4; SOR/91-157, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Reference re Canada Assistance Plan (B.C.), [1991] 2
S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6
W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; O'Grady v.
Whyte, [1983] 1 F.C. 719; (1982), 138 D.L.R. (3d) 167;
42 N.R. 608 (C.A.).
CONSIDERED:
Bendahmane v. Canada (Minister of Employment and
Immigration), [1989] 3 F.C. 16; (1989), 61 D.L.R. (4th)
313; 26 F.T.R. 122 (note); 8 Imm. L.R. (2d) 20; 95 N.R.
385 (C.A.).
REFERRED TO:
Granger v. Canada Employment and Immigration Com
mission, [1986] 3 F.C. 70; (1986), 29 D.L.R. (4th) 501; 69
N.R. 212 (C.A.); affd [1989] 1 S.C.R. 141; (1989), 91
N.R. 63; Old St. Boniface Residents Assn. Inc. v. Winni-
peg (City), [1990] 3 S.C.R. 1170; (1990), 75 D.L.R. (4th)
385; [1991] 2 W.W.R. 145; 2 M.P.L.R. (2d) 217; 69 Man.
R. (2d) 134; 46 Admin. L.R. 161; 116 N.R. 46.
AUTHORS CITED
Halsbury's Laws of England, 4th ed., vol. 16, London:
Butterworths, 1976.
APPEAL from a decision of the Immigration
Appeal Board, (1987), 3 Imm. L.R. (2d) 284 (I.A.B.),
allowing the respondent's appeal under subsection
79(2) of the Immigration Act. Appeal allowed.
COUNSEL:
Donald A. Macintosh for appellant.
Robin G. LeFevre for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appel
lant.
Lette, McTaggart, Blais, Martin, Ottawa, for
respondent.
The following are the reasons for judgment ren
dered in English by
MARCEAU J.A.: This case cannot but stir up some
sympathy. As explained by Madam Justice Desjar-
dins, the nephew's application for landing was
rejected on the ground that, at the moment of filing,
he was a few months too old to meet the family class
definition; and it seems that the sole reason for the
duly sponsored would-be immigrant's late filing was
that, of the two application forms sent him by offi
cials of the Canadian High Commission in New
Delhi, only the second had reached him and that was
10 days after his eighteenth birthday. The result is no
doubt harsh and regrettable, but I think, like my col
league, that it was inevitable and the Immigration
Appeal Board erred in trying to avoid it.
The Board attempted to rely on the doctrine of
estoppel. On the evidence submitted to it, the Board
found that the respondent, the sponsoring uncle,
"[a]cting upon the immigration officer's representa
tion to the effect that there was nothing else for him
to do ... omitted, to his detriment, to take the neces
sary steps to ensure that the application was filed in
time") From that finding, the Board concluded that
the Minister was estopped from refusing the applica
tion for the sole reason that it was filed after the
nephew had reached the age of eighteen years.
Even if we accept the finding of the Board that
there was representation here or conduct amounting
to a representation intended to induce a course of
conduct—a finding with which I would have diffi
culty agreeing—it is clear to me, as it is to my coi -
1 (1987), 3 Imm. L.R. (2d) 284 (I.A.B.), at p. 287.
league, that the reasoning of the Board was legally
unsound. The doctrine of estoppel cannot be invoked
to preclude the exercise of a statutory duty—here, the
duty of the officer to deal with the application as it
was presented—or to confer a statutorily defined sta
tus on a person who clearly does not fall within the
statutory definition. Indeed, common sense would
dictate that one cannot fail to apply the law due to the
misstatement, the negligence or the simple misrepre
sentation of a government worker.
It was suggested in the course of the argument that,
if the doctrine of estoppel could not apply, maybe the
related doctrine of "reasonable or legitimate expecta
tion" could. The suggestion was to no avail because
this doctrine suffers from the same limitation that
restricts the doctrine of estoppel. A public authority
may be bound by its undertakings as to the procedure
it will follow, but in no case can it place itself in con
flict with its duty and forego the requirements of the
law. As was repeated by Sopinka J. recently in writ
ing the judgment of the Supreme Court in Reference
re Canada Assistance Plan (B.C.), [1991] 2 S.C.R.
525, at pages 557-558:
There is no support in Canadian or English cases for the
position that the doctrine of legitimate expectations can create
substantive rights. It is a part of the rules of procedural fairness
which can govern administrative bodies. Where it is applica
ble, it can create a right to make representations or to be con
sulted. It does not fetter the decision following the representa
tions or consultation.
I thought for a moment that a successful approach
could be based on the date of filing of the uncle's
undertaking of assistance, October 25, 1982, since
the nephew was then only seventeen and, therefore,
still met the family class definition. It was an
approach that appeared, at first, logically attractive in
that the undertaking of assistance is a pre-condition
to the actual application and is also a significant indi
cation of intent. I soon realized, however, that this
door was closed. The Court has already decided that
the effective date of a sponsored application has to be
the date of filing of the application itself (O'Grady v.
Whyte, [1983] 1 F.C. 719 (C.A.)), a conclusion which
was, in retrospect, inevitable. The wording of the leg
islation makes it clear in many provisions, notably
subsection 77(1) of the Act [Immigration Act, R.S.C.,
1985, c. I-2.] and paragraph 4(1)(e), 2 of the Regula
tions [Immigration Regulations, 1978, SOR/78-172
(as am. by SOR/84-140, s. 1)] that only a properly
filed application can be sponsored. Thus, only a duly
filed application can give legal meaning and exis
tence to an undertaking of assistance.
So, in the end, I agree with Madam Justice Desjar-
dins and would dispose of the appeal as she suggests.
DÉCARY J.A.: I concur.
* * *
The following are the reasons for judgment ren
dered in English by
DESJARDINS J.A.: This appeal, brought pursuant to
section 84 of the Immigration Act, 1976 3 (the "Act"),
pertains to a decision of the Immigration Appeal
Board (the "Board") dated July 15, 1987, in which
2 These provisions read as follows:
77. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigra
tion officer or a visa officer, as the case may be, may refuse
to approve the application on the grounds that
(a) the person who sponsored the application does not
meet the requirements of the regulations respecting per
sons who sponsor applications for landing, or
(b) the member of the family class does not meet the
requirements of this Act or the regulations,
and the person who sponsored the application shall be infor
med of the reasons for the refusal.
4. (1) Subject to subsections (2) and (3), every Canadian
citizen and every permanent resident may, if he is residing
in Canada and is at least eighteen years of age, sponsor an
application for landing made
(e) by any brother, sister, nephew, niece, grandson or
granddaughter of his who is an orphan, under eighteen
years of age and unmarried;
3 S.C. 1976-77, c. 52 (now section 83 of the Immigration
Act, R.S.C., 1985, c. I-2 [as am. by R.S.C., 1985 (4th Supp.), c.
28, s. 19]).
the Board allowed the respondent's appeal under sub
section 79(2) [as am. by S.C. 1986, c. 13, s. 6] of the
Act . 4
The respondent, a Canadian citizen, promised his
dying sister that he would take care of her children
upon her death, which occurred in 1982. He submit
ted an undertaking of assistance (family class) on
October 25, 1982 to sponsor his now orphaned
nephew who was living in India. 5 The respondent
had been financially supporting his nephew since the
time of his mother's death. At the time of the respon
dent's submission of the undertaking of assistance,
his nephew was seventeen years old.
Once the respondent had filed his undertaking of
assistance, a representative of the Minister of
Employment and Immigration Canada (the "Minis-
ter") told him "Your part is finished. It's up to the
Delhi office, they have to contact the other party". 6
The representative also told the respondent that the
Minister would be sending all the documents to New
Delhi and that the New Delhi office would be in
touch with his nephew.?
The Minister sent a first letter dated November 17,
1982 to the respondent's nephew. This letter was
apparently never received by the nephew. It had been
improperly addressed in that it did not state the name
of the nephew's father. No fault by the government
authorities is however alleged. It would appear that
the incomplete address was taken from the sponsor
4 S.C. 1976-77, c. 52 (now subsection 77(3) of the Immigra
tion Act, R.S.C., 1985, c. 1-2 [as am. by R.S.C., 1985 (2nd
Supp.), c. 10, s. 6; idem (4th Supp.), c. 28, s. 33]):
77....
(3) A Canadian citizen or permanent resident who has
sponsored an application for landing that is refused pursuant
to subsection (I) may appeal to the Appeal Division on
either or both of the following grounds:
(a) on any ground of appeal that involves a question of
law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or huma
nitarian considerations that warrant the granting of special
relief.
5 A.B., at p. 12.
6 A.B., at p. 47.
7 Ibid.
ship application filed by the respondent himself. 8 A
second letter dated July 15, 1983, this time properly
addressed, was received by the nephew. The letter
instructed him to complete an enclosed application
for permanent residence (the "application") and to
forward certain documents. By the time the nephew
received this second letter, he was already eighteen
years old.
On or about July 28, 1983, the respondent's
nephew submitted his application to the Canadian
High Commission in New Delhi. 9 He was inter
viewed by an immigration officer on November 24,
1983. His birth certificate was not received by the
Minister until July 9, 1984, and the process of docu
mentation verification was not completed until Feb-
ruary 21, 1985. On March 11, 1985, the Minister
inquired into whether a no objection certificate had
been filed by the respondent in order to show that the
child welfare authority of the relevant province had
no objection to the respondent taking care of his
orphaned nephew. The respondent had never been
told by the Minister that he needed to obtain such a
certificate. The Minister was informed that a no
objection certificate could no longer be obtained
since the respondent's nephew had turned eighteen.
By letter dated October 8, 1985, the respondent
was informed that his nephew's application had been
refused. 10 The grounds for the refusal were that the
nephew was not a member of the family class as
defined by paragraph 4(1)(e) of the Immigration Reg
ulations, I978 11 (the "Regulations") due to the fact
that he was eighteen years of age when his applica
tion was received and due to the fact that, contrary to
paragraph 6(1)(c) [as am. by SOR/85-225, s. 4;
SOR/91-157, s. 1] of the Regulations, a no objection
certificate had not been obtained from the relevant
provincial child welfare authorities. The very same
day, the respondent appealed the Minister's decision
to the Immigration Appeal Board.
The Board applied the doctrine of estoppel and
thereby held that the Minister was prevented from
refusing the nephew's application on the grounds that
it was filed after he had reached the age of eigh-
R A.B., at p. 56.
y A.B., at p. 4.
10 A.B., at p. 25.
11 SOR/78-172, as am. by SOR/84-140, s. 1.
teen. 12 The Board furthermore allowed the appeal in
equity pursuant to paragraph 77(3)(b) of the Act."
At issue, in the instant case, is whether the doctrine
of estoppel or, perhaps, the doctrine of legitimate
expectations may be invoked to prevent the Minister
from refusing the nephew's application for landing
notwithstanding the fact that the nephew was eigh
teen years of age at the time of the submission of his
application.
According to the appellant, the doctrine of estop-
pel cannot be applied in order to preclude the exer
cise of a statutory duty nor to confer a statutorily
defined status on a person who does not fall within a
statutory definition. Since the immigration officer, in
the instant case, was under a statutory duty pursuant
to section 77 of the Act to make an initial determina
tion as to whether the nephew was a member, of the
family class, and since the nephew was clearly not a
member of the family class, as defined by paragraph
4(1)(e) of the Regulations, the immigration officer
had no other alternative but to refuse the nephew's
application for landing. The doctrine of estoppel can
not be applied to preclude the valid exercise of the
immigration officer's statutory duty. Hence, the
appellant contends that since the nephew was not a
member of the family class, the Board was without
jurisdiction to hear the respondent's appeal.
In the alternative, the appellant submits that if the
doctrine of estoppel may be invoked to preclude the
refusal of an application for landing, it is not applica
ble given the facts of the instant case. There was no
evidence of any representation or promise made to
the respondent's nephew with respect to the family
class, nor was there any evidence of reliance on the
part of the nephew as a result of the statements made
by the immigration officer to the respondent. The
essential conditions for the application of the doctrine
of estoppel are therefore not met in the case at bar.
The respondent argues that the doctrine of estoppel
is applicable. That doctrine may be invoked, in order
to preclude public authorities from , relying upon tech
nicalities contained in legislation when they have
12 A.B., at pp. 207-208.
13 A.B., at p. 208.
breached a statutory duty. The Minister had a duty to
advise the respondent that he had experienced diffi
culties in communicating with his nephew. Since he
breached his duty towards the respondent, he was
precluded from relying upon technicalities contained
in the Regulations in order to determine that the
nephew was not a member of the family class. The
respondent finally contends that the decision of the
Board on the basis of estoppel was in furtherance of
its jurisdiction to render a decision on the basis of
compassionate and humanitarian grounds.
Subsection 77(1) of the Act makes it clear that
sponsorship cannot exist without an application for
landing. The date of the application for landing is the
relevant date for determining whether a person is a
member of the family class and not the date of the
sponsorship application. 14
The doctrine of estoppel is defined as: t 5
... a disability whereby a party is precluded from alleging or
proving in legal proceedings that a fact is otherwise than it has
been made to appear by the matter giving rise to that disability.
There are four types of estoppel: estoppel by mat
ter of record, estoppel by deed, estoppel by represen
tation and promissory estoppel. 16 The branch of
estoppel that is at issue, in the instant case, is estop-
pel by representation.
Although estoppel by representation was originally
viewed as a principle of equity, it is now recognized
as equally a principle of law and equity. 17 Estoppel
by representation has been defined in the following
terms: 18
Where a person has by words or conduct made to another a
clear and unequivocal representation of fact, either with knowl
edge of its falsehood or with the intention that it should be
acted upon, or has so conducted himself that another would, as
a reasonable man, understand that a certain representation of
fact was intended to be acted on, and that the other has acted,
on the representation and thereby altered his position to his
14 O'Grady v. Whyte, [1983] 1 F.C. 719 (CA.).
15 Halsbury's Laws of England, 4th ed., vol. 16 (London:
Butterworths, 1976), at p. 1008.
16 Ibid., at p. 1008.
17 Ibid, at p. 1068.
18 Ibid., at p. 1010.
prejudice, an estoppel arises against the party who made the
representation, and he is not allowed to aver that the fact is
otherwise than he represented it to be. [Emphasis added.]
According to the above definition, in order for the
doctrine of estoppel by representation to apply, there
must be the following elements:
— a representation of fact made with the intention
that it be acted upon or that a reasonable person
would assume that it was intended to be acted
upon;
— that the representee acted upon the representa
tion;
— that the representee altered his position in reli
ance upon the representation and thereby suf
fered a prejudice.
The representations, in the case at bar, were made
to the sponsor that he need not worry, and not to the
nephew. It is difficult, in the absence of any evi
dence, to assume that the sponsor would have done
something to alert his nephew. But, more impor
tantly, the doctrine of estoppel cannot interfere with
the proper administration of the law.t 9
Subsection 77(1) of the Immigration Act provides
the grounds upon which sponsored applications for
landing may be refused:
77. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigration
officer or a visa officer, as the case may be, may refuse to
approve the application on the grounds that
(a) the person who sponsored the application does not meet
the requirements of the regulations respecting persons who
sponsor applications for landing, or
(b) the member of the family class does not meet the
requirements of this Act or the regulations,
and the person who sponsored the application shall be
informed of the reasons for the refusal. [Emphasis added.]
The definition of a "nephew" is provided in the
family class definition described in paragraph 4(1)(e)
of the Immigration Regulations, 1978 in the follow
ing terms:
19 Granger v. Canada Employment and Immigration Com
mission, [1986] 3 F.C. 70 (C.A.); affd [1989] 1 S.C.R. 141.
4. (1) ... every Canadian citizen and every permanent resi
dent may, if he is residing in Canada and is at least eighteen
years of age, sponsor an application for landing made
(e) by any brother, sister, nephew, niece, grandson or grand
daughter of his who is an orphan, under eighteen years of
age and unmarried; [Emphasis added.]
The requirement as to age is certainly mandatory
and absent of any discretionary power.
I have considered whether the doctrine of legiti
mate expectations may apply to this case on the basis
that, at the time the second letter was sent to the
nephew, the Delhi office already knew that the
nephew had attained his eighteen years of age, as this
was evident from the undertaking of assistance, and
still pursued the matter, raising therefore some
"expectations" that the application could proceed. In
Bendahmane v. Canada (Minister of Employment and
Immigration), 20 Hugessen J.A., expressing a majority
view, was able to find that the Minister's letter, there
in question, did not conflict with his statutory author
ity. In the case at bar, however, the difficulty with the
idea that the authorities' letter could be construed as
an offer by the Minister to process the nephew's
application, notwithstanding his age, stems from the
provisions of the Regulations themselves. The doc
trine of legitimate expectations is procedural only and
does not create substantive rights. 21 The Minister
cannot be deemed to have acted in contravention of
his statutory duty.
The application for landing not being made by a
member of the family class, the Immigration Appeal
Board was without jurisdiction to hear the sponsor's
appeal.
I would allow the appeal, I would set aside the
decision of the Immigration Appeal Board dated July
15, 1987, and I would confirm the refusal of the Min
ister dated October 8, 1985.
I would, pursuant to section 84 of the Immigration
Act, declare that all costs of, and incident to this
20 [ 1989] 3 F.C. 16 (C.A.).
21 Old St. Boniface Residents Assn. Inc. v. Winnipeg (City),
[1990] 3 S.C.R. 1170 at p. 1204; Reference re Canada Assis
tance Plan (B.C.), [1991] 2 S.C.R. 525, at pp. 557-558.
appeal are to be paid by Her Majesty on a solicitor
and client basis.
DÉCARY J.A.: I concur.
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.