Canada ( Solicitor General ) v. Bubla
IMM-839-93
Gibson J.
25/8/93
8 pp.
Application for judicial review of Immigration and Refugee Board, Appeal Division decision removal order against respondent invalid -- Adjudicator finding conviction under Austrian Narcotics Act equivalent to conviction under Narcotic Control Act -- Holding appellant permanent resident who, if immigrant, would not be granted landing by reason of being member of inadmissible class described in s. 19(1)(c) -- Application for leave and judicial review filed late -- S. 82.1(5) providing extended time for filing, serving application for leave may be allowed for special reasons -- Application for leave could not have been granted unless Judge found special reasons -- Action of granting leave only makes sense if found special reasons -- Court now properly seized of matter -- Legislation amending Immigration Act (S.C. 1992, c. 49) coming into force February 1, 1993 -- S. 109 providing its provisions shall apply to every application, proceeding or matter pending immediately before coming into force of provision -- S. 110 providing any inquiry or hearing under any provision of Immigration Act amended or repealed by new law commenced before coming into force of amendment or repeal shall continue to determination as though provision under which commenced not amended or repealed -- Appeal Division erred in holding s. 109, not s. 110 applied to hearing before it since separate from inquiry by adjudicator, and hearing not commencing until February 2, 1993 -- S. 109 general rule regarding application of provisions of new law to applications, proceedings, matters pending or in progress under Immigration Act and regulations on coming into force of new law -- Specifically subject to ss. 110 to 120 -- S. 110 referring specifically to inquiry or hearing -- Inquiry by adjudicator commenced before coming into force of amendment or repeal -- Not completed in sense had come to determination contemplated by s. 110 because adjudicator's decision appealed and subject to all possible results flowing from any decision Appeal Division authorized to make -- S. 110 applying to inquiry herein -- Appeal Division's interpretation not producing sensible result -- S. 112 speaking only to terms of removal order eventually made once determination arrived at in accordance with s. 110 -- Question of whether s. 109 applies in these circumstances certified -- Second question of whether "special reasons" within s. 82.1(5) in absence of motion for leave to file late application for judicial review in support of which special reasons alleged -- An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 39, ss. 109, 110, 112 -- Immigration Act, R.S.C., 1985, c. I-2, s. 82.1 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19).