Winston Sylvester Harding (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett CJ., Thurlow J. and
Sweet D.J.—Toronto, October 27, 1972.
Immigration—Immigration Appeal Board—Deportation
order—Dismissal of appeal from—Application to re-open to
hear new evidence—Whether humanitarian reason for
reversing decision—Judicial review.
JUDICIAL review.
D. H. Kayfetz for applicant.
E. A. Bowie for respondent.
JACKETT CJ. (orally)—This is an application
under section 28 of the Federal Court Act to set
aside a judgment of the Immigration Appeal
Board refusing to re-open the hearing of the
applicant's appeal under the Immigration
Appeal Board Act, R.S. 1970 1 , c I-3.
The Board had a discretion to re-open that
hearing to hear further evidence concerning the
exercise of its powers under section 15 of the
Act to stay or quash the deportation order on
compassionate or humanitarian considerations.
The application to the Board was based on a
proposal to adduce evidence which, it was con
tended, would show that the diagnosis of mental
disease made when the applicant was in a
mental hospital in 1969 was made in error.
On my reading of the Board's reasons for
dismissing the motion for a new hearing, the
Board erred in treating the motion as a motion
for a new hearing as to the validity of the
deportation order rather than for a new hearing
with reference to the exercise of the section 15
powers.
However, notwithstanding this error in their
consideration of the matter, it does not seem to
me that this is a case for setting aside the
Board's decision and ordering a new hearing of
the application. Whatever the purpose of the
new hearing, in my view, the applicant was not
entitled to obtain one unless, in the opinion of
the Board, the new evidence to be adduced
would probably, if not almost conclusively,
establish facts that would change the result of
the previous hearing. I cannot find any error in
law in the conclusion of the Board that the
proposed evidence would do no more than
reveal "a degree of conflict of opinion between
medical practitioners" concerning the correct
ness of the 1969 diagnosis. This is not sufficient
to warrant a new hearing.
I express no opinion as to whether the fact
that the new evidence was designed to establish
would have warranted consideration by the
Board of an exercise of their powers under
section 15.
I am of the opinion that the application
should be dismissed.
* * *
THURLOW J.—I am of the same opinion.
To my mind the reasons of the Board show
that the Board was not impressed with the new
evidence proposed by the applicant and in par
ticular did not regard it as sufficient to show
that there was anything wrong with the original
diagnosis of the applicant's illness. Such a con
clusion was one of fact that was clearly open to
the Board and in this situation I do not think it
can be said that the Board's disposition of the
applicant's motion proceeded from any error of
law on their part even though their reasons do
not clearly show an appreciation that the
motion was to reopen and review their conclu
sion with respect to the exercise of discretion
under section 15 of the Immigration Appeal
Board Act rather than with respect to the validi
ty of the deportation order.
I would dismiss the motion.
* * *
SWEET D.J. concurred.
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