T-1004-81
Kantilal Parmar (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Dubé J.—Halifax, February 26;
Ottawa, March 3, 1981.
Prerogative writs — Certiorari, declaratory relief — Immi
gration — Applicant's visitor status extended to a Saturday
Further extension sought by applicant on that day, but Immi
gration Office closed — Decision by immigration officer, on
following Monday, denying applicant's request on ground that
he was illegally present in Canada as of that day — Departure
notice issued by Adjudicator upon inquiry — Application for
certiorari to certify records and departure notice and declara
tion that applicant was entitled to apply for extension —
Applicant arguing that s \ 25 of the Interpretation Act pre
served his status until Monday — Motion denied — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 26(1)(c), 27(2)(i) —
Interpretation Act, R.S.C. 1970, c. I-23, ss. 25, 28 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28 —
Federal Court Rules 3, 400, 600(4).
MOTION.
COUNSEL:
Gordon H. Davidson, Q.C. for applicant.
Martin Ward for respondent.
SOLICITORS:
Gordon H. Davidson, Q.C., Dartmouth, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
Dust J.: This is an application for a writ of
certiorari requesting an adjudicator of the Immi
gration Department to certify the records relating
to the applicant and the departure notice, issued
February 16, 1981, for review by the Court; for an
order quashing said departure notice; and for
declaratory relief to the effect that the applicant
was lawfully present in Canada on October 20,
1980 and entitled to apply for an extension of his
visitor's status.
The applicant is a citizen of India who was
admitted to Canada on April 26, 1980 at Halifax
International Airport and granted visitor status.
He came to visit his brother, now a Canadian
citizen in Dartmouth, Nova Scotia. The status was
extended from August 20 to September 19, 1980;
then, from that date to October 18, 1980.
The applicant says that he went to the Immigra
tion Office on that date, which was a Saturday.
The office being closed, he returned on the follow
ing Monday for the purpose of obtaining a further
extension. The immigration officer informed him
that his time had expired and that he was illegally
present in Canada.
An inquiry was convened on December 22, 1980
before the Adjudicator. Counsel for the applicant
appeared and moved to dismiss the inquiry on the
ground that section 25 of the Interpretation Act'
preserved the visitor's status until the following
Monday. The Adjudicator denied the motion and
issued the departure notice, effective March 9,
1981.
Counsel for the Crown challenges the jurisdic
tion of this Court to entertain the instant motion.
He rightly points out that the Federal Court of
Appeal under section 28 of the Federal Court Act'
has exclusive jurisdiction to hear and determine an
application to review an order made on a judicial
or quasi-judicial basis by a federal board. Under
section 18 the Trial Division does have jurisdiction
to grant declaratory relief from such a board, but
Rules 600(4) and 400 of the Federal Court provide
that proceedings for a declaratory relief must be
commenced by filing a statement of claim. How
ever, if I felt that the present motion had merit,
ways and means could be found to convert it into a
statement of claim.
In my view, the application has no merit.
Under paragraphs 26(1)(c) and 27(2)(i) of the
Immigration Act, 1976 3 the immigration officer
' R.S.C. 1970, c. I-23.
2 R.S.C. 1970 (2nd Supp.), c. 10, as amended by S.C.
1973-74, c. 17, s. 8; S.C. 1974-75-76, c. 18.
3 S.C. 1976-77, c. 52.
had no alternative but to decide that the applicant
on October 20, 1980 was a person in Canada,
other than a Canadian citizen or a permanent
resident, who entered Canada as a visitor and
remains therein after he has ceased to be a visitor.
Any other decision by the officer or by the
Adjudicator would have been illegal and contrary
to the Act. The Interpretation Act is of no assist
ance to the applicant as it is an Act respecting the
interpretation of statutes, not the interpretation of
documents issued by departmental officials. More
over, section 25 deals with limitations which expire
upon a holiday and "holiday", as defined under
section 28, does not include Saturdays.
It is true that Rule 3 of the Rules of Court adds
"and any Saturday" to its incorporation of section
28 of the Interpretation Act, but the Rules apply
to proceedings before the Federal Court, not to
notices or other documents issued by Federal
departments.
At the hearing I discussed with counsel what
impact the "duty to act fairly" principle—emanat-
ing from recent Supreme Court of Canada deci-
sions—might have on the difficult situation faced
by the applicant. My conclusion is that the princi
ple cannot apply in this instance since any renewal
by the officer of the applicant's permit on that
date would have been contrary to law. The appli
cant, of course, could have applied for his renewal
before the Saturday in question.
Under the circumstances the motion is denied
with costs.
ORDER
The motion is denied with costs.
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