A-376-81
Henry John Dolack, of the United States of
America (Plaintiff)
v.
Minister of Manpower and Immigration, in the
Government of Canada (Defendant)
Court of Appeal, Thurlow C.J., Culliton and
Cowan D.JJ.—Regina, September 16, 1982.
Immigration — Appeal from trial judgment dismissing
application for interim order requiring Minister of Manpower
and Immigration to issue appellant permit to enter Canada to
defend action under The Matrimonial Property Act — Appel
lant contends Minister's refusal to grant permit to enter for
this purpose amounted to denial of right to equality before law
as guaranteed by Canadian Bill of Rights — Appellant further
contends that Canadian Bill of Rights fetters Minister's dis
cretion by, in effect, requiring him to grant appellant permit to
enter Canada to protect property rights — Appeal dismissed
— Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970,
Appendix III], ss. 1(a),(b), 2(e) — Immigration Act, 1976, S.C.
1976-77, c. 52 — The Matrimonial Property Act, S.S. 1979, c.
M-6.1.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Minister of Manpower and Immigration v. Hardayal,
[1978] 1 S.C.R. 470.
ACTION.
COUNSEL:
D. Kovatch for plaintiff.
D. Curliss for defendant.
SOLICITORS:
Mitchell, Ching, Saskatoon, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW C.J.: We do not need to hear you,
Mr. Curliss.
This is an appeal from a judgment of the Trial
Division [[1982] 1 F.C. 396] dismissing the appel
lant's application for an interim order command
ing the Minister of Manpower and Immigration to
issue the appellant a permit to enter Canada for
the purpose of defending an action instituted by
his wife pursuant to The Matrimonial Property
Act, S.S. 1979, c. M-6.1 of Saskatchewan.
The appellant contends that, in refusing him a
permit to enter Canada, the Minister denied him
the opportunity of appearing personally and
defending litigation and thus denied him his right
to equality before the law as required by the
Canadian Bill of Rights S.C. 1960, c. 44 [R.S.C.
1970, Appendix III].
It was conceded in the course of argument that
there had been no procedural unfairness on the
part of the Minister but the submission was made
that because the appellant had property rights in
Canada which were involved in the litigation
before the courts in Saskatchewan, the Minister's
discretion was fettered and that, in effect, because
of the Canadian Bill of Rights a permit to come
into Canada to pursue and protect his property
rights before the courts could not be refused.
We do not think the Minister's discretion is
fettered as suggested. (See the comments by
Spence J. in Minister of Manpower and Immigra
tion v. Hardayal, [1978] 1 S.C.R. 470 at page
478.)
Nothing in the Canadian Bill of Rights express
ly gives anyone a right to enter Canada and while
we do not adopt the broad statement of the learned
Trial Judge that paragraphs 1(a) and (b) and 2(e)
of the Canadian Bill of Rights apply only to
persons living in Canada and not to persons living
out of Canada, we do not think that the rights
defined by the Canadian Bill of Rights include
any implied right to come into Canada for the
purpose of securing the protection of property in
Canada.
In the appeal the appellant asks this Court to
direct the Minister to grant a permit. The only
right this Court might have, in proper circum
stances, would be to require the Minister to carry
out his statutory duty if he had not done so. No
right exists to direct that he do so in a particular
way. In refusing the permit the Minister exercised
his discretion and in so doing discharged his duty
and this Court has no power to interfere with that
decision.
The appeal is dismissed with costs.
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.