A-188-83
Edward Fat Law (Plaintiff) (Appellant)
v.
Solicitor General of Canada and Minister of
Employment and Immigration (Defendants)
(Respondents)
Court of Appeal, Ryan, Hugessen and Stone JJ.—
Toronto, April 5; Ottawa, May 18, 1984.
Immigration — Jurisdiction of Immigration Appeal Board
— Whether exclusive jurisdiction in Board, pursuant to Immi
gration Act, 1976, s. 59, to deal with questions re validity of s.
83 certificates obliging Board to dismiss appeal on grounds of
national interest and whether privative provisions of s. 59 oust
jurisdiction of Trial Division — As certificate different from
removal order, Board's jurisdiction re s. 83 certificates not
derived from s. 59 alone, therefore jurisdiction not exclusive
and not covered by s. 59 privative provisions — Immigration
Act, 1976, S.C. 1976-77, c. 52, ss. 59, 72, 83, 84 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18(1) — Immi
gration Appeal Board Act, R.S.C. 1970, c. 1-3, s. 21.
Constitutional law — Charter of Rights — Legal rights —
Immigration — Whether certificate issued pursuant to s. 83 of
Immigration Act, 1976, obliging Immigration Appeal Board to
dismiss appeal on grounds of national interest, contrary to
Charter s. 7 — Pre-Charter Supreme Court of Canada deci
sion in Praia v. Minister of Manpower & Immigration not
determinative of argument Immigration Act s. 83 contrary to
Charter — Issue should be considered by Board on hearing of
appeal — Allegation appellant denied duty of fairness raising
issue whether such rights subsumed by Charter s. 7 — Issue
should be put before Board — If Charter inapplicable, remedy
available under Federal Court Act s. 18(1); if applicable,
under Immigration Act s. 84 — Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 7, 24,
52(1).
In the course of an appeal under paragraph 72(1)(b) of the
Immigration Act, 1976 against a removal order made against
the appellant, the respondents filed a certificate pursuant to
section 83 of the Act, in effect requiring the Board to dismiss
the appeal on grounds of national interest. The appellant
sought to attack the certificate in the Trial Division alleging,
essentially, that in the filing of the certificate, the respondents
had breached the duty of fairness owed to the plaintiff and that
section 83 of the Act was contrary to the Charter.
This is an appeal from the judgment of the Trial Division
striking out the plaintiffs statement of claim and dismissing
the action. The Trial Judge held that subsection 59(1) of the
Act gave the Immigration Appeal Board exclusive jurisdiction
to deal with all questions of law relating to the removal order
appealed from and that he therefore was without jurisdiction to
hear the action. The main question of law is whether in view of
the adoption of the Charter and of the judicial interpretation of
the duty of fairness, the pre-Charter decision of the Supreme
Court of Canada in Prata, where issues similar to the ones
raised by the appellant were settled, still applied.
Held, the appeal should be allowed, the relevant paragraphs
of the statement of claim struck out and the plaintiffs action
stayed pending the Board's decision in the appeal.
Per Stone J. (Ryan J. concurring): Since the question of
whether the certificate was not validly issued pursuant to
section 83 of the Act does not arise in relation to the making of
a removal order as such, the privative provisions of section 59
giving the Board sole and exclusive jurisdiction do not apply.
However, the Board does have jurisdiction to decide whether
section 83 is inconsistent with section 7 of the Charter and
whether the certificate issued pursuant to section 83 is there
fore of no effect. The Supreme Court of Canada decision in
Prata cannot be regarded as determinative of the issue. And
pending the disposition of that issue, the action should be
stayed.
The allegation of denial of fairness raises the question of
whether the rights flowing from the application of the doctrine
of fairness have been subsumed by section 7 of the Charter, and
the appellant should have the opportunity of making that
argument before the Board. Depending on the Board's rulings
on the above-mentioned issues, remedies will be available in the
Trial Division under subsection 18(1) of the Federal Court Act
or in this Court pursuant to section 84 of the Immigration Act,
1976.
Per Hugessen J.: There are sufficient differences between the
situation in Prata and that which prevails here to preclude the
striking out of the claim on the grounds that it discloses no
arguable case.
On the question of jurisdiction, the Supreme Court of
Canada decision in Pringle et al. v. Fraser is authority for the
proposition that the Board's exclusive jurisdiction extends to
questions concerning the limits of its own jurisdiction. On that
question, the Prata decision can be distinguished. That the
Board also has jurisdiction to find the certificate invalid (but
not to make a formal declaration of invalidity) is a corollary to
its appellate jurisdiction under section 72 of the Act. However,
since questions relating to the validity, scope and effect of a
section 83 certificate are not questions that arise in relation to
the making of a removal order, then the jurisdiction to deal
with such questions does not derive from section 59 alone. Such
jurisdiction is therefore not exclusive and is not covered by that
section's privative provisions so as to oust the jurisdiction of the
Trial Division. Since the decision below was based solely on the
finding that the Board's jurisdiction was exclusive, it follows
that the appeal must be allowed and the decision set aside. The
action, however, should be stayed pending the Board's disposi
tion of the appeal before it.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Prata v. Minister of Manpower & Immigration, [1976] 1
S.C.R. 376.
REFERRED TO:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [ 1979] 1 S.C.R. 311; Pringle et
al. v. Fraser, [1972] S.C.R. 821.
COUNSEL:
Paul D. Copeland for plaintiff (appellant).
Brian R. Evernden for defendants (respond-
ents).
SOLICITORS:
Copeland, Liss, Toronto, for plaintiff (appel-
lant).
Deputy Attorney General of Canada for
defendants (respondents).
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal from a judg
ment of the Trial Division [[1983] 2 F.C. 181]
striking out the plaintiff's statement of claim and
dismissing the action with costs.
By his action, plaintiff had sought declaratory
relief which would, in essence, have nullified the
effect of a certificate issued by the respondent
ministers and filed with the Immigration Appeal
Board pursuant to section 83 of the Immigration
Act, 1976 [S.C. 1976-77, c. 52]. The effect of such
a certificate is to oblige the Board to dismiss the
appeal which the plaintiff had taken under section
72 of the Act. Briefly stated, the grounds asserted
in support of plaintiff's action were that in issuing
the certificate the respondents had breached the
duty of fairness owed to plaintiff and that, in any
event, section 83 was contrary to the provisions of
section 7 of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)].
The issues raised by the plaintiff's action are
very similar to those which were decided by the
Supreme Court of Canada in the case of Prata v.
Minister of Manpower & Immigration, [1976] 1
S.C.R. 376. However, they are not identical, for,
at the time that Prata was decided, the jurispru-
dential development of an administrative duty of
fairness was still in its infancy in this country and
the Charter of Rights, of course, did not even
exist. It was for this reason that the Trial Judge
refused to strike out the statement of claim on the
basis that the Prata decision doomed the action to
failure. He said [at pages 186 and 187]:
It would be a wrong exercise of discretion summarily to deny
the plaintiff the opportunity to have the courts reconsider Prata
in light of the Charter. It may, as well, otherwise be ripe for
reconsideration in light of the rapid evolution of the law. The
action should not be dismissed on the ground that the statement
of claim discloses no reasonable cause of action.
While I would not want to be taken as subscrib
ing to the proposition that any plaintiff who wishes
to relitigate a point which has been conclusively
settled by the Supreme Court should be permitted
to do so, I would agree that there are sufficient
differences between the situation in Prata and that
which prevails here to preclude the striking out of
the claim on the grounds that it discloses no
arguable case.
The Trial Judge's decision to strike out the
statement of claim is based upon his view that the
questions raised by the plaintiff's action fall within
the exclusive jurisdiction of the Immigration
Appeal Board. Basing himself on section 59 of the
Immigration Act, 1976, he found that the Board
had authority to deal with the question of duty of
fairness. He also found that the Board was a
"court of competent jurisdiction" within the mean
ing of section 24 of the Charter for the purposes of
dealing with the argument based on section 7 of
the Charter. The latter finding was simply the
logical corollary of the former, and the underlying
issue is whether the Board is competent to deal
with questions relating to the validity of a section
83 certificate.
The Immigration Appeal Board is a court of
record. By section 59 of the Immigration Act,
1976, it is given
59. (1) ... sole and exclusive jurisdiction to hear and deter
mine all questions of law and fact, including questions of
jurisdiction, that may arise in relation to the making of a
removal order ....
While it might be tempting to say that the Board's
exclusive jurisdiction cannot extend to questions
concerning the limits of its own jurisdiction, since
that is solely the attribute of a superior court, to do
so would be to fly in the face of the decision of the
Supreme Court in Pringle et al. v. Fraser, [1972]
S.C.R. 821. In that case, Laskin J. [as he then
was], speaking for the Court, held [at page 826]
that words identical to those now found in section
59 were
... adequate not only to endow the Board with the stated
authority but to exclude any other court or tribunal from
entertaining any type of proceedings, be they by way of certio-
rari or otherwise, in relation to the matters so confided exclu
sively to the Board.
In seeking to restrict the scope of section 59 as
interpreted by the Pringle case, appellant points to
the following passage from the reasons of Mart-
land J., who spoke for the Court in the Prata case
[at page 382]:
I should further point out that the Board in the present case,
upon the filing of the certificate, had no option, in view of the
wording of s. 21, save to rule that it could not deal with the
appellant's request for relief under s. 15 in the way in which it
did. I do not see how a statutory board, with a defined
jurisdiction, would have any authority to declare invalid the
certificate which had been filed with it. Control of the exercise
of administrative powers, where it exists, does not rest with a
statutory board, in the absence of express statutory power
conferred upon it. [Emphasis added.]
With respect, it seems to me that that passage
must be read in its context and, in particular, in
the light of the wording of the former section 21 of
the Immigration Appeal Board Act (R.S.C. 1970,
c. I-3 [repealed by S.C. 1976-77, c. 52, s. 128]).
That section, although similar to the present sec
tion 83, was couched in terms which clearly denied
jurisdiction to the Board:
... the Board shall not ... stay ....
Section 83, by contrast, affirms the Board's power
to act but in a particular way:
... the Board shall dismiss ....
Before so acting the Board must necessarily find
that it has a valid certificate before it. If it can
find the certificate valid it must also be able to
find it invalid. Its power to do so is a necessary
corollary to its appellate jurisdiction under section
72 of the Act. This is not to say that the Board
could give a formal declaration of invalidity
(something which the action as drawn only seeks
inferentially in any event). It does, however, have
the power to deal with and dispose of the grounds
asserted in support of the action.
In my view, the more important question here is
not whether the Immigration Appeal Board has
jurisdiction to deal with the issues raised by this
action but rather whether such jurisdiction is
exclusive. I turn again to section 59. The Board's
exclusive authority extends to questions
... that may arise in relation to the making of a removal order
Questions relating to the validity, scope and effect
of a section 83 certificate are not questions that
arise in relation to the making of a removal order.
Indeed, the certificate itself has nothing to do with
the removal order. It is posterior to it and operates
not upon the order itself but upon the way the
Board is to dispose of an appeal before it.
It follows, in my view, that the Board's jurisdic
tion to deal with the section 83 certificate does not
derive from section 59 alone. Hence such jurisdic
tion is not exclusive and is not covered by that
section's privative provisions so as to oust the
jurisdiction of the Trial Division.
Since the Trial Judge's decision was based solely
on his finding that the Board's jurisdiction was
exclusive, it follows that the appeal must be
allowed and the decision set aside. It does not,
however, follow that the action should be allowed
to continue. As the Trial Judge correctly stated,
the circumstances are such that it is in the inter
ests of justice that the action should be stayed
since the Board is already seized of the appellant's
appeal, has the power to deal with the issues raised
herein, and any decision rendered can be the sub
ject of an appeal to this Court on questions of law
or jurisdiction.
It was agreed by counsel at the hearing that, in
any event, paragraphs 11 and 12(c) of the state
ment of claim should be struck out.
I would allow the appeal and would substitute
for the order of the Trial Division an order striking
paragraphs 11 and 12(c) of the statement of claim
and staying the plaintiff's action. Plaintiff is en
titled to his costs on the appeal, defendants, to
theirs on the motion to stay in the Trial Division.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: I have had the advantage of reading
the reasons for judgment proposed by Mr. Justice
Hugessen and would agree that this appeal should
be allowed but that the action should be stayed.
In paragraph 8 of his declaration filed in the
Trial Division on December 14, 1982, the appel
lant alleged:
8. Pursuant to section 83 of the Immigration Act, 1976, the
Minister of Employment and Immigration on the 20th day of
July, 1982 and the Solicitor General of Canada on the 3rd day
of August 1982 signed a Certificate certifying that in their
opinion based on criminal intelligence reports considered by
them that it would be contrary to the national interest for the
Immigration Appeal Board in the exercise of its authority
under section 75(1) of the Act or subsection 76(3) of the Act
with respect to an appeal made by the Plaintiff pursuant to
section 72(1)(b) to do other than dismiss the appeal.
The appellant took the position in paragraph 12(b)
of the declaration that the provisions of section 83
of the Immigration Act, 1976 are contrary to the
provisions of the Canadian Charter of Rights and
Freedoms. In argument both here and below, the
appellant specifically relied on section 7 of the
Charter reading as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
In my view, the pre-Charter decision of the
Supreme Court of Canada in Prata v. Minister of
Manpower & Immigration' cannot be regarded as
determinative of the question raised in paragraph
12(b) of the declaration. I would respectfully agree
with the Trial Judge [at pages 186 and 187] that it
would be a "wrong exercise of discretion summari
ly to deny the plaintiff the opportunity to have the
courts reconsider Prata in the light of the Chart
er'. The Board has still to dispose of the appeal. It
would seem to me entirely appropriate that, in
deciding whether it is required to obey the com
mand of the statute, the Board ought to consider
whether it must dismiss the appeal notwithstand
ing the provisions of section 7 of the Charter.
Under subsection 52(1) of the Charter, the Con
stitution of Canada of which the Charter forms a
part
52. (1) ... is the supreme law of Canada, and any law that
is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.
It seems to me, therefore, that the Board could
decide in the pending appeal whether the provi
sions of section 83 of the Act are, in fact, inconsist
ent with the provisions of section 7 of the Charter.
If it concluded that they are, then subsection 52(1)
of the Charter would render section 83, to the
extent of the inconsistency, of "no force or effect".
In consequence, the certificate issued pursuant to
its provisions would likewise lack effect and the
Board could not act upon it. In arriving at such a
conclusion, the Board would need to consider the
possible bearing upon the question of other provi
sions of the Charter including whether section 83
is to be seen as constituting a reasonable limit,
under section 1, of the rights and freedoms other
wise guaranteed.
I agree that the question as to whether the
certificate was validly issued pursuant to section
83 of the Act does not "arise in relation to the
making of a removal order" as such. The removal
order had already been made and the question
before the Board in the appeal was whether its
execution ought to be stayed. In fact, the stay of
execution was in operation on the dates the certifi
cate was signed. The privative provisions found in
section 59 of the Act whereby the Board is
' [1976] 1 S.C.R. 376.
endowed with "sole and exclusive" jurisdiction in
respect of certain questions are inapplicable. An
appeal is now pending before the Board. In my
view, in deciding whether it must dismiss that
appeal the Board can consider and, if persuaded,
give effect to an argument that the Charter has
rendered section 83 of the Act of no force or effect
to the extent of any inconsistency with section 7 of
the Charter. Pending disposition of that issue I
think this action should be stayed.
The relief asked in the declaration is not limited
to a remedy based upon the Charter. In paragraph
12(a) of the declaration the appellant claims:
12....
(a) A declaration that the Defendants are obliged to inform
the Plaintiff of the general allegations against him and allow
him to make submissions prior to completing a section 83
Certificate against him.
It became clear in argument before us that this
particular claim is based upon the alleged failure
of the ministers concerned in issuing the certificate
of complying with the doctrine of "fairness" enun
ciated by the Supreme Court of Canada in
Nicholson v. Haldimand-Norfolk Regional Board
of Commissioners of Police. 2 This raises a ques
tion whether rights flowing from the application of
that doctrine have been subsumed by section 7 of
the Charter guaranteeing, inter alia, that the
appellant had the right not to be deprived of a
right guaranteed by that section "except in accord
ance with the principles of fundamental justice".
That question has yet to be authoritatively decided
and it is unnecessary to deal with it on this appeal.
In my view, the appellant should have the opportu
nity of advancing that argument before the Board.
If, on the other hand, it were found that this
remedy lies outside the Charter, it is my view that
the Board could not, to use the words of Martland
J. in the Prata case [at page 382], "declare invalid
the certificate". Such a remedy would be available
under subsection 18(1) of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c, 10] which confers
jurisdiction on the Trial Division to hear the claim
made in paragraph 12(a) and to grant the kind of
relief sought.
2 [l979] 1 S.C.R. 311.
In the result, I would agree with the order
proposed by Mr. Justice Hugessen. I do not think
that a stay of the action will prejudice the appel
lant. If he should be dissatisfied with a disposition
made by the Board, he may seek to appeal the
decision to this Court pursuant to section 84 of the
Act. Should, instead, the Charter be found to be
inapplicable, it would remain open to him to seek
to proceed with his action in the Trial Division.
RYAN J.: 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.