A-1419-84
Madhur Lata Prassad (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Mahoney, Hugessen and Mac-
Guigan JJ.—Ottawa, July 9, 1985.
Practice — Appeals — Motion for leave to appeal to
Supreme Court of Canada — S. 31 of Federal Court Act
charging Court of Appeal with duty, upon application, of
determining whether case ought to be submitted to Supreme
Court for decision — Practice generally to refuse leave: Min
ister of National Revenue v. Creative Shoes Ltd., [19721 F.C.
1425 (C.A.) — Question for submission whether inquiry ought
to be adjourned to permit application to Minister and Gover
nor in Council, pursuant to ss. 37 and 115 of Immigration Act,
1976 — Ramawad v. Minister of Manpower and Immigration,
[1978] 2 S.C.R. 375 narrowly interpreted, with strong dissents,
by Federal Court of Appeal — Leave granted -- Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 31(2) — Immi
gration Act, 1976, S.C. 1976-77, c. 52, ss. 37, 115.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Minister of National Revenue v. Creative Shoes Ltd.,
[ 1972] F.C. 1425 (C.A.); Ramawad v. Minister of Man
power and Immigration, [1978] 2 S.C.R. 375; Louhisdon
v. Employment and Immigration Canada, [1978] 2 F.C.
589 (C.A.); Oloko v. Canada Employment and Immi
gration, [1978] 2 F.C. 593 (C.A.); Minister of Employ
ment and Immigration v. Widmont, [1984] 2 F.C. 274;
56 N.R. 198 (C.A.).
WRITTEN REPRESENTATIONS BY:
Reiner O. Rothe and Andrew McKinley for
applicant.
Rebecca W. Hunter for respondent.
SOLICITORS:
Rothe & Company, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
HUGESSEN J.: This is a motion brought pursu
ant to section 31 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10] for leave to appeal to the
Supreme Court of Canada from a judgment of this
Court, rendered March 5, 1985 [A-1419-84, not
yet reported], dismissing the applicant's applica
tion under section 28 of the Federal Court Act.
This Court's judgment held that an adjudicator
does not err in refusing an adjournment of an
inquiry under the Immigration Act, 1976 [S.C.
1976-77, c. 52], where such adjournment is sought
for the purposes of permitting the applicant to
pursue applications to the Minister and to the
Governor in Council, under sections 37 and 115
respectively. The question sought to be put to the
Supreme Court is whether this Court erred in so
holding.
I am well aware that the practice of this Court
is generally to refuse leave, especially since such
refusal is, in any event, without prejudice to the
applicant's right to apply for leave to the Supreme
Court itself. The leading case on the matter in this
Court is Minister of National Revenue v. Creative
Shoes Ltd., [ 1972] F.C. 1425 (C.A.), where the
Court held that leave ought not to be granted save
in the most obvious cases and that, generally
speaking, the Supreme Court should be allowed to
set its own agenda. That reasoning is even more
cogent today than it was in 1972 and the advent 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.)]
has imposed upon the Supreme Court an even
heavier burden as the country's final court of
appeal. It remains, however, that section 31 of the
Federal Court Act charges this Court with the
duty, when application is made to it, of determin
ing whether a case is one which "ought to be
submitted to the Supreme Court for decision".
That is a duty which cannot be avoided. Until such
time as Parliament sees fit to change the law,
litigants are entitled, as of right, to have our view
as to whether a question is one of such national
importance that it ought to go to the court of last
resort.
Here the question sought to be submitted is one
which some might think has already been decided
by the Supreme Court (Ramawad v. Minister of
Manpower and Immigration, [ 1978] 2 S.C.R.
375). This Court, however, has interpreted Rama-
wad very narrowly in the majority decisions in
Louhisdon v. Employment and Immigration
Canada, [1978] 2 F.C. 589 (C.A.) and Oloko v.
Canada Employment and Immigration, [1978] 2
F.C. 593 (C.A.). In each of these cases there was a
strong dissent. More recently, in the case of Min
ister of Employment and Immigration v. Wid-
mont, [1984] 2 F.C. 274; 56 N.R. 198 (C.A.), this
Court, again with a strong dissent, felt itself bound
to follow its own previous decisions in Louhisdon
and Oloko. It is not without significance that in
Widmont the Court stayed execution of its own
judgment until the latter of: expiry of time to
apply for leave to appeal to the Supreme Court,
refusal of such leave, or the giving of judgment by
the Supreme Court on the merits if leave should be
granted. By the same token, the panel of the Court
which rendered the judgment presently sought to
be submitted to the Supreme Court indicated
specifically that it found itself bound by the deci
sion in Widmont. Notwithstanding this, there has
apparently been no application made to the
Supreme Court for leave in Widmont and the
normal delays for doing so have now long expired.
In the circumstances and notwithstanding the
great reluctance which I feel in adding yet another
case to the already overloaded list of the Supreme
Court, it is my view that the question raised herein
is one which ought to be submitted to the Supreme
Court for decision and, that being so, it is our duty
to grant the leave sought.
MAHONEY J.: I agree.
MACGUIGAN J.: I agree.
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.