A-493-88
Minister of Employment and Immigration and
Attorney General of Canada (Appellants)
v.
Harvinder Singh Sethi (Respondent)
INDEXED AS: SETHI v. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (C.A.)
Court of Appeal, Heald, Urie and Mahoney JJ.—
Ottawa, May 12 and June 20, 1988.
Judicial review — Prerogative writs Prohibition Pro
posed legislation abolishing Immigration Appeal Board and
discharging members without compensation for unexpired
terms — Trial Judge finding circumstances creating reason
able apprehension of bias — Erred in considering stage of bill
in legislative process Test as to impartiality of tribunals
Although Minister opposing party in proceedings before
Board, also responsible for administration of Act in accord
ance with law Opposition arising from genuine disagree
ment, not personal interest — No informed, right-minded
person concluding Board pleasing government if deciding disa
greement unfairly — Uncertainty of realization of govern
ment's intentions expressed by introduction of legislation ren
dering impossible informed pronouncement on balance of
probabilities as to how tribunal reacting — Damaging effect
on democratic process if announcement of government's inten
tions affecting tribunal's ability to function.
Immigration — Immigration Appeal Board — Proposed
legislation would abolish Board, discharge members without
compensation for unexpired terms and establish new Board
Trial Judge finding situation giving rise to reasonable appre
hension of bias as members' prospects uncertain and in hands
of government, litigant before Board Appeal allowed — No
informed, right-minded person concluding Board pleasing
government by deciding case unfairly — Uncertainty govern
ment's intentions will be enacted such that cannot be said
Board members will not carry out duties.
The Trial Judge found that there was a reasonable apprehen
sion of bias due to the existence of Bill C-55 (proposing
abolition of the Immigration Appeal Board, the discharge of its
members without compensation for the unexpired terms of their
appointments and the establishment of a new Immigration and
Refugee Board). Board members had every reason to think that
their prospects were uncertain and in the hands of the govern
ment which was opposing the applicant's refugee status claim.
The Bill was at a sufficiently advanced stage in the legislative
process as not to be too remote or speculative to support a
finding of apprehension of bias.
Held, the appeal should be allowed.
The Trial Judge erred in considering the stage which Bill
C-55 had reached in the Parliamentary process. It is sheer
speculation to assume that any bill before Parliament will
proceed to enactment and proclamation, regardless of the gov
ernment's majority or potential longevity. The introduction of a
bill in Parliament is merely indicative of the government's
intention that it become law as introduced.
The Supreme Court of Canada decision in Valente v. The
Queen et al., to the extent that it dealt with the impartiality of
tribunals, was apposite. The Trial Judge rejected the argument
that Valente had authoritatively settled on the test for bias as
that stated by de Grandpré J. in Committee for Justice and
Liberty et al. v. National Energy Board et al. There probably is
no difference between the de Grandpré test and the Laskin test,
and the de Grandpré test has been applied by the Federal Court
of Appeal many times. That test is that the apprehension of
bias must be a reasonable one, held by reasonable and right-
minded persons, applying themselves to the question and
obtaining thereon the required information.
In these proceedings, the question was whether a reasonable
and right-minded person, having informed himself of the uncer
tainty of pertinent legislative and executive processes, would
consider it more likely than not that the Immigration Appeal
Board would not decide his case fairly because the government
had announced its intention to terminate the employment of all
members of the Board, without right to compensation regard
less of their tenure, while holding out the prospect of their
appointment, by it, to another tribunal. The question had to be
answered in the negative. Although the Minister is the opposing
party before the Board, the Minister is also responsible for the
administration of the Act in accordance with the law. 1f the
Minister opposes an application or appeal, it is because there is
a genuine disagreement to be resolved, not because the govern
ment has an interest personal to the individual concerned. No
informed, right-minded persons would conclude that members
of the Board would please the government if they decided that
disagreement unfairly. Board members are well informed as to
the administration and policy of the Act and are right-minded.
Secondly, the uncertainty of the realization of a govern
ment's intentions, as expressed in proposed legislation, renders
impossible an informed pronouncement on a balance of
probabilities that the announced intention is likely to lead
members of the Board to do otherwise than carry out their
duties as usual.
Finally, if an announcement of a government's intentions as
to a tribunal was permitted to be a basis for holding that the
tribunal could not continue to function, it would have a damag
ing effect on the democratic process. Unless the government
can make public its intentions without risk to the ability of the
tribunal concerned to continue to function, the opportunity for
and the benefit of public input will be lost. Judges ought not to
intervene in the policy development and legislative processes on
the basis only of an intention. It may be that public debate on
Bill C-55, of which this proceeding was a part, will serve to
persuade the government to alter its intentions.
STATUTES AND REGULATIONS JUDICIALLY
CONST DER ED
Bill C-55, An Act to amend the Immigration Act, 1976
and to amend other Acts in consequence thereof, 2d
Sess., 33d Parl., 1986-87, ss. 18, 38.
Bill C-110, An Act to establish the Canadian Interna
tional Trade Tribunal and to amend or repeal other
Acts in consequence thereof, 2d Sess., 33d Parl.,
1986-87-88.
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. 7, 11(d).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 60(5).
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369; Valente v. The
Queen et al., [1985] 2 S.C.R. 673.
REVERSED:
Sethi v. Canada (Minister of Employment and Immigra
tion), [1988] 2 F.C. 537 (T.D.).
CONSIDERED:
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; (scar Ltd. v. Karl Hertel GmbH,
T-2332-85, Jerome A.C.J., order dated 29/1/88,
F.C.T.D., not yet reported; Kelso v. The Queen, [1981] 1
S.C.R. 199.
REFERRED TO:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; MacBain v. Lederman, [1985]
1 F.C. 856 (C.A.); Satiacum v. Minister of Employment
and Immigration, [1985] 2 F.C. 430 (C.A.).
COUNSEL:
David Sgayias, Brian Hay and Alain Préfon-
taine for appellants.
David Matas for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
David Matas, Winnipeg, for respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from a judg
ment of the Trial Division [[1988] 2 F.C. 537]
which quashed the refusal of the Immigration
Appeal Board to decline jurisdiction to deal with
the respondent's application for redetermination of
his claim to be a Convention refugee because of a
reasonable apprehension of bias on the part of the
Board. The learned Trial Judge found [at page
544] that there was a reasonable apprehension of
bias because Bill C-55 [An Act to amend the
Immigration Act, 1976 and to amend other Acts
in consequence thereof, 2d Sess., 33d Parl., 1986-
87] "is at a sufficiently advanced stage in the
legislative process so that it would not be too
remote or speculative an event to support a finding
of apprehension of bias if that finding is valid for
other reasons" and also that the finding was valid
for other reasons.
Bill C-55 proposes to abolish the Immigration
Appeal Board and discharge its members without
right to claim or receive compensation notwith
standing the unexpired terms of their appoint
ments under the Immigration Act, 1976 [S.C.
1976-77, c. 52], as it presently stands. The offend
ing provisions are contained in section 18 of the
Bill, which, inter alia, would repeal sections 59 to
69 of the Act, whereby the Board is established,
and in section 38, which, in part, would provide:
38. (1) Subject to this section, the members of the former
Board and the members of the former Committee cease to hold
office on the commencement day.
(7) No person appointed to hold office as a member of the
former Board or of the former Committee has any right to
claim or receive any compensation, damages, indemnity or
other form of relief from Her Majesty in right of Canada or
any servant or agent thereof for ceasing to hold office under
this section or for the abolition of that office by this Act, but
the Governor in Council may, by order, authorize or provide for
any such relief.
These may be contrasted with subsection 60(5) of
the Immigration Act, 1976.
60....
(5) Each member who, immediately prior to the coming into
force of this Act, was a permanent member of the Immigration
Appeal Board established by section 3 of the Immigration
Appeal Board Act, as it read before it was repealed by subsec
tion 128(1) of this Act, continues in office as a member of the
Board and shall hold such office during good behaviour but
may be removed by the Governor in Council for cause.
Bill C-55 also proposes to create a new Immi
gration and Refugee Board consisting of a Chair
man for a 7-year term and a maximum of 95
permanent members for 5-year terms with addi
tional temporary members as required. The evi
dence is that there are 49 Immigration Appeal
Board members, whereof 3 continue to hold "life-
time" appointments by virtue of subsection 60(5),
12 were appointed to 10-year terms, one to a
7-year term and 33 are temporary members with
2-year appointments. At the time the trial judg
ment was rendered the Bill had passed third read
ing by the House of Commons. When we heard
the appeal it had been reported back to the Senate
by its Committee. While irrelevant in my view of
the matter, amendments which would continue
members of the present Board in office as mem
bers of the proposed Immigration and Refugee
Board have been recommended to the Senate by
its Committee. Bill C-55 does not propose that
members of the present Board be ineligible for
appointment to the new tribunal.
The respondent claims to be a Convention
refugee. He had been determined not to be one by
the Minister. The proceeding before the Board was
his application for a redetermination of that claim.
While it has not been definitively decided, there is
a respectable case to be made that the security of
his person, as protected by 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.)], is at stake.
In any event, he is entitled to a fair hearing in
accordance with the principles of fundamental jus
tice, Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177. A tribunal
cannot accord a party such a hearing if that party
reasonably apprehends bias on its part, Committee
for Justice and Liberty et al. v. National Energy
Board et al., [1978] 1 S.C.R. 369.
The other principal jurisdictions of the Board
are to hear appeals by permanent residents against
deportation orders and appeals by sponsoring
Canadian citizens and permanent residents against
the refusal of admission of members of their fami
lies to Canada. As to those appellants, it has an
exclusive jurisdiction to invoke humanitarian and
compassionate considerations. Appeals by landed
immigrants against deportation orders usually, at
the lowest level, involve the proposed expulsion
from Canada of persons who have established
themselves here and can, in an extreme case,
involve the expulsion of one who arrived as a child
and retains no meaningful connection with his
country of citizenship. Denials of sponsored
applications for landing, in all cases, involve the
frustration of an expressed desire, whether bona
fide or not, to reunite a family and, in the all too
frequent cases of a finding of marriage of conve
nience, the consequence is to deny husband and
wife the right to cohabit in Canada. For an appli
cant or appellant to the Board, the stakes can be
very high. The Board's principal responsibilities
are such that it simply cannot function if it is
reasonably apprehended to be biased in favour of
the government.
The basis for the learned Trial Judge's conclu
sion that the respondent reasonably apprehended
bias is found in the following passages at page 550
of her reasons.
The present Board members have been put in a position where
they have every reason to think that their immediate financial
future is unsettled and in the hands of the government. That
same government is opposing the applicant's claim for refugee
status, the question which is beforethe Board. I emphasize that
there is no suggestion of actual bias. Counsel for the applicant
stressed that no such allegation was being made and there is
not a shred of evidence to suggest actual bias. The question is
whether the facts are such that a reasonably well-informed
person would have a reasonable apprehension that the members
of the Board, in the present circumstances, might be likely to
try to please the government, by favouring its position over that
of the person opposing the government. I think such exists.
This is not a case where the members were originally
appointed on a short term basis (although since 1985 some have
been so appointed). While it is true that the shorter the term of
an appointment, when such is renewable, the closer one gets to
effective appointment "at pleasure", this case does not deal
with that issue. In this case, the Board members were appointed
for varying terms (some for 10 years). They would have
undertaken the appointment on that basis and arranged or
planned their financial affairs accordingly. What Bill C-55
does, is undercut that financial planning, that financial secu
rity. By threatening to "throw" all the members of the Board
out of office, it threatens the financial security of the members,
while at the same time, holding out the possibility that some of
them will be reappointed full time. In my view, given the fact
that it is the government which will select from the existing
Board members, those that will be reappointed full time, and it
is the government which is opposing the applicant's claim
before the Board, I accept the applicant's contention that a
reasonable apprehension of bias exists.
Before proceeding further, I would note that there
is no evidence that members of the Immigration
Appeal Board have taken an oath of office. It
cannot be inferred that they have since such is not
a requirement of the Immigration Act, 1976. I
should think that in the circumstances, if they
have, it would be relevant.
While applicants and appellants to the Immigra
tion Appeal Board are not persons "charged with
an offence" within the contemplation of paragraph
11(d) of the Canadian Charter of Rights and
Freedoms, the issue of apprehended bias seems to
me to arise in this case in a way that makes
particularly apposite the Supreme Court's decision
in Valente v. The Queen et al., [1985] 2 S.C.R.
673, as it dealt with the impartiality of tribunals
rather than their independence. The Trial Judge's
finding is that the entire Board has been tainted by
Bill C-55. It does not focus on any member or
category of members. As I have indicated, if a
reasonable apprehension of bias exists, it taints the
Board in the exercise of substantially all of its
jurisdiction, not only in the refugee redetermina-
tion process.
In Valente, Le Dain J., delivering the judgment
of the Court, directed his attention primarily to
the independence, as distinct from the impartiality,
of tribunals. The latter issue was dealt with rela
tively briefly, at page 684 ff., in the context of
whether the test for impartiality had been appro
priately adapted by the court below to the issue of
independence.
In her reasons, at page 547 ff., after considering,
inter alia, the judgments of Laskin C.J., and de
Grandpré J., in Committee for Justice and Liberty
et al. v. National Energy Board et al. [supra] the
learned Trial Judge rejected the present appel
lants' argument that Valente had authoritatively
settled on the test as stated by de Grandpré J.
That discussion would have been entirely unneces
sary unless the learned Trial Judge considered that
there was a significant difference, at least in the
present circumstances, between tests she identified
in terms of "a real likelihood of bias", the de
Grandpré statement, and "a reasonable suspicion
of bias", the Laskin formulation.
I do not think it necessary to pursue possible
distinctions between the two formulations of the
test in the present case. I incline to agree with de
Grandpré J., that there is none. In Valente, at page
685, after identifying the test applied by the Court
below as that put by de Grandpré J., in the N.E.B.
case [at page 394], Le Dain J., at page 685, said:
The issue is whether the test applied by the Court of Appeal,
clearly appropriate, because of its derivation, to the require
ment of impartiality, is an appropriate and sufficient test for
the requirement of independence. [My emphasis.]
That is a clear endorsement of the de Grandpré
statement of the test in the context of institutional
impartiality. That test, which has been invoked by
this Court in other instances too numerous to
catalogue, is:
... the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to
the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is "what would an
informed person, viewing the matter realistically and practical-
ly—and having thought the matter through—conclude. Would
he think that it is more likely than not that Mr. Crowe, whether
consciously or unconsciously, would not decide fairly".
Vid. MacBain v. Lederman, [1985] 1 F.C. 856
(C.A.), at page 867; Satiacum v. Minister of
Employment and Immigration, [1985] 2 F.C. 430
(C.A.), at page 436.
In my opinion, the learned Trial Judge erred in
considering relevant the stage to which Bill C-55
had advanced in the Parliamentary process. What
ever its stage in that process, it is sheer speculation
to assume that any bill before Parliament will
proceed to enactment and proclamation. That is so
regardless of the majorities which the governing
party may enjoy in either or both of the Houses of
Parliament, the potential longevity of the particu
lar Parliament and other factors which might be
thought to militate in favour of the certain passage
of government bills to law. The forces at work
within a government and a Parliament that influ
ence the progress of a bill to law are not very
different in terms of predictability than those
Dickson J., as he then was, in Operation Disman
tle Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441, at page 454, noted as "operating in an inter
national arena of radical uncertainty, and continu
ally changing circumstances". That the arena is
national does not appreciably enhance its certain
ty. As was recently said by the Associate Chief
Justice:
I cannot imagine anything less predictable than the course of
legislation through Parliament. Indeed, the only thing that is
certain about life in Parliament is that nothing is certain. The
ever-present possibility of a crisis leading to an election or a
general election without such a crisis, to say nothing of a hostile
Senate, underline only the most basic realities that make it
impossible to predict whether any measure will become law, let
alone when.
Vid. Iscar Ltd. v. Karl Hertel GmbH, unreported
decision rendered January 29, 1988, F.C.T.D., file
T-2332-85.
That said, the introduction of a government bill
in Parliament is, of itself, a fact. One need not
speculate on whether or when it will become law.
In Kelso v. The Queen, [1981] 1 S.C.R. 199, at
page 208, referring to a Parliamentary Resolution
on the provision of government services to the
public in light of the Official Languages Act
[R.S.C. 1970, c. O-2], it was said:
Although the Joint Resolution of the House of Commons and
the Senate of Canada passed in June 1973 may not be legally
binding, in the sense of creating enforceable legal rights and
obligations, it is, nonetheless, indicative of legislative intention.
Barring the occasional practice of expressly intro
ducing a bill as a substitute for a "White Paper",
the introduction of a government bill in Parliament
is indicative of the government's intention that it
become law as introduced. That is a fact and will
remain a fact until the bill does become law, it
"dies on the Order Paper" as a result of Parlia
ment proroguing without passing it, or the govern
ment announces a different intention. Amend
ments proposed in Parliament, unless by a
Minister of the Crown or the responsible Parlia
mentary Secretary, are not indicative of the gov
ernment's intention.
To state the applicable test in terms of the
present proceeding: the question is whether a
reasonable and right-minded person, having
informed himself of the uncertainty of pertinent
legislative and executive processes, would consider
it more likely than not that the Immigration
Appeal Board would not decide his case fairly
because the government had announced its inten
tion to terminate the employment of all members
of the Board, without right to compensation
regardless of their tenure, while holding out the
prospect of their appointment, by it, to another
tribunal. It seems to me that the question has to be
answered in the negative. While actual bias is not
to be confused with apprehension of bias, an
informed appraisal of how the Board is likely, in
fact, to react to the announced intention is neces
sary to an assessment of the reasonableness of the
apprehension.
In the first place, an affirmative answer would
require the informed, right-minded person to con
clude the Board will tend, consciously or uncon
sciously, to perceive the government's interest
lying in denial to applicants and appellants of
rights accorded them by the law. While the Minis
ter is the party adverse in interest to them in
proceedings before the Board, the Minister is also
the person ultimately responsible for the adminis
tration of the Act in a manner that accords with
the law. If the Minister opposes an application or
appeal, it is because there is a genuine disagree-
ment to be resolved by the Board, not because the
Minister, or the government, has an interest per
sonal to the individual concerned. The Board
knows all that and so does the informed, right-
minded person. In my opinion, no informed, right-
minded person would conclude that members of
the Board would, in fact, please the government if
they decided that disagreement unfairly. Members
of the Board, taken collectively, are well informed
as to the administration and policy of the Act, and,
I trust, right-minded. They would not think that
such conduct would, in fact, please the govern
ment. It follows that no informed, right-minded
person, viewing the situation from outside, would
think it more likely than not that the Board will
not deal fairly with its applicants and appellants
because of the government's intentions as
expressed in Bill C-55.
In the second place, the mere expression of a
government's intentions toward an administrative
tribunal cannot, in my opinion, give rise to a
probability that the tribunal will react to those
intentions in a particular way relative to the deci
sions it is required to make. The uncertainty of the
realization of those intentions, where legislation is
required, has already been discussed. That uncer
tainty, of itself, renders impossible an informed
pronouncement on a balance of probabilities that
the announced intention is likely to lead members
of the Board to do otherwise than carry out their
duties as usual.
A more profound reason for rejecting an
announcement of the government's intentions as to
a tribunal as a basis for holding that it cannot
continue to function, at least in so far as those who
choose to object are concerned, is found in the
chilling effect that would have on the democratic
process as it has developed in Canada. Public
debate, consultation and input have become impor
tant elements in the government's decision-making
process. Much of it is now out of the backroom.
Unless the government can make public its inten
tions without risk to the ability of the tribunal
concerned to continue to function, it seems to me
inevitable that it will be the opportunity for and
benefit of public input that will be lost. On the
dubious assumption that a court could find, in a
statement of government intention, sufficient cer-
tainty upon which to base a conclusion having
legal effect, it should be slow to do so. While the
judiciary must fulfil its responsibility to afford
individuals the full benefit of the law in their
dealings with government, judges ought not inter
vene in the policy development and legislative
processes on the basis only of an intention, how
ever strongly it appears to be held.
It may be that the public debate on Bill C-55, of
which this proceeding is, in a way, part will serve
to persuade the government to alter its intentions.
A Minister has already indicated a change of
intention in respect of a similar provision in Bill
C-110 [An Act to establish the Canadian Interna
tional Trade Tribunal and to amend or repeal
other Acts in consequence thereof, 2d Sess., 33d
Parl., 1986-87-88]. Vid. Minutes of Proceedings
and Evidence of the Legislative Committee on Bill
C-110, Issue No. 5, May 19, 1988, page 5:24. If
not, it may at least require an explanation of the
intention in light of previous practice as evidenced
by subsection 60(5) of the Act.
I would allow the appeal with costs, set aside the
judgment of the Trial Division and dismiss the
application to the Trial Division with costs.
HEALD J.: I agree.
URIE 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.