A-670-86
Attorney General of Canada (Applicant)
v.
Bibi Alli (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. ALLI
Court of Appeal, Pratte, Urie and Stone JJ.—
Toronto, April 22; Ottawa, May 9, 1988.
Judicial review — Applications to review — Ad hoc com
mittee under Family Allowances Act, 1973, allowing appeal
against refusal of respondent's application for family allow
ance benefits — Respondent having no status under Immigra
tion Act, 1976, as claim for refugee status not decided —
Committee holding s. 3(1) Family Allowances Act unconstitu
tional, as discriminating against residents having no immigra
tion status — Decision set aside — Committee having no
power to make declarations as to constitutionality.
Constitutional law — Charter of Rights — Enforcement —
Review Committee set up under Family Allowances Act, 1973
not "court of competent jurisdiction" under Charter, s. 24 —
Federal Court of Appeal, not being court of first instance,
without power to grant relief under s. 24.
This is an application to set aside a decision of a Review
Committee set up under the Family Allowances Act, 1973. The
respondent arrived in Canada in 1980, claiming Convention
refugee status. She filed an application for family allowances in
1983, which was refused on the ground that, as no determina
tion had been made under the Immigration Act, 1976, she did
not meet the requirements of paragraphs 3(1)(a) or (b) of the
Family Allowances Act, 1973. The Review Committee decided
in her favour on the basis that subsection 3(1) violated section
15 of the Charter, as it discriminated against residents, while
allowing benefits to persons who have been admitted as visitors.
Held, the application should be granted.
It is not necessary to rule on the equality issue since the
Review Committee could neither make a declaration as to the
constitutional validity of subsection 3(1) nor allow the appeal
on the basis of its constitutionality. This reasoning, set out in
Canada (Attorney General) v. Vincer, is difficult to reconcile
with Zwarich v. Canada (Attorney General), in which the
Court held that an Umpire under the Unemployment Insurance
Act, 1971, in reviewing a decision of the Board of Referees,
must first determine the constitutional validity of the applicable
statutory provisions. It is not, however, necessary to choose
between these two apparently conflicting cases. The ruling in
Zwarich, that a tribunal may ignore statutory provisions which
it believes contravene the Charter, does not apply here since,
even if clause 3(1)(b)(ii) is of no force and effect, the Review
Committee has no power to incorporate into the legislation
changes which would make it constitutional.
The Court cannot, itself, give the remedy the respondent is
seeking, since it is only a court of appeal and review and not a
court of first instance. In deciding whether a decision was
correctly made, it cannot exercise its section 24 power.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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. 15, 24.
Family Allowances Act, 1973, S.C. 1973-74, c. 44, s.
3(1) (as am. by 1976-77, c. 52, s. 128).
Family Allowances Regulations, C.R.C., c. 642, s. 2(3)
(as added by SOR/78-505 s. I(2)).
Federal Court Act, R.S.C. 1970 (2nd Supp.) c. 10, s. 28.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Canada (Attorney General) v. Vincer, [1988] I F.C. 714
(C.A.).
DISTINGUISHED:
Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253 (C.A.).
COUNSEL:
Debra M. McAllister for applicant.
Michael A. Bossin for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Michael A. Bossin, Willowdale Community
Legal Services, Willowdale, Ontario, for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTÉ J.: This section 28 [Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10] application is
directed against a decision of a Review Committee
established pursuant to the Family Allowances
Act, 1973.' By that decision, made on October 29,
1986, the Committee allowed an appeal from the
refusal of the respondent's application for family
allowance benefits.
The respondent is a citizen of Guyana who came
to Canada on August 3, 1980. Her husband, who
is also a citizen of Guyana, joined her about a
month later. Neither were admitted to Canada.
While the record does not show it, it may be
assumed that, on their arrival, they were the sub
jects of immigration inquiries, during which they
claimed that they were Convention refugees, with
the result that the inquiries were adjourned pursu
ant to subsection 45(1) of the Immigration Act,
1976 [S.C. 1976-77, c. 52], pending a decision on
their claims. It is common ground that, as late as
June 3, 1984, the respondent and her husband
were still in Canada without immigration status
awaiting that their claims be disposed of. In 1981,
however, they had obtained the authorization to
work in Canada and had, since then, worked and
received employment income which was subject to
income tax.
The respondent and her husband have three
children: two daughters who were born in Guyana
(Salima, on August 21, 1972, and Sheleeza, on
September 6, 1973) who came to Canada in July,
1981, and a son, Kazim, who was born in Toronto
on January 23, 1983.
On June 4, 1982, the respondent submitted an
application for family allowances with respect to
her two daughters. However, as she failed to file
the documentation that was required, no final
decision was ever made on that application. On
February 15, 1983, she filed a new application
with respect, this time, to her three children. That
application was refused on the ground that, having
no status in Canada under the Immigration Act,
1976, neither the respondent nor her husband met
1 S.C., 1973-74, c. 44.
the requirements of paragraphs 3(1)(a) or (b) of
the Family Allowances Act, 1973. 2
The respondent appealed from that decision to a
Committee established under section 15 of the
Family Allowances Act, 1973. By a decision dated
October 29, 1986, the majority of that Committee
2 Subsection 3(1) of the Family Allowances Act, 1973, S.C.,
1973-74, c. 44, [as am. by S.C. 1976-77, c. 52, s. 128] reads as
follows:
3. (1) Subject to this Act, there shall be paid out of the
Consolidated Revenue Fund, for each month, a family allow
ance of twenty dollars or such greater amount as may be
determined from time to time pursuant to section 13 in
respect of each child whose parents are resident in Canada or
deemed to be resident in Canada in prescribed circumstances
and who has at least one parent who
(a) is a Canadian citizen; or
(b) is a person who
(i) is a permanent resident within the meaning of the
Immigration Act, 1976, or
(ii) in prescribed circumstances, is a visitor in Canada or
the holder of a permit in Canada within the meaning of
the Immigration Act, 1976.
It must be observed that no regulation was ever made prescrib
ing circumstances in which parents are deemed to be resident in
Canada for the purposes of subsection 3(1). However, subsec
tion 2(3) of the Regulations [as added by SOR/78-505, s. 1(2)]
made pursuant to the Act prescribes in the following terms the
circumstances that are referred to in subparagraph 3(1)(b)(ii)
of the Act:
2....
(3) For the purposes of subparagraph 3(1)(b)(ii) of the
Act, the following circumstances are prescribed:
(a) the period of time for which
(i) the parent has been admitted as a visitor in Canada
and, where applicable, authorized to remain as a visitor
in Canada, or
(ii) the permit has been issued to the parent and, where
applicable, extended
is at least 12 months;
(b) the income of the parent is subject to income tax under
the Income Tax Act; and
(c) the parent is not
(i) a member of a military force present in Canada for
training or any other purpose in connection with the
defence or security interests of Canada or under any
treaty or agreement between Canada and another
country,
(ii) present in Canada to carry out his official duties as a
diplomat, consular officer, representative or official
properly accredited of
(A) a country other than Canada,
(B) the United Nations or any of its agencies, or
(C) any intergovernmental organization in which
Canada participates,
(iii) a spouse of a person referred to in subparagraph (i)
or (ii), or
(iv) a member of the staff of a person referred to in
subparagraph (i), (ii) or (iii).
allowed the respondent's appeal. Its decision reads
in part as follows:
1. The majority find that Mrs. Alli is entitled to receive Family
Allowances payments for her two eldest children commencing
March 1982 and for all three of her children commencing
March 1983 ... the majority finds that on reading S.2(3) of
the Family Allowances Act, the intention of the legislation was
to give Family Allowances benefits to parents who are resident
in Canada.
The majority finds that S.3(1) of the Family Allowances Act
admits of two interpretations, based on a conjunctive or dis-
junctive reading of the Section. The majority adopts the dis-
junctive reading of S.3(1) and finds that benefits must be paid
"for each child whose parents are resident in Canada" (with
"resident in Canada" being defined by S.2(3) of the Family
Allowances Act).
2. Even if we had reached the contrary conclusion as a matter
of statutory interpretation, we would have held S.3(1) unconsti
tutional as being in violation of S.15 of the Charter of Rights
and Freedoms. We find that discrimination against residents,
while visitors who may have a far more tenuous connection
with this country are allowed Family Benefits, could not possi
bly be justified under S.1 of the Charter.
In other words, the Committee found that the
respondent was entitled to receive family allow
ances for two reasons. First, because they inter
preted subsection 3(1) of the Act as not requiring
that a child whose parents are resident in Canada
should also, in order to qualify for family allow
ances, have one parent who meets one or the other
conditions described in paragraphs 3(1) (a) and
(b). And, second, because in the Committee's view,
subsection 3(1) is unconstitutional as violating the
principle of equality before the law enshrined in
section 15 of the Canadian Charter of Rights and
Freedoms. It is against that decision that this
section 28 application is directed.
Counsel for the applicant argued
1. that the interpretation of subsection 3(1)
adopted by the Committee is wrong;
2. that subsection 3(1) does not violate section
15 of the Charter;
3. that, if subsection 3(1) violates section 15, it
is nevertheless valid as legislation demonstrably
justified in a free and democratic society within
the meaning of section 1 of the Charter; and
4. that, in any event, the Committee lacked the
power to rule on the constitutional validity of
the statute it had to apply.
Counsel for the respondent very candidly
conceded that he could not find any argument in
support of the Committee's interpretation of sub
section 3(1) which states clearly that, for a child to
qualify for family allowances, not only must his
parents be resident in Canada, but in addition, one
of them must meet the requirements described in
paragraphs 3(1)(a) and (b). In so far as it is
founded on a wrong interpretation of subsection
3(1), the decision of the Committee is therefore
wrong in law.
Counsel for the respondent argued persuasively,
however, that this section 28 application should
nevertheless be dismissed on the ground that the
Committee's finding of unconstitutionality was
right. Subsection 3(1) is discriminatory and vio
lates section 15 of the Charter, said he, because it
makes an unwarranted distinction, for family
allowances purposes, between children of persons
who have been admitted in the country as mere
visitors, and children of persons who, like the
respondent, have claimed to be Convention
refugees and who, sometimes for many years, are
allowed to remain and work in the country until
their claim is disposed of. It is, said counsel, both
unfair and unreasonable to provide, as does sub
section 3(1), that the former class of children
qualifies for family allowances while the latter
does not.
It is not necessary, in order to dispose of this
application, to discuss and rule on the validity of
that submission since, in any event, the Committee
could neither make a declaration as to the consti
tutional validity of subsection 3(1) nor allow the
respondent's appeal on the basis of the unconstitu-
tionality of that provision.
The Committee's jurisdiction, under section 15
of the Act is merely to decide whether the decision
that is the object of the appeal was correctly made.
Clearly, it does not include the power to make
declarations as to the constitutionality of the
Family Allowances Act, 1973.
In Canada (Attorney General) v. Vincer, 3 my
brothers Marceau and Stone both expressed the
view that a tribunal established pursuant to section
15 of the Family Allowances Act, 1973, has nei
ther the power to grant a remedy under subsection
24(1) of the Charter nor that of assuming, in
deciding an appeal, the constitutional invalidity of
the statutory provisions that it is called upon to
apply. If that view is the correct one, there is no
doubt that the decision under attack exceeded the
jurisdiction of the Committee.
In order to avoid that conclusion, counsel for the
respondent put forward two submissions. First, he
invoked the decision rendered by this Court in
Zwarich v. Canada (Attorney General) 4 where it
was held that an Umpire under the Unemployment
Insurance Act, 1971 [S.C. 1970-71-72, c. 48], in
order to decide whether the decision of the Board
of Referees is in accordance with the law, must
first determine the constitutional validity of the
applicable statutory provisions. The respondent's
second submission was that, if the Appeal Com
mittee lacked the power to grant remedies under
section 24 of the Charter, this Court clearly has
that power and should exercise it by dismissing the
section 28 application brought by the applicant.
It is certainly difficult to reconcile what I said in
Zwarich with what was said in Vincer. However,
for the purposes of this case, it is not necessary to
choose between those two apparently conflicting
decisions since there is nothing in Zwarich that
can help the respondent. Clearly, for the reasons
given by Marceau J. and Stone J. in Vincer, an
Appeal Committee established pursuant to section
15 of the Family Allowances Act, 1973, is not a
"tribunal of competent jurisdiction", within the
meaning of section 24 of the Charter. Nothing was
said on this subject in Zwarich. It was held in
Zwarich that a tribunal, in making a decision that
it is empowered to make, may ignore the statutory
' [1988] 1 F.C. 714 (C.A.).
4 [1987] 3 F.C. 253 (C.A.).
provisions which, in its view, contravene the consti
tution and are, for that reason, "of no force or
effect". That proposition has no application here.
Counsel for the respondent agreed that paragraph
3(1) (a) and subparagraph 3(1) (b) (i) are not dis
criminatory. His only contention in this regard was
that subparagraph 3(1)(b)(ii) was too narrowly
drawn and should, in order not to discriminate,
have included persons in the situation of the
respondent. If that submission were well founded,
subparagraph 3(1) (b) (ii) would contravene section
15 of the Charter and be, for that reason, of "no
force or effect". This, of course, would not help the
respondent who cannot succeed unless the Appeal
Committee had the right, in deciding her appeal,
to apply a new version of subparagraph 3(1)(b)(ii)
incorporating the changes necessary to make it
constitutional. Obviously, the Committee had no
such right.
Counsel for the respondent also argued that, in
any event, this Court, being a court of competent
jurisdiction within the meaning of section 24 of the
Charter could give the respondent the remedy she
is seeking by dismissing the applicant's section 28
application. There is no merit in that submission.
Section 24 does not transcend all rules of proce
dure. This Court is a court of appeal and review. It
is not a court of first instance. In reviewing a
decision of a tribunal lacking the power to grant
remedies under section 24, the only question that
this Court may answer is whether that decision
was correctly made. In answering that question,
the Court cannot exercise its section 24 power.
I would for these reasons grant the application,
set aside the decision under attack and refer the
matter back to the Committee in order that it be
decided on the basis that the respondent was not
entitled to the allowances she was claiming.
URIE J.: I agree.
STONE 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.