A-962-87
Charles Chadwick Steward (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: STEWARD V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Court of Appeal, Heald, Marceau and Lacombe
JJ.—Vancouver, April 15; Ottawa, May 3, 1988.
Federal Court jurisdiction — Court of Appeal — Validly
constituted panel of Federal Court of Appeal convicting lawyer
of contempt of court — Different panel of Court lacking
jurisdiction to reopen matter — Cases dealing with powers of
administrative or quasi-judicial tribunals to reopen own pro
ceedings and appeals from trial level convictions for contempt
distinguished — RR. 337(5) and 1733 not applicable.
Practice — Contempt of court — Lawyer missing court
appearance due to confusion resulting from law firm reorgani
zation, dispute with client over fees — Federal Court of
Appeal matter — Show cause order on Trial Division letter
head — Lawyer appearing at appointed time — Found in
contempt — Not prejudiced by any defect in order — Different
panel of Court lacking jurisdiction to reopen matter — Leave
to appeal to Supreme Court of Canada denied as question not
of national importance.
Practice — Appeals and new trials — Court of Appeal
without jurisdiction to reopen contempt conviction by different
panel of Court — Leave to appeal to Supreme Court of
Canada denied as issue not of national importance.
This was a motion for an order quashing a conviction for
contempt of court, or to reopen or rehear the contempt proceed
ings. Macintosh, a lawyer, had been, from time to time,
involved on behalf of the applicant (Steward) in a section 28
application. After the Court Administrator set the application
down for hearing, the law firm of which Macintosh was an
associate was reorganized. Furthermore, there was a disagree
ment between the firm and the client over fees. As a result of
these circumstances, there was confusion as to who, if anyone,
from the firm was acting for Steward. He was unrepresented at
the hearing and lawyer Macintosh was served, on Trial Division
letterhead, with a show cause order. Nonetheless, Macintosh
appeared before the Federal Court of Appeal at the duly
appointed time and date, and was convicted of contempt of
court by a validly constituted panel of that Court. The issue
was whether a different panel of the same Court had jurisdic-
tion to reopen the matter. Macintosh contended that paragraph
52(a) of the Federal Court Act grants either implied or express
power to reopen a matter where there have been breaches of
natural justice. His submission was that the improper notice of
hearing and the summary manner in which it was conducted
constituted breaches of natural justice. He alleged breaches of
the Charter, section 7 (deprived of liberty in a manner not in
accordance with the principles of fundamental justice), section
11 (deprived of a fair hearing), and section 10 (Court failed to
inform him of his right to counsel). He also argued that the
contempt proceedings violated paragraphs 1(a), 2(c)(ii) and (e)
of the Canadian Bill of Rights.
Held, the motion should be dismissed.
A panel of the Federal Court of Appeal does not have
jurisdiction to reopen a matter dealt with by a differently
constituted panel of the Court. The cases relied upon by
Macintosh were to be distinguished because they either dealt
with the powers of an administrative or quasi-judicial tribunal
to reopen its own proceedings, or were appeals from trial level
convictions for contempt. The properly constituted panel of the
Federal Court of Appeal had an inherent common law jurisdic
tion to deal with contempt. Neither Rule 1733 (permitting a
judgment to be set aside for fraud or where a new matter
arises) nor Rule 337(5) (allowing the Court to amend a judg
ment to conform to the reasons) was relied upon. Neither Rule
was applicable to the factual situation. Macintosh's appearance
before the panel at the proper time and place waived any
technical defect in the show cause order. He had not been
misled or prejudiced in any way.
Leave to appeal to the Supreme Court of Canada pursuant to
subsection 31(2) of the Federal Court Act should be denied.
This was not a case that obviously ought to be submitted to the
ultimate appellate Court. Although the jurisdictional question
was important to Macintosh, it was not of such national
importance as to warrant granting leave to appeal. In any
event, the Supreme Court of Canada can grant leave, even
though the Federal Court of Appeal has denied it.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III, ss.
1 (a), 2(c)(ii),(e).
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, 10, 11.
Criminal Code, R.S.C. 1970, c. C-34.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
28, 31(2), 52(a).
Federal Court Rules, C.R.C., c. 663, RR. 337(4),(5),
1100, 1733.
Municipal Corporations Act, 1882 (U.K.), 45 & 46
Vict., c. 50.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Vermette, [ 1987] 1 S.C.R. 577; Minister of Nation
al Revenue v. Creative Shoes Ltd., [1972] F.C. 1425
(CA.).
DISTINGUISHED:
New Brunswick Electric Power Commission v. Maritime
Electric Company Limited, [1985] 2 F.C. 13 (CA.); Gill
v. Canada (Minister of Employment and Immigration),
[1987] 2 F.C. 425 (C.A.); Woldu v. Minister of Man
power and Immigration, [1978] 2 F.C. 216 (C.A.); Ridge
v. Baldwin, [1964] A.C. 40 (H.L.); Posluns v. Toronto
Stock Exchange et al., [1968] S.C.R. 330; R. v. Larsen
(1974), 19 C.C.C. (2d) 574 (Ont. C.A.); Regina v. Carter
(1975), 28 C.C.C. (2d) 220 (Ont. C.A.).
CONSIDERED:
Dalton v. Toronto General Trusts Corporation (1908),
11 O.W.R. 667 (Weekly Ct.).
REFERRED TO:
Prassad v. Minister of Employment and Immigration,
[1985] 2 F.C. 81 (C.A.).
COUNSEL:
Gordon D. Hoffman for William J. Macin
tosh.
No one appearing for applicant.
Fred D. Banning for respondent.
SOLICITORS:
Webber & Company, Kamloops, British
Columbia, for William J. Macintosh.
R. Glen Sherman, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: These reasons relate to a motion
made by William J. Macintosh, Jr., a barrister and
solicitor, of the city of Vancouver, in the province
of British Columbia, for an order:
1. pursuant to Rule 1100 of the Federal Court Rules and
section 52 of the Federal Court Act quashing the conviction for
contempt against William J. Macintosh, Jr.; and/or
2. pursuant to the inherent or implicit authority of this Hon
ourable Court to rehear or reopen the contempt of court
proceedings against William J. Macintosh which was originally
heard on the 11th day of February, 1988; and
3. for such further and other relief as to this Honourable Court
seems just.
At the hearing of this motion before us at
Vancouver on April 15, 1988, Mr. Macintosh was
represented by counsel. The respondent Minister
had been served and Mr. Fred Banning, who was
counsel of record for the respondent in the Stew
ard section 28 application [[1988] 3 F.C. 452
(C.A.)], did appear before us at the hearing of this
motion as a courtesy to the Court. He advised us
that he would not be making any representations
on the motion before us, but was making himself
available in the event the Court wished to address
any questions to him.
In support of his application, Mr. Macintosh
(hereinafter Macintosh) filed an affidavit contain
ing some 58 paragraphs. Attached to the affidavit
were some 13 exhibits. The relevant facts as
deposed to by Macintosh may be summarized as
follows. Macintosh had been employed since Sep-
tember, 1984, with the law firm of John Taylor
and Associates of Vancouver (hereinafter the John
Taylor firm). From 1985 onwards, he was
involved, from time to time, with various legal
affairs arising from the immigration problems of
Charles Chadwick Steward (hereinafter Steward).
Steward is the applicant in the section 28 applica
tion which was proceeding before the Court when
the situation developed which gave rise to these
contempt proceedings.
On October 7, 1987, Adjudicator W. Osborne,
issued a deportation order against Steward after
completing an immigration inquiry. On October 8,
1987, Macintosh filed with this Court the section
28 application to review and set aside the deporta
tion order made against Steward and referred to
supra. By order dated December 2, 1987, the
Judicial Administrator of the Court set the within
section 28 application down for hearing at Van-
couver, B.C. on February 11, 1988 at 10:00 a.m.
On January 5, 1988, Mr. John Taylor, the prin
cipal of the John Taylor law firm announced that
he was retiring and that all associates, including
Macintosh, would be terminated effective January
31, 1988. On February 2, 1988, Macintosh attend
ed some portions of a meeting between Mr. John
Taylor and Steward. During that meeting there
was a discussion of fees payable to. Mr. Taylor for
his continued efforts on behalf of Steward. There
was disagreement between Mr. Taylor and Stew
ard and, as a consequence, Mr. Taylor advised
Steward at the meeting that the John Taylor law
firm would no longer represent him. On February
3, 1988, an associate of Steward's asked Macin
tosh to represent Steward independently of the
John Taylor law firm. Macintosh advised this
associate that he was going to take several days to
think about his future and whether or not he would
be returning to the John Taylor law firm. On
Sunday, February 7, 1988, Macintosh met with
John Taylor for a discussion concerning further
employment and, alternatively, the possibility of
purchasing the practice. John Taylor invited
Macintosh to return to work for the firm. Macin
tosh returned to work on Monday, February 8,
1988 but the exact terms of employment had not
been formalized. On that same day, Steward
called Macintosh who informed him that he had
been re-employed by the John Taylor firm, and,
thus, pursuant to the advice given to Steward by
John Taylor at the meeting of February 2, 1988,
he, Macintosh, could not act for Steward.
On February 9, 1988, an employee agreement
was reached between John Taylor and Macintosh
whereby Macintosh was to be paid only for those
files assigned to him. It was also agreed that
Macintosh would not be handling any of his previ
ous files pending review and possible reassignment
of those files by Mr. Taylor.
On February 10, 1988, Macintosh was required
to travel to San Francisco on firm business. He
arrived back at his home in Vancouver at approxi
mately 11:30 p.m. on February 10. On the morn
ing of Thursday, February 11, he went to the
office where he revised a notice of discontinuance
in another Federal Court of Appeal matter. He
then attended at the sittings of the Federal Court
of Appeal ungowned. He entered the courtroom,
approached the bar and spoke to Mr. Mitchell
Taylor, a solicitor with the Department of Justice
who was acting in the Federal Court of Appeal
matter which was being discontinued and who
consented to the notice of discontinuance in that
file. Macintosh then deposes (paragraph 35):
That while I was in the Courtroom I noticed Mr. Steward
approaching the counsel area while Mr. Justice Mahoney was
reviewing an affidavit provided by Mr. Steward. As Mr. Taylor
had conduct of the matter I did not think anything of Mr.
Steward's being in Court and assumed that Mr. Taylor had
taken care of the matter.
Macintosh then deposes that he returned to the
office where Mr. John Taylor's secretary showed
him a notice which she had prepared indicating
that the John Taylor law firm was no longer acting
for Steward which notice was going to be filed in
the Federal Court Registry.
Macintosh further deposes that, at about 11:15
a.m., he was served by Mr. Charles E. Stinson, a
Registry Officer of the Federal Court, with an
order on "Federal Court Trial Division letter
head." This order is attached as Exhibit H to
Macintosh's affidavit. The copy served on Macin
tosh on February 11, 1988, does, indeed, carry the
heading "Federal Court of Canada Trial Divi
sion." However, the Coram is shown as The Hon
ourable Mr. Justice Mahoney, The Honourable
Mr. Justice Hugessen and the Honourable
Madame Justice Desjardins. The original show
cause order signed by Mr. Justice Mahoney for the
Court was entitled in the Federal Court of Appeal.
Macintosh deposes, further, (paragraph 39):
That at no time was I advised by Mr. Stinson or by any other
representative of the Court of my rights to counsel under the
Canadian Charter of Rights and Freedoms.
Mr. John Taylor and Macintosh both appeared
before the Federal Court of Appeal at 2:30 p.m. on
February 11, 1988, in response to the show cause
order. Pursuant to the hearing at that time, the
Court found that Mr. John Taylor was not in
contempt of court. It also found, however, that
Macintosh was in contempt of court and he was
condemned to pay a fine of $300. The Court
further directed the Registry to transmit the
record of the contempt proceedings to the Law
Society of British Columbia.
At the commencement of the oral hearing of
this motion before us, the Court raised, as a
threshold issue, the question of the Court's juris
diction to hear the application.
Counsel's submission was to the effect that the
Court has jurisdiction to reopen any matter where
there are breaches of natural justice. In his view,
this authority is either expressly or implicitly
derived from the provisions of paragraph 52(a) of
the Federal Court Act [R.S.C. 1970 (2nd Supp.),
c. 101.' Moreover, says he, the decisions of this
Court in New Brunswick Electric Power Commis
sion v. Maritime Electric Company Limited,
[1985] 2 F.C. 13 (C.A.) and in Gill v. Canada
(Minister of Employment and Immigration),
[1987] 2 F.C. 425 (C.A.) support his view that
this Court has authority to reopen in the circum
stances at bar. It was his submission that the
Court breached the principles of natural justice
because of the lack of proper notice for the con
tempt hearing. In his view, the summary manner
in which the proceeding was conducted was a
breach of natural justice. He said that this was not
a case of purported contempt in the face of the
Court and, thus, it need not have been dealt with
on the same day. He alleged a breach of section 7
of the Charter [Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] since Macintosh could have had his liberty
deprived of in a manner not in accordance with the
principles of fundamental justice. He further sub
mitted that the February 11 contempt proceeding
was in breach of section 11 of the Charter since
Macintosh was deprived of a fair hearing. Addi-
1 Paragraph 52(a) reads:
52. The Court of Appeal may
(a) quash proceedings in cases brought before it in which
it has no jurisdiction or whenever such proceedings are not
taken in good faith;
tionally, he said that the contempt proceedings
were in breach of section 10 of the Charter
because of the Court's failure to inform Macintosh
of his right to retain and instruct counsel. His
submissions also included an allegation that the
court contempt proceeding on February 11, 1988
violated paragraphs 1(a), 2(c)(ii) and 2(e) of the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III].
I have carefully considered the Gill case and the
New Brunswick Electric Power case and have
concluded that neither case supports the view that
this panel of the Federal Court of Appeal would
have jurisdiction to reopen a matter dealt with and
disposed of by another differently constituted
panel of the same Court. The Gill case was a
section 28 application brought against a decision
of the Immigration Appeal Board in which the
Board refused to reopen an application for redeter-
mination of Convention refugee status. The pas
sage relied on was a quotation from the reasons of
Le Dain J. (as he then was) in this Court's deci
sion in Woldu v. Minister of Manpower and
Immigration, [1978] 2 F.C. 216, at page 219
where he stated:
Notwithstanding the general principle, affirmed in the
Lugano case, that an administrative tribunal does not have the
power, in the absence of express statutory authority, to set aside
its decision, there is judicial opinion to suggest that where a
tribunal recognizes that it has failed to observe the rules of
natural justice it may treat its decision as a nullity and rehear
the case ....
Mr. Justice Le Dain cited, inter alia, the case of
Ridge v. Baldwin, [1964] A.C. 40 (H.L.), at page
79 and Posluns v. Toronto Stock Exchange et al.,
[1968] S.C.R. 330, at page 340 in support of this
proposition. The Gill and Woldu cases were both
section 28 applications in respect of refusals by the
Immigration Appeal Board to reopen and rehear a
matter. The House of Lords decision in Ridge v.
Baldwin related to the powers of a "watch com
mittee" to dismiss a chief constable under the
provisions of the Municipal Corporations Act
[1882 (U.K.) 45 & 46 Vict., c. 50]. The Posluns
case had to do with the granting of a rehearing of
a disciplinary action by the Board of Governors of
a stock exchange. All four cases referred to supra,
dealt with the powers of an administrative or a
quasi-judicial tribunal to reopen its own proceed
ings. In so far as the New Brunswick Electric
Power case is concerned, that case is not helpful
because it relates to the power of this Court to
order a stay of execution of an order of the Na
tional Energy Board pending an appeal to this
Court.
In my view, the situation in the motion now
before us is quite different from that in any of the
jurisprudence relied upon supra. The panel of the
Court which heard the contempt matter concern
ing Macintosh on February 11, 1988, was a duly
and properly constituted panel of the Federal
Court of Appeal. As such, it had inherent power to
deal with alleged contempt. This power is part of
the common law and has developed as a part of the
inherent jurisdiction of a Superior Court. This
principle is enshrined in the common law and was
recently restated by McIntyre J. in the Vermette
case: 2
The power to deal with contempt as part of the inherent and
essential jurisdiction of the courts has existed, it is said, as long
as the courts themselves (see Fox, The History of Contempt of
Court, 1972, p. 1). This power was necessary, and remains so,
to enable the orderly conduct of the court's business and to
prevent interference with the court's proceedings.
Accepting then the view that the panel sitting on
February 11, 1988, had jurisdiction to hear and
dispose of the contempt matter relating to Macin
tosh, is there any possible mechanism under which
Macintosh is entitled to ask for a reopening or a
review of the contempt order made against him on
February 11?
2 R. v. Vermette, [1987] 1 S.C.R. 577, at p. 581.
A perusal of the Rules of this Court [Federal
Court Rules, C.R.C., c. 663] reveals the general
rule to the effect that an order is final, subject to
an appeal, once it is signed by the presiding Judge
(Rule 337(4)). Rule 1733 provides an exception to
that general rule in cases where a matter arises or
is discovered subsequent to the making of the
order or on the ground of fraud. Counsel did not
rely on Rule 1733 nor was there any possible
factual basis shown for the application of that
Rule. Rule 337(5) allows the Court to reconsider
the terms of a judgment or order to ensure that it
accords with the reasons or where there has been
an accidental omission. Counsel did not rely,
either, on Rule 337(5). In any event, any applica
tion under Rule 337(5) must be made to the Court
"as constituted at the time of the pronouncement".
As noted supra this application to reopen was
made to an entirely different panel of the Court.
Counsel for Macintosh also relied on R. v.
Larsen (1974), 19 C.C.C. (2d) 574, a decision of
the Ontario Court of Appeal. That case does not
address the jurisdictional problem because it was
an appeal to the Court of Appeal from a finding of
contempt by a Trial Judge in a criminal trial
pursuant to the Criminal Code [R.S.C. 1970, c.
C-34]. Likewise, the decision of the Ontario Court
of Appeal in Regina v. Carter (1975), 28 C.C.C.
(2d) 220 is not relevant because it is also a deci
sion of the Court of Appeal in respect of a convic
tion for contempt of a solicitor who failed to
appear to represent a client at a criminal trial
before a Provincial Court Judge.
In both of those cases, there can be no question
of the jurisdiction of the Court of Appeal to set
aside a conviction for contempt in a lower court.
That situation, however, is a far cry from the
circumstances at bar. In this motion, one panel of
the Federal Court of Appeal is being asked, in
effect, to review and set aside a decision of another
panel of the same Court. I know of no basis upon
which we could exercise jurisdiction in these
circumstances.
Counsel for Macintosh also referred to the fact
that the copy of the show cause order served upon
him was entitled in the Trial Division of this
Court. Thus, strictly speaking, the notice given to
him to appear was a nullity, the effect of which
would be to vitiate all subsequent proceedings.
Counsel supported this submission by a reference
to the remarks of Riddell J. in Dalton v. Toronto
General Trusts Corporation (1908), 11 O.W.R.
667 (Weekly Ct.), at page 668. The portion of the
reasons relied on reads:
Sequestration is an extraordinary and a drastic remedy, and
the right to it is stricti juris if not strictissimi juris, and no
assistance should be given a person desiring to enforce supposed
rights in this way. And especially is this so when the applicant
states that he is insisting upon his strict rights.
The show cause order that was served on Macin
tosh described the composition of the Court as
consisting of three justices of the Federal Court of
Appeal. The order requested his appearance before
the Court at 7th Floor, 700 West Georgia Street,
Vancouver. Macintosh appeared at the proper time
and place. I am satisfied that he was not misled in
any way by the apparent typographical error in the
copy of the show cause order served upon him,
which, as noted supra, was properly entitled in the
Federal Court of Appeal. Thus, if there was a
technical defect in the show cause order served on
Macintosh, it was not prejudicial in any way and,
in any event, such defect was waived by the
appearance of Macintosh at the proper time and
place and before the panel of this Court that
issued the order. For these reasons then, I think
this submission to be devoid of merit.
The final submission by counsel for Macintosh
was to the effect that if this panel of the Court was
of the view that it had no jurisdiction to proceed to
hear this motion, he would request that he be given
leave by this panel to appeal our decision to the
Supreme Court of Canada pursuant to the provi
sions of subsection 31(2) of the Federal Court
Act. 3
The jurisprudence of this Court has established
that this Court will grant such leave in only very
narrow circumstances. The general rule was clear
ly stated by Chief Justice Jackett in Minister of
National Revenue v. Creative Shoes Ltd., [1972]
F.C. 1425, at page 1428:
In our opinion, when there is an application for leave to
appeal in a case where the question involved is not obviously
one that ought to be submitted to the Supreme Court for
decision, this Court must resist the temptation to grant leave
merely to avoid possible criticism. It must not grant leave
unless it is positively satisfied that the question involved is one
that "ought" to be decided by the ultimate Court of Appeal.
Having regard to the extent and the importance of the respon
sibilities of the Supreme Court of Canada, a lower court should
not grant leave to appeal to that court in any but obvious cases,
because that court is in a position to make an overall selection
of the cases that should be decided by it having regard to its
case load and can only do so if lower courts exercise a respon
sible discretion in deciding when to grant leave to appeal. The
Supreme Court of Canada can grant leave in any case even
though leave has been refused by the Court of Appeal. The
Supreme Court of Canada cannot withdraw leave once it has
been granted by the Court of Appeal.
In my view, the circumstances at bar do not
present such an obvious case as to justify this
Court granting leave to appeal. Likewise, I do not
think that the jurisdictional question raised herein,
while doubtless very important to the applicant, is
of such national importance as to warrant the
3 Subsection 31(2) reads:
31....
(2) An appeal to the Supreme Court lies with leave of the
Federal Court of Appeal from a final or other judgment or
determination of that Court where, in the opinion of the
Court of Appeal, the question involved in the appeal is one
that ought to be submitted to the Supreme Court for
decision.
granting of leave by this Court. 4
In any event, as was pointed out in Creative
Shoes, supra, the Supreme Court can grant leave
even though this Court has refused such leave.
Accordingly and for all of the above reasons, I
would dismiss the within motion.
MARCEAU J.: I concur.
LACOMBE J.: I agree.
4 Compare Prassad v. Minister of Employment and Immi
gration, [1985] 2 F.C. 81 (C.A.).
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.