A-870-88
Joseph Toth (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: TOTH V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Heald, Mahoney and Stone
JJ.—Toronto, October 17; Ottawa, October 28,
1988.
Immigration — Deportation Jurisdiction of Immigration
Appeal Board — Stay of deportation order — Appeal against
Board's decision dismissing application to reconsider order
1971 removal order be executed as soon as practicable —
Appellant in Canada since admission as landed immigrant at
age 15 — In 1971, convicted of Criminal Code offence —
Deportation ordered under Immigration Act, R.S.C. 1952, c.
325 — Appeal against deportation order dismissed in 1975
and stay of execution granted — In 1980, stay cancelled
Leave to appeal Board's 1980 decision refused — In 1988,
Board declined further stay of execution — Board did not err
in exercising equitable jurisdiction in refusing to again stay
execution — Whether Board had, in 1988, jurisdiction to
entertain appeal as to validity of deportation — Whether
Court could deal with validity of order when appellant failing
to raise issue at 1988 Board hearing — Reconsideration of
stay properly before Board because order made under previous
Immigration Act and order had not been executed — Jurisdic
tion of Board continuous as entitled to reopen appeal until
deportation order executed — Under previous legislation
Board able to order stay of execution only after appeal against
order dismissed and power to quash order after dismissal of
appeal contingent on subsisting stay — As stay not subsisting
in 1988, no continuing power from previous legislation permit
ting Board to reconsider validity of deportation order
Under present legislation Board's only power to quash stayed
deportation order under s. 76(3)(b)(ii) — Power must be
exercised in conjunction with cancellation of stay, not by
independent reconsideration of validity of deportation order.
This was an appeal against the Immigration Appeal Board's
dismissal of an application to reconsider its order that a remov
al order made in 1971 be executed as soon as reasonably
practicable. The appellant, Hungarian born and a British citi
zen, had resided in Canada since admission as a landed immi
grant at age 15. In January 1971, he was convicted of an
offence under the Criminal Code and was subsequently ordered
deported under the Immigration Act, R.S.C. 1952, c. 325. An
appeal against the deportation order was dismissed and the
order was stayed from time to time until 1980 when it was
ordered to be executed. Leave to appeal the Board's 1980 order
was refused. At a subsequent review hearing allowed by the
vice-chairman, the only issue argued was whether the Board
should exercise its equitable jurisdiction to again order a stay of
execution. In March of 1988, the Board declined a further stay
of execution of the deportation order.
Held, the appeal should be dismissed; the stay of execution of
the deportation order granted by this Court should be vacated.
The Board had not erred in the exercise of its equitable
jurisdiction in holding that with regard to all the circumstances,
a further stay of execution should be denied.
Prior to considering whether the order was valid, it would
have to be demonstrated that the Board had, in 1988, jurisdic
tion to entertain an appeal on the same issue. Reconsideration
of the stay was properly before the Board as the deportation
order had been made under the previous Immigration Act and
had not been executed. The equitable jurisdiction of the Board
under subsection 15(1) of the Immigration Appeal Board Act
was continuous and need not be exercised once and for all.
Under the previous Immigration Act, a stay of execution was
only ordered by the Board after it had dismissed the appeal
against the order and its power to quash an order after dismis
sal of the appeal was contingent on a subsisting stay. As the
stay was not, in 1988, subsisting there was no continuing power
which could be derived from the previous Act allowing the
Board to reconsider the validity of the deportation order. The
Board's only power to quash a deportation order which had
been stayed was under subparagraph 76(3)(b)(ii) of the present
Immigration Act. This power must be exercised in conjunction
with the cancellation of the stay, not by way of an independent
reconsideration of the validity of a deportation order. The
appellant having declined to pursue the question of the order's
validity, the Board and this Court were without jurisdiction to
consider this issue as a ground of appeal.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C. 1970, c. C-34.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, R.S.C. 1952, c. 325, s. 18(1)(e)(ii).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 72(1) (as
am. by S.C. 1984, c. 21, s. 81), 75(1), 76(1),(3)(b)(ii).
Immigration Appeal Board Act, S.C. 1966-67, c. 90,
s. 15(1)(a),(4)(a)•
CASES JUDICIALLY CONSIDERED
APPLIED:
Grillas v. Minister of Manpower and Immigration,
[1972] S.C.R. 577; Mercier v. Canada (1985), 62 N.R.
73 (F.C.A.).
REFERRED TO:
Lyle v. Minister of Employment and Immigration,
[ 1982] 2 F.C. 821 (C.A.).
COUNSEL:
F. J. O'Connor and Barbara L. Jackman for
appellant.
Michael W. Duffy for respondent.
SOLICITORS:
O'Connor, Ecclestone & Kaiser, Kingston, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal, by leave grant
ed on consent, by a landed immigrant against a
decision of the Immigration Appeal Board which
dismissed an application to reconsider its order
that a removal order made July 27, 1971, be
executed as soon as reasonably practicable. The
appellant was born in Hungary in 1952. He moved
with his family to Great Britain in 1956 and
became a citizen of the United Kingdom. He was
admitted to Canada with his parents as a landed
immigrant at age 15 and has lived in Canada ever
since. In January, 1971, he was convicted under
the Criminal Code [R.S.C. 1970, c. C-34] of
unlawfully taking a motor vehicle (joyriding) and
in June 1971, of attempted theft of an automobile.
The deportation order made under the Immigra
tion Act, R.S.C. 1952, c. 325, as amended, herein-
after "the old Act", was based on the finding that
he was a person described in subparagraph
18(1)(e)(ii), that is, "any person, other than a
Canadian citizen or a person with Canadian dom
icile, who ... has been convicted of an offence
under the Criminal Code". The conviction for
attempted theft was subsequently set aside on
appeal.
An appeal against the deportation order was
taken and, on August 19, 1975, was dismissed.
However, execution of the deportation order was
stayed for two years pursuant to paragraph
15(1)(a) of the Immigration Appeal Board Act,
S.C. 1966-67, c. 90. On April 20, 1976, after his
conviction of further criminal offences, the Board
reviewed the case. The stay of execution was not
revoked but an oral review was directed to take
place August 18, 1977, upon expiration of the stay.
It adjourned pending disposition by the criminal
courts of appeals from further convictions and
sentences. Efforts to resume were frustrated by the
inability of the appellant to attend before the
Board, he being in custody either awaiting trial or
serving sentences on various dates fixed for the
hearing. Execution of the deportation order was
further stayed from time to time. Eventually, the
oral review was conducted on June 9, 1980, and,
by order dated June 25, 1980, the Board cancelled
the stay of the deportation order and directed that
it be executed as soon as practicable.
Meanwhile, on April 10, 1978, the Immigration
Act, 1976, S.C. 1976-77, c. 52, hereinafter "the
present Act", had come into force. It repealed both
the old Act and the Immigration Appeal Board
Act. One difference between the present legislative
scheme and the previous one is that, under subsec
tion 75(1) of the present Act, a stay of execution is
an alternative disposition of an appeal to either
allowing or dismissing it, while under subsection
15(1) of the Immigration Appeal Board Act, dis
missal was a condition precedent to a stay.
Another significant difference is that the joyriding
conviction, which supported the making of a
deportation order under the old Act, would not
have supported the making of a deportation order
under the present Act. Leave to appeal the Board's
order of June 25, 1980, was refused February 12,
1981, (Court file 80-A-325) and a section 28
[Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10] application attacking it was dismissed July 24,
1981, when the appellant, having discharged his
counsel, failed to appear (Court file A-428-80).
On September 1, 1987, a vice-chairman allowed
the appellant's application to the Board to again
review the deportation order.
At the review hearing, the appellant expressly
declined to challenge the validity of the deporta
tion order being of the view that, even if it was
invalid, his subsequent convictions would support
the making of another deportation order under the
new Act. The only issue argued was whether the
Board should exercise its so-called "equitable"
jurisdiction to again stay execution. He did, never
theless, express his wish to reserve the right to
attack its validity if the Board did not exercise its
equitable jurisdiction in his favour.
By order made March 29, 1988, the Board
declined to order a further stay of execution of the
deportation order. This appeal is taken from that
decision. The appellant asserts two grounds of
appeal: that the Board erred, firstly, in the exercise
of its equitable jurisdiction by failing to conclude
that, having regard to all the circumstances, the
appellant ought not be removed from Canada and,
secondly, in not holding that the deportation order
was null and void since the conviction on which it
is founded is not a conviction on which a deporta
tion order may be founded under the present Act.
There is no merit to the first ground of appeal
and it requires little comment. The Board
concluded:
It is clear that since 1980 the appellant has successfully
defied all the efforts of Canadian authorities to remove him by
utilizing to the fullest the financial resources of his father and
the generosity of the judicial system. This he was fully entitled
to do. But what is peculiarly cynical and evil about this
appellant is his deliberate commission of criminal offences and
use of the justice and penitentiary system in order to avoid the
execution of Canada's immigration laws. In the Board's view
this appellant has pushed the tolerance and generosity of
Canadian society and justice to the limit and beyond. Indeed,
by his conduct, he has mocked and abused it. Any reasonable
member of Canadian society reviewing this 17-year-old saga
would conclude that he has provided a living example that,
given enough financial resources, enough motions and appeals
and enough criminal laws to be broken, anyone can avoid
deportation from Canada forever. This is outrageous.
While lawful recourse to the courts in an effort to
forestall execution of a deportation order is no
reason for the Board to decline the favourable
exercise of its equitable discretion, that was by no
means the only conduct which the Board con
sidered. There was ample evidence, much of it out
of the appellant's own mouth, which properly
weighed against another stay. Included was his
statement:
You know, it might sound sick to you but the reason I kept
getting in trouble because that was the only way I knew I would
not get deported.
It might sound a little sick but that's what was in my head. Oh,
I'll get charged, they cannot deport me, and 1 kept doing this
and doing this.
It is apparent that the Board weighed all of the
evidence both for and against again staying execu
tion of the deportation order. It cannot be said to
have erred in exercising its discretion as it did.
In arguing that the deportation order is null and
void, the appellant relies on this Court's decision in
Lyle v. Minister of Employment, and Immigra
tion, [1982] 2 F.C. 821 (C.A.). It seems to me,
however, that before its validity can be considered,
it must be shown, first, that the Board had, in
1988, jurisdiction to entertain an appeal as to the
validity of the deportation order and, secondly if
so, that notwithstanding the appellant's refusal to
deal with its validity at the 1988 hearing, that
validity remains a subject properly to be dealt with
by this Court on an appeal from the Board's
decision consequent upon that hearing.
There is no doubt that the reconsideration of the
stay was properly before the Board. That is so
because the deportation order had been made
under the old Act and had not been executed.
In Grillas v. Minister of Manpower and Immi
gration, [ 1972] S.C.R. 577, the Supreme Court of
Canada held [at page 590] that the equitable
jurisdiction under subsection 15(1) of the Immi
gration Appeal Board Act "is a continuing juris
diction, and not one which must be exercised once
and for all" and, at page 582, that:
... until a deportation order has actually been executed, the
Board is entitled, as it did in this case, to reopen an appeal,
hear new evidence and, if it sees fit to do so, to revise its former
decision and exercise its discretion under s. 15 to allow an
appellant to remain in Canada.
In coming to that conclusion, the Supreme Court
recognized that, in the absence of a statutory
power to reconsider a final order, a tribunal has no
such power except (1) where there has been a slip
in drawing up the order or (2) where there has
been an error in expressing its manifest intention.
Recent jurisprudence has added a third category:
(3) where there has been a manifest denial of
natural justice in the proceeding that resulted in
the order. None of those exceptions apply in the
present circumstances. The continuing equitable
jurisdiction was found in the Immigration Appeal
Board Act. That Act provided:
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation pursuant
to paragraph 14(c), it shall direct that the order be executed as
soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident at
the time of the making of the order of deportation, having
regard to all the circumstances of the case, ...
direct that the execution of the order of deportation be stayed,
or quash the order or quash the order and direct the grant or
entry or landing to the person against whom the order was
made.
(4) Where the execution of an order of deportation
(a) has been stayed pursuant to paragraph (1)(a), the Board
may at any time thereafter quash the order;
There is no other provision from which an ongoing
jurisdiction to review an earlier decision as to a
deportation order's validity might be inferred. In
the scheme of the previous legislation, a stay of
execution could only be ordered by the Board after
it had dismissed the appeal against the order and
its power to quash an order after dismissal of the
appeal was contingent on a subsisting stay. The
stay here was not, in 1988, subsisting. It cannot, in
the present case, be said that there was a continu
ing power, derived from the previous legislation by
analogous application of the Grillas decision, per
mitting the Board to reconsider the validity of the
deportation order. Such power, if it is to be found,
must be found in the present Act whose pertinent
provisions follow.
72. (1) Where a removal order is made against a permanent
resident, other than a person with respect to whom a report
referred to in subsection 40(I) has been made, or against a
person lawfully in possession of a valid returning resident
permit issued to him pursuant to the regulations, that person
may appeal to the Board on either or both of the following
grounds, namely,
(a) on any ground of appeal that involves a question of law or
fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circum
stances of the case, the person should not be removed from
Canada.
75. (I) The Board may dispose of an appeal made pursuant
to section 72
(a) by allowing it;
(b) by dismissing it; or
(c) in the case of an appeal pursuant to paragraph 72(1)(b)
or 72(2)(d), by directing that execution of the removal order
be stayed.
76. (1) Where the Board allows an appeal made pursuant to
section 72, it shall quash the removal order that was made
against the appellant and may
(a) make any other removal order that the adjudicator who
was presiding at the inquiry should have made; or
(b) in the case of an appellant other than a permanent
resident, direct that he be examined as a person seeking
admission at a port of entry.
(2) Where the Board disposes of an appeal by directing that
execution of a removal order be stayed, the person concerned
shall be allowed to come into or remain in Canada under such
terms and conditions as the Board may determine and the
Board shall review the case from time to time as it considers
necessary or advisable.
(3) Where the Board has disposed of an appeal by directing
that execution of a removal order be stayed, it may, at any
time,
(a) amend any terms and conditions imposed under subsec
tion (2) or impose new terms and conditions; or
(b) cancel its direction staying the execution of a removal
order and
(i) dismiss the appeal and direct that the order be executed
as soon as reasonably practicable, or
(ii) allow the appeal and take any other action that it
might have taken pursuant to subsection (1).
The relevant effect of the new Act appears to be
identical to that of the former legislation. The only
power to quash a deportation order which has been
stayed is found in subparagraph 76(3)(b)(ii) as it
incorporates subsection 76(1). It is a power that
must be exercised in conjunction with the cancella
tion of the stay, not by way of an independent
reconsideration of the validity of the deportation
order. The stay was cancelled in 1980. There was
no subsisting stay in 1988 which would have pro
vided a basis for jurisdiction to review the validity
of the deportation order. I accordingly conclude
that, in 1988, the Immigration Appeal Board was
without jurisdiction to reconsider the validity of
the deportation order as a discrete ground of
appeal.
If the Board had been satisfied that the deporta
tion order was null and void, that might well have
been a relevant fact to be taken into account in the
exercise of its ongoing equitable jurisdiction. How
ever, since the appellant declined to pursue the
question before it, the Board cannot be faulted for
failing to deal with it. As was said by the Court in
Mercier v. Canada (1985), 62 N.R. 73 (F.C.A.) at
page 74:
When sitting in appeal of the Trial Division, this court sits as
a court of appeal whose function is to decide whether the issues
presented at trial were properly disposed of. It is not our duty
to determine if some other issues which might have been raised
could have resulted in a different outcome if the necessary
factual basis had been established.
That observation is as true of an appeal from the
Immigration Appeal Board as from the Trial Divi
sion. Finally, out of an abundance of caution and
at the possible risk of stating the obvious, nothing
herein is intended to indicate a concluded opinion
as to whether the deportation order is null and void
or even voidable on application of the Lyle decision
or otherwise.
I would dismiss this appeal. The stay of execu
tion of the deportation order imposed by this
Court should be vacated.
HEALD 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.