Aly Abdel Hafez Aly (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Kerr JJ.—Ottawa, December 17 and 23, 1971.
Practice—Judicial Review—Appeal—Simultaneous appeal
and application to set aside decision of federal tribunal—
Terms—Federal Court Act, s. 28, Rule 1314.
Where there is an application under s. 28 of the Federal
Court Act for judicial review of a decision by a federal
tribunal and also a right of appeal from that decision if leave
to appeal is granted by the Court of Appeal, leave to appeal
should be granted "as a matter of course, in the absence of
special circumstances, on terms (a) that the appeal is
launched forthwith, (b) that the appellant forthwith seek an
order under Rule 1314 joining the two proceedings and
giving directions as to the conduct of the joint proceedings,
and (c) that the joint proceedings be heard and determined
without delay and in a summary way".
APPLICATIONS (1) for leave to appeal to
the Court of Appeal from a decision of the
Immigration Appeal Board dismissing an appeal
from a deportation order, and (2) under s. 28 of
the Federal Court Act to review and set aside
the decision of the Immigration Appeal Board
on the grounds of failure to observe the princi
ples of natural justice and otherwise acting in
excess of its jurisdiction.
Y. A. George Hynna for appellant.
I. Whitehall and W. E. Conklin for
respondent.
JACKETT C.J. (orally)-.Where there is an
application under section 28 of the Federal
Court Act in respect of a decision or order and
there is a right of appeal from that decision "if
leave to appeal is granted" by this Court, I
would normally favour granting leave to appeal
as a matter of course, in the absence of special
circumstances, on terms
(a) that the appeal is launched forthwith,
(b) that the appellant forthwith seek an order
under Rule 1314 joining the two proceedings
and giving directions as to the conduct of the
joint proceedings, and
(c) that the joint proceedings be heard and
determined without delay and in a summary
way.
My reason for this view is that, when I read
section 28 and section 29 of the Federal Court
Act together, it is my conclusion that the statu
tory intention is
(a) that no right of appeal previously existing
was to be in any way cut down by those
sections (except for the substitution of the
Federal Court of Appeal for the Supreme
Court of Canada effected by the Schedule to
the Federal Court Act), and
(b) that the right of review provided by sec
tion 28 is a minimum right to be available to
every party "directly affected by a decision
or order".
This is accomplished by restricting the section
28 right of review only "to the extent" that the
order or decision "may be ... appealed".
Furthermore, in my view, this modern legisla
tion should be interpreted to eliminate all proce
dural technicalities and difficulties that are not
absolutely required by the statutory provisions
in providing to an aggrieved person such relief
as falls within the ambit of the jurisdiction
conferred on the Court. Refusal of leave, where
there is no apparently arguable question,
ordinarily serves the purpose of eliminating
unjustified delays and expense. Where, how
ever, the applicant is exercising a right to have
the order or decision reviewed under section 28
in any event, in my view, leave should be grant
ed so that the Court, when it does review the
matter, can deal with the substantive questions
involved without concerning itself with techni
cal limitations within the ambit of the
jurisdiction.
This does not mean, for example, that leave
would be granted automatically if there were an
application to quash the section 28 proceedings
on the ground that they were not taken in good
faith or fell outside the jurisdiction of the
Court. See section 52 of the Federal Court Act.
In my view, therefore, leave should be grant
ed in this case on the following terms:
(a) that the appeal is launched forthwith,
(b) that the appellant forthwith seek an order
under Rule 1314 joining the two proceedings
and giving directions as to the conduct of the
joint proceedings, and
(c) that the joint proceedings be heard and
determined without delay and in a summary
way.
* * *
THURLOW J.—I agree with what has been
said as to the principles on which leave to
appeal should be granted in cases where there is
a concurrent application to review under sec
tion 28 of the Federal Court Act and I also
agree with the result which has been proposed.
* * *
KERR J. concurs.
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.