Durocher Lariveau (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, November 8, 1971.
Jurisdiction—Practice—Appeal from deportation order by
Immigration Appeal Board—Stay of deportation order
pending appeal—No power to grant—Not "practice and
procedure" matter—Extension of time for leave to appeal—
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 23—
Federal Court Rule 5.
On August 7, 1971, the Immigration Appeal Board con
firmed a deportation order previously made against appel
lant in Montreal. Appellant applied for an extension of time
for requesting leave to appeal from the deportation order
and also for a stay of execution of that order. On September
8, 1971, the Chief Justice granted the extension of time
pursuant to s. 23 of the Immigration Appeal Board Act, but
referred the application for a stay to the Court of Appeal.
Held, dismissing the motion for a stay, the Court has no
power to make such an order. A stay of a deportation order
is not a matter of practice and procedure within the meaning
of Federal Court Rule 5.
MOTION.
Harry Blank for appellant.
Geo. Roméo Léger for respondent.
JACKETT C.J.—I have read the reasons of
Pratte J. and I concur.
I would add a few words on two points.
Firstly, in view of the fact that the meaning
of Rule 5 is a matter of general interest, I shall
explain in my own words my reason for holding
that this Rule does not apply to a matter such as
that before the Court. As I understand it, this
Rule authorizes the Court to determine the
"practice" and "procedure" to be followed in a
"proceeding in the Court" concerning which
there is a gap in the Rules. We are not con
cerned here with a question concerning the
"practice" or "procedure" to be followed in a
proceeding in this Court. In fact, the Court is
being asked to grant at this time, on a tempo
rary basis, a remedy which it may only grant
after an appeal is heard.'
Secondly, I feel I must point out, though it is
not relevant, that counsel for the respondent,
who have appeared before me in this and other
similar cases, intimated that a deportation order
against which an appeal has been lodged is
ordinarily not implemented provided the appel
lant acts with despatch.
THURLOW J.—I concur with Pratte J.
PRATTE J.—On August 7, 1971 the Immigra
tion Appeal Board confirmed a deportation
order which had been made against the appel
lant on October 21 preceding. The appellant
wishes to appeal from this decision, as he is
permitted to do by s. 23(1) of the Immigration
Appeal Board Act, R.S.C. 1970, c. I-3, which,
as amended by the Federal Court Act, S.C.
1970, c. 1, s. 64(3), reads as follows:
23. (1) An appeal lies to the Federal Court of Appeal on
any question of law, including a question of jurisdiction,
from a decision of the Board on an appeal under this Act if
leave to appeal is granted by that Court within fifteen days
after the decision appealed from is pronounced or within
such extended time as a judge of that Court may, for special
reasons allow.
Appellant has not yet requested leave to
appeal from the decision he is challenging.
However, he has made a motion requesting,
first, that the time allowed for presentation of
the application for leave to appeal be extended,
and also, that respondent be ordered to stay
execution of the deportation order. The Chief
Justice, who heard this motion on September
8th last, allowed it in part. He granted the
extension of time requested; as to the applica
tion for a stay of execution, he ordered that it
be incorporated in a new motion to be submit
ted in writing, in the manner provided in Rule
324, so that it could be decided by a bench of
three judges. In accordance with this decision
appellant submitted a new motion, which is now
before the Court, the significant passages of
which are as follows:
[TRANSLATION] IN VIEW OF Rule 5 of the General Rules
and Orders of the Federal Court of Canada;
WHEREAS no provision of an Act of the Parliament of
Canada and no General Rule or Order of this Honourable
Court specifies the practice and procedure to be followed
concerning the stay of execution of deportation orders of
the Immigration Appeal Board (14, 15, 16 Eliz. II, c. 90) on
appeal from the decision of the Immigration Appeal Board
in conformity with s. 23 of the Immigration Appeal Board
Act (14, 15, 16 Eliz. II, c. 90), as amended by the Federal
Court Act (19 Eliz. II, 1970, c. 1, Appendix B);
WHEREAS the deportation order made against the appel
lant, and upheld by the Immigration Appeal Board, against
which the appellant proposes to appeal to this Honourable
Court, was made in the City and District of Montreal,
Province of Quebec;
WHEREAS the first paragraph of art. 497 of the Code of
Civil Procedure of the Province of Quebec reads as follows:
Saving the cases where provisional execution is ordered,
an appeal regularly brought suspends the execution of
judgment.
WHEREAS if the deportation order made against appel
lant, and upheld by the Immigration Appeal Board, was
executed before this Honourable Court had decided the
appeal entered by appellant, the latter would be prejudiced
by way of a denial of natural justice, depriving him for all
intents and purposes of his right to appeal to this Honoura
ble Court;
AND WHEREAS the appeal proceedings against the
decision of the Immigration Appeal Board brought by appel
lant in this Honourable Court are regularly brought;
FOR THESE REASONS, MAY IT PLEASE THE
COURT:
TO ALLOW this motion;
AND TO RECOGNIZE appellant's right to have the
execution of the deportation order made against him, and
upheld by the Immigration Appeal Board, stayed by the
appeal regularly brought by appellant against the said deci
sion of the Immigration Appeal Board;
As can be seen, this motion is based on Rule
5 of the Rules of this Court, which reads as
follows:
RULE 5. In any proceeding in the Court where any
matter arises not otherwise provided for by any provision in
any Act of the Parliament of Canada or by any general rule
or order of the Court (except this rule), the practice and
procedure shall be determined by the Court (either on a
preliminary motion for directions, or after the event if no
such motion has been made) for the particular matter by
analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar
proceedings in the courts of that province to which the
subject matter of the proceedings most particularly
relates,
whichever is, in the opinion of the Court, most appropriate
in the circumstances.
According to appellant, as the Rules do not
provide, in a case such as this, that the execu
tion of the order from which he intends to
appeal be stayed, the Court, in accordance with
Rule 5, should compensate for this deficiency
and, by analogy to the first paragraph of art.
497 of the Quebec Code of Civil Procedure,
order a stay of execution. This paragraph of art.
497 reads as follows:
497. Saving the cases where provisional execution is
ordered, an appeal regularly brought suspends the execution
of judgment.
Counsel for the respondent for his part, as
Rule 324 allowed him to do, submitted written
representations in which, while he challenged
that it be advisable in the present case to allow
the stay of execution applied for, he admitted
that, under Rule 5(b) of the Rules of the Court,
the Court may grant the motion by exercising,
by analogy, the powers conferred on the
Quebec Court of Appeal by art. 523 of the
Code of Civil Procedure. In accordance with
this article, the Court of Appeal
. has all the powers necessary for the exercise of its
jurisdiction and may make any order necessary to safeguard
the rights of the parties; .. .
We may note firstly that, assuming that this
motion were allowable under Rule 5, the stay of
execution requested could certainly not be
granted by an analogous application of the two
texts from the Code to which we were referred
by the parties. Indeed, art. 497 cited by appel
lant provides that "an appeal regularly brought
suspends execution"; while in this case, not
only has appellant not yet brought his appeal,
he has not so far even applied for leave to do
so. In the case of art. 523, to which we were
referred by respondent, this is a text granting
certain powers to the Quebec Court of Appeal;
clearly, the Federal Court could not exercise a
power which it does not otherwise possess,
simply because the legislature of a province has
seen fit to confer such a power on another
court.
In fact, this is not a motion which may be
allowed under Rule 5. A motion for directions
may be made under this Rule only in cases
where the Rules present a deficiency, that is, do
not specify the manner of exercising a right or
means of defence. The fact that the Rules do
not provide for a stay of execution in a case
such as the present is not a deficiency: it can be
concluded, from the absence of a rule of prac
tice on this point, simply that unless other legis
lative provisions state the contrary the deci
sions of the Immigration Appeal Board are to
be enforced notwithstanding an appeal. This
solution is perhaps open to criticism, but this is
not a deficiency which can be the basis for
submitting a motion under Rule 5.
There is, however, a much more fundamental
reason for denying the motion before us. In
fact, what the appellant is asking the Court to
do is to modify the effect of a decision deliv
ered in due form by the Immigration Appeal
Board, before he has even appealed from this
decision or requested leave to do so. It seems to
me that the Court clearly does not have the
power which appellant is asking it to exercise.
Before finishing with this case, it is perhaps
worth mentioning that the Immigration Act,
R.S.C. 1970, c. I-2, and the Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, do contain
provisions which are not completely foreign to
the problem submitted to us by the appellant.
The Immigration Act provides in s. 27 that a
deportation order (the effect of which is defined
in s. 33) may in certain circumstances be issued
by a Special Inquiry Officer, and then provides
in s. 31(1) that:
31. (1) Except in the case of a person who, pursuant to
subsection 23(1), is returned to the place whence he came
to Canada pending the decision on his appeal, an appeal
against a deportation order stays the execution of the order
pending the decision thereon.
Appeals against deportation orders are regulat
ed by the Immigration Appeal Board Act. In s.
11 it grants a person against whom an order of
deportation has been made the right to appeal
therefrom to the Board, whose decision is itself
subject to appeal to this Court under s. 23.
Section 15 of this Act, after stating that the
Board, where it dismisses an appeal against a
deportation order, shall direct that the order be
executed as soon as practicable, nevertheless
grants the Board the power to direct, in certain
specified cases, that the execution of the depor
tation order be stayed. Finally, s. 18 provides
that a person "who is being detained pending
the disposition of an appeal under this Act may
apply to the Board for his release".
I do not refer to these legislative provisions
because I feel that they apply in this case, but
merely to point out that Parliament was not
indifferent to the fate of persons wishing to
appeal from deportation orders and to stress
that these texts do not contemplate that the
Federal Court shall or may intervene in a case
such as this.
For these reasons, I feel the motion must be
denied.
It is otherwise when a stay of execution of a judgment
of the Trial Division is in question, because then the prac
tice and procedure of the Court are affected. See Rules 337
and 1213.
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.