T-1144-75
John R. Taylor (Plaintiff)
v.
The Queen and the Minister of Manpower and
Immigration and the Department of Manpower
and Immigration (Defendants)
Trial Division, Collier J.—Vancouver, April 15
and 26, 1976; Ottawa, May 7, 1976.
Immigration—Plaintiff alleging that $1,000 posted by client
as bond in favour of Crown and that by "power of attorney"
document, debt in respect of bond assigned to him—Claiming
sum wrongly paid to client—Immigration Act, R.S.C. 1970, c.
I-2, s. 17.
Plaintiff alleged that $1,000 was posted by one G, a client, as
a cash bond in favour of the Crown; that by a "power of
attorney" document, G assigned the debt in respect of the bond
to him; and that the sum ultimately and wrongly was paid to G
directly. It was conceded that G had never revoked the "power
of attorney". Defendants admit to an error in not transferring
the document along with the rest of G's file when another
departmental file was opened on G in Kamloops and also to the
fact that the Assigned Debt and Power of Attorney Payment
Regulations were not, in respect of processing of the document,
complied with. Plaintiff claimed that these documents such as
the one in question were treated by the Department as assign
ments, and not mere powers of attorney authorizing an agent to
receive, on behalf of a principal, moneys payable to the latter.
Plaintiff admitted to doubts as to the legality of such docu
ments, but claimed that the Department had insisted on using
such a document.
Held, the action is dismissed. The moneys would, in the
normal course, but for the Departmental error, have been paid
to plaintiff. His client had authorized him to apply it against
his account. However, the document was no more than an
authorization by a principal to the Department to pay the sum
to plaintiff and an authorization to plaintiff to receive the
moneys on G's behalf. It created no right of action in the agent
against the debtor if the debtor should choose to pay the
principal directly. It cannot be construed as an assignment.
ACTION.
COUNSEL:
F. R. Whiteside for plaintiff.
J. R. Haig for defendants.
SOLICITORS:
John Taylor Associates, Vancouver, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff claims the sum of
$1,000. In the pleadings he alleges that amount
was posted by one Iqbal Singh Gill as a cash bond
in favour of the Crown; that by a "Power of
Attorney" document Gill assigned the debt in
respect of the bond to the plaintiff; that the sum
was ultimately and wrongly paid directly to Gill.
There is little, if any, dispute as to the relevant
facts. The plaintiff was the main witness. I accept
his testimony.
The plaintiff is a lawyer. He has, for many years
in his general practice of law, acted frequently as
counsel for persons with problems in respect of the
Immigration Act and immigration matters. In par
ticular, he has frequently acted for would-be immi
grants who have been subject to examination or
special inquiry procedures, and who, pending
examination or inquiry, have been released from
custody under varying conditions including the
payment of security deposits (see section 17 of the
Immigration Act).
On June 12, 1972, Gill gave a security deposit of
$1,000. He and an immigration officer signed a
cash bond receipt (Exhibit 10-C). Gill was
released from custody. Four other cash bond
receipts were issued subsequently. They merely
extended or replaced the earlier one. No other or
further sums of money changed hands. At some
stage a special inquiry into Gill's status and
admissibility was held. The plaintiff acted for him.
On October 6, 1972, Gill signed a document
entitled "Power of Attorney" in favour of the
plaintiff. The purpose was to protect or ensure
payment of the plaintiff's account for legal services
already given and to be given in the future. The
relevant portions of this document (Exhibit 2) are
as follows:
POWER OF ATTORNEY
when given by an individual
KNOW ALL MEN BY THESE PRESENTS that I, Iqbal Singh
Gill, of 536 E. 54th Avenue, in the Province of B.C., have made
and appointed and by these presents do make and appoint John
R. Taylor of #201-1111 West Georgia Street, Vancouver 5,
B.C. as my true and lawful attorney up to and inclusive of the
1st day of November 1976, unless before that day I revoke this
power of attorney by giving notice in writing to the Comptroller
of the Treasury, Ottawa, to receive from the Receiver General
of Canada all such sum or sums of money as are now due, or
may hereafter become due and payable to me on the order of
the Department of Manpower and Immigration of the Govern
ment of Canada, relative to Bond 31672 but not exceeding in
all one thousand dollars ($1,000.00), and to give a receipt or
receipts for the same, I hereby ratifying and confirming and
agreeing to ratify and confirm all that my said attorney may do
by virtue hereof.
NOTE: 1. All the parties who join in giving the power of
attorney must sign.
2. When the intention is to authorize a bank to receive
money, the power of attorney should be in favour of
such a bank and not in favour of its manager.
3. No additions or alterations in the text of this form
may be made.
T-156134-B of January 4, 1935, directs that "All powers of
attorney shall be in a form approved by the Department of
Justice".
On November 23, 1972, Exhibit 2 was sent by
mail to the Department of Manpower and Immi
gration Office (Burrard St.), Vancouver. Appar
ently another file on Gill had been opened in the
Immigration Office at Vancouver International
Airport. Exhibit 2 was then sent to that office.
Gill was, at one stage, ordered deported. Pursu
ant to some general amnesty provision he was, on
July 19, 1974, granted landed immigrant status.
At that time another departmental file had already
been opened on him in Kamloops, and all or part
of the Burrard Street file had been sent there. But
Exhibit 2, through departmental oversight, was not
transferred to Kamloops from the Vancouver
International Airport file. A requisition for refund
of the bond was submitted by the Kamloops office
on July 23, 1974. Sometime in August 1974, the
$1,000 was mailed by the appropriate government
department to Gill at Golden, B.C.
It is conceded that Gill had never, at any rele
vant time, revoked Exhibit 2. The defendant
admits there was an error in not transferring
Exhibit 2 to the Kamloops office; if that had been
done, it is conceded the refund monies would, in
accordance with the document, have been sent to
the plaintiff. The defendant further concedes that
the provisions of the Assigned Debt and Power of
Attorney Payment Regulations' were not, in
respect of the interdepartmental and intergovern-
mental processing of Exhibit 2, complied with.
According to the plaintiff, it has always been his
experience that the Department of Manpower and
Immigration has, for practical purposes, treated
documents such as Exhibit 2 as assignments, and
not as mere powers of attorney authorizing an
agent to receive, on behalf of a principal, moneys
payable to the principal. The plaintiff, over the
years, has had some doubt as to the legal, as
distinguished from the practical, effect of docu
ments similar to Exhibit 2. He had, on approxi
mately four occasions, drawn up what he con
sidered to be proper assignment forms. This had
been done over a period some three years ago. He
had submitted his forms to and discussed them
with a person whom he took to be the senior
accounts officer in charge of the, accounts section
in the Department of Manpower and Immigration
at Vancouver, B.C. That person had refused to
accept the plaintiff's preferred forms and had
insisted the only suitable document was the
departmental form (Exhibit 2). The plaintiff
admits he did not, on any of those occasions,
pursue the matter further with higher officials in
Ottawa, or submit individual assignments in
accordance with the Assignment of Crown Debt
Regulations 2 . He was not aware of those Regula
tions until this litigation. I infer he did not pursue
the matter further in Ottawa because of the posi
tion taken by the accounts section in Vancouver,
and by the fact he had, in at least 100 similar
cases, received payment of monies (without inci
dent), when he had obtained from other clients
and submitted documents identical to Exhibit 2.
The plaintiff contends that, on all these facts
which I have recounted, he is entitled to recover
1 Part of Exhibit 15.
2 Part of Exhibit 15.
from the defendant. It is said that when one reads
the words in Exhibit 2 in the light of the provisions
of the Financial Administration Act', the docu
ment goes far beyond a common law power of
attorney and operates as an assignment to the
plaintiff of the $1,000 debt.
I have every sympathy for the plaintiff. The
money would, in the normal course, and but for
the defendant's departmental error, have been paid
to him. His client had authorized him to apply it
against the account for legal services.
Unfortunately, I am unable to agree with the
plaintiff's contention. I am convinced Exhibit 2 is
nothing more than an authorization by a principal
(Gill), to the Department, to pay the sum in
question to the plaintiff, and an authorization to
the plaintiff to receive the monies on behalf of
Gill. It creates no right of action in the agent (the
plaintiff) against the person who owes the money
(the Crown or the Department) if the debtor, for
some reason, chooses to pay the principal directly.
In my opinion, Exhibit 2 cannot be construed as an
assignment of the debt.
In view of the conclusion I have reached, it is
unnecessary to express any opinion on a further
argument raised on behalf of the defendant: if
Exhibit 2 was indeed an assignment, then the
plaintiff had not complied with the technical
manner of giving notice of the assignment as
required by the relevant regulations.
The action is therefore dismissed. The defendant
is entitled to costs.
3 R.S.C. 1970, c. F-10.
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.