A-476-76
Benilda Dela Cruz Mojica (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and
MacKay D.J.—Toronto, September 9 and 28,
1976.
Jurisdiction—Application under s. 52(a) to quash a s. 28
application Lack of jurisdiction because of s. 29 and Immi
gration Appeal Board Act, s. 23—Immigration Act, R.S.C.
1970, c. 1-2—Immigration Appeal Board Act, R.S.C. 1970, c.
I-3—Federal Court Act, ss. 28, 29 and 52(a).
The respondent is applying to quash the applicants' originat
ing notice that sought the review and the setting aside of the
order of the Immigration Appeal Board dismissing an appeal
against an order for deportation under the Immigration Act
and an application for extended time for leave to appeal to the
Federal Court. The applicant claimed that the Board erred in
law or based its decision on an erroneous finding of fact.
Held, the application to quash is allowed. The alleged error
of the Board would be reviewable under section 28 if it was not
for section 29 of the Federal Court Act and section 23 of the
Immigration Appeal Board Act.
Commonwealth of Puerto Rico v. Hernandez [1973] F.C.
1206; Castagnetto v. Minister of Manpower and Immigra
tion (not reported, A-103-75); Lubin v. Minister of Man
power and Immigration (not reported, A-102-75) and
Lugano v. Minister of Manpower and Immigration [1976]
2 F.C. 438, applied.
APPLICATION under section 52(a).
COUNSEL:
W. E. Maxwell, Q.C., for applicant.
P. Evraire for respondent.
SOLICITORS:
Risk, Cavan, Gardner, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an application by the respond
ent for an order, pursuant to paragraph 52(a) of
the Federal Court Act', to quash the originating
notice brought by the applicant under section 28 of
the Act. The application to quash is based on a
submission that the Court lacks jurisdiction to
entertain the section 28 application because of
section 29 of the statute.
The section 28 originating notice seeks to have
reviewed and set aside the order of the Immigra
tion Appeal Board delivered on the 29th day of
June 1976. The grounds for review asserted in the
notice are that the Board erred in law or based its
decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or
without regard for the material before it.
A deportation order was made on January 15,
1976, in respect of the applicant in the section 28
proceeding, after an inquiry was held under the
provisions of the Immigration Act 2 . The appellant,
a landed immigrant, appealed to the Immigration
Appeal Board under section 11 of the Immigration
Appeal Board Act'. The appeal was dismissed. An
application to extend time for leave to appeal to
this Court was also dismissed.
The application to quash was made in writing
pursuant to Rule 324. Counsel for the section 28
applicant asked that the motion to quash be heard
with oral argument, a request that was granted. In
support of the request, counsel stated:
The application under Section 28 principally turns on Section
28(1)(c) and the submission that the Immigration Appeal
Paragraph 52(a) of the Federal Court Act provides:
52. The Court of Appeal may
(a) quash proceedings brought before it in which it has no
jurisdiction or whenever such proceedings are not taken in
good faith;
2 R.S.C. 1970, c. I-2.
3 R.S.C. 1970, c. I-3, as amended by S.C. 1973-74, c. 27, s. 5.
Board based its decision dismissing the appeal on an erroneous
finding of fact that it made in a perverse or capricious manner
or without regard for the material before it. The Board ignored
the cogent and uncontradicted evidence of a distinguished
medical specialist as to the exceptional circumstances now
existing in the home of Mr. and Mrs. Ahmad of Toronto, and
the extreme dependance [sic] of the children of Mr. and Mrs.
Ahmad upon the Applicant. The refusal of the Board to act on
the evidence of Dr. Hawke can only be described as perverse or
capricious or a step taken without regard for the evidence
before the Board...
The evidence referred to was led in relation to a
claim for discretionary relief under section 15 of
the Immigration Appeal Board Act.
No other ground of attack was submitted in
argument.
In Commonwealth of Puerto Rico v.
Hernandez 4 , Mr. Justice Thurlow (as he then was)
said at pages 1207 and 1208:
The grounds upon which an application under section 28 of
the Federal Court Act may be made, as set out in that section,
are defined broadly enough to include any question of law or
jurisdiction. The nature of the proceeding, however, is not that
of a rehearing of the matter but is a review of the legality of
what has transpired and this Court, while authorized to set the
decision or order aside and to return the matter to the tribunal
with directions, is not empowered, as is usual under appeal
provisions, to give the decision or order that, in its opinion, the
tribunal ought to have given. Nor is the Court authorized to
reweigh the evidence and substitute its own view of the facts for
that reached by the tribunal. In this area the jurisdiction is
merely to set aside a decision based on a finding of fact that is
not sustainable in law and thus falls within the meaning of
section 28(1)(c).
As I see it, it is within these limits that the Court had
authority to review the decision here in question. By the
Extradition Act, R.S.C. 1970, c. E-21 and Article X of the
Ashburton Treaty, the extradition judge is required to issue his
warrant for the committal of the fugitive for extradition if such
evidence is produced as would, according to the law of Canada,
justify his committal for trial, if the crime had been committed
in Canada and if such evidence is not produced he is to be
discharged. Under section 475 of the Criminal Code, R.S.C.
1970, c. C-34, a justice holding a preliminary inquiry is
required to commit the accused for trial "if in his opinion the
evidence is sufficient to put the accused on trial" and if, in his
opinion, no sufficient case is made out he is to discharge the
accused. The standard of proof so required is neither absolute
nor precise but depends on a value judgment of the sufficiency
of the evidence to justify putting the accused on trial for the
alleged offence. It seems clear that at least in cases where
honest opinions may differ as to the sufficiency of the evidence,
4 [1973] F.C. 1206.
it can scarcely be said that there is error in law in the justice's
disposition of the case merely because a reviewing Court or
some of its members might have inclined to a different result
had it been the tribunal holding the inquiry. Something more
than that would undoubtedly be required before a reviewing
Court could be expected to interfere even if it had jurisdiction
to review the facts and to decide the case upon its own view of
them. But where, as here, the jurisdiction to review is confined
to matters of law, apart from misdirection or error of law in the
conduct of the proceedings, the Court, in my opinion, is entitled
to interfere only when the case is one of so gross an error in the
appreciation of the case presented as to indicate not merely a
misjudgment of the effect of marginal evidence but a disregard
of material before the tribunal of such a nature as to amount to
an error of law or to give rise to an inference that some
erroneous principle has been followed and thus bring the error
within the scope of section 28(1)(c).
It would thus seem that the alleged error on
which the section 28 application is based in this
case would be reviewable under section 28 if it
were not for section 29 of the Federal Court Act 5
and section 23 of the Immigration Appeal Board
Act 6 .
5 Section 29 of the Federal Court Act provides:
29. Notwithstanding sections 18 and 28, where provision
is expressly made by an Act of the Parliament of Canada for
an appeal as such to the Court, to the Supreme Court, to the
Governor in Council or to the Treasury Board from a
decision or order of a federal board, commission or other
tribunal made by or in the course of proceedings before that
board, commission or tribunal, that decision or order is not,
to the extent that it may be so appealed, subject to review or
to be restrained, prohibited, removed, set aside or otherwise
dealt with, except to the extent and in the manner provided
for in that Act.
6 Section 23 of the Immigration Appeal Board Act provides:
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.
(2) The Governor in Council may make rules governing
the practice and procedure in relation to applications for
leave to appeal and appeals to the Federal Court of Appeal
pursuant to this section, and such rules shall be binding
notwithstanding any rule or practice that would otherwise be
applicable.
(3) No order as to costs shall be made in respect of an
application for leave to appeal or an appeal to the Federal
Court of Appeal pursuant to this section.
The ground asserted as the basis for review of
the Immigration Appeal Board decision raises a
question of law appealable under section 23 of the
Immigration Appeal Board Act. The scope of the
appeal on this question is not limited by the sec
tion. It is certainly broad enough to encompass the
grounds asserted for review under the section 28
application as particularized in the request for oral
argument. In my view, therefore, review under
section 28 is barred by section 29 7 . Thus we lack
jurisdiction to entertain the section 28 application.
I would grant the application to quash.
HEALD J.: I concur.
MACKAY D.J.: I concur.
7 See Castagnetto v. Minister of Manpower and Immigra
tion, Case No. A-103-75, judgment rendered May 15, 1975;
Lubin v. Minister of Manpower and Immigration, Case No.
A-102-75, judgment rendered May 15, 1975; Lugano v. Minis
ter of Manpower and Immigration [1976] 2 F.C. 438.
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.