T-3097-76
Vincenzo Russo, Marie Ellen Panizza de Russo
and dependent children Marina Rosana Russo and
Marisa Anna Natalia Russo (Applicants)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Sweet D.J.—Toronto, August 6
and 9, 1976.
Prerogative writs—Practice—Application for order of
prohibition or injunction against respondent from acting on
order of deportation made against applicants until disposition
of appeal before Federal Court of Appeal—Proceedings under
s. 23 of Immigration Appeal Board Act Jurisdiction of Fed
eral Court Trial Division—Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, s. 11—Federal Court Act, R.S.C. 1970
(2nd Supp.) c. 10, ss. 2, 18, 49 and 50(1).
Applicants applied for an order of prohibition or injunction
against respondent from acting on an order of deportation
made against the applicants until disposition of their appeal
before Federal Court of Appeal. Applicants entered Canada for
tourist purposes and subsequently applied for refugee status,
which was denied. Applicants were ordered deported and leave
to appeal the deportation order was refused as was the attempt
to have the request for appeal under section 11 of the Immigra
tion Appeal Board Act re-opened. Applicants then applied to
the Federal Court of Appeal pursuant to section 23 of the
Immigration Appeal Board Act. Respondent claims that the
latter application is not available to applicants, but that argu
ment should not be dealt with by the Trial Division.
Held, the application is dismissed. Applicants argue that the
Court has jurisdiction under section 50(1) of the Federal Court
Act, but section 50(1) clearly deals only with those things
which are within the ambit of a judicial proceeding. Even if this
were not so, section 49 of the Act defines the meaning of
"cause or matter" as used in section 50(1). Applicants also rely
on section 18 of the Federal Court Act, but paragraph (a) of
that section restricts relief of the nature specified to federal
boards, commissions or other tribunals as defined in section 2
of the Act. Reading the definition as a whole, the words
"person or persons" do not include persons authorized only to
implement a decision made by a tribunal and the respondent is
not a "person" within the meaning of section 18. An order of
prohibition forbids an "inferior" court from exceeding its juris
diction or contravening the law; it does not lie to correct a
wrong decision. Applicants concede that none of the tribunals
involved with this matter has exceeded its jurisdiction or con
travened any law. This Court is therefore without jurisdiction
to grant the relief the applicants seek on this application.
Mills v. Minister of Manpower and Immigration [1974] 2
F.C. 654, distinguished.
APPLICATION.
COUNSEL:
A. Singer for applicants.
T. L. James for respondent.
SOLICITORS:
Singer, Kwinter, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
SWEET D.J.: This application commenced with
the applicants seeking "an Order of Prohibition
against the Respondent and his officers or agents
from acting upon an Order of Deportation which
was made against the Appellants on the 17th day
of October 1975 until the disposition of their
appeal before the Federal Court of Appeal and for
such further and other Order as may appear just".
During argument on the hearing, counsel for the
applicants moved to amend the notice of motion by
adding after the words "Order of Prohibition"
therein the words "or for an injunction". Counsel
for the respondent consented to the amendment.
The amendment was ordered.
According to Mrs. de Russo's affidavit filed, the
applicants entered Canada in 1974 "for tourist
purposes". The affidavit indicates:
(a) An extension of the tourist visa.
(b) An application for refugee status, with the
hearing on June 11, 1975, which was denied.
(c) An order of deportation against the appli
cants on October 17, 1975.
(d) An application for leave to appeal the
deportation order refused by the Immigration
Appeal Board November 17, 1975.
(e) An attempt "to have the request for appeal
under section 11 of the Immigration Appeal
Board Act' re-opened" which was refused.
(f) An application to the Federal Court of
Appeal pursuant to section 23 of the Immigra
tion Appeal Board Act. Counsel stated the filing
of same was done on July 30, 1976.
Mrs. de Russo, in her affidavit, filed, said that
on August 3, 1976 she was advised that the order
of deportation which was made against her on
October 17, 1975 was to be executed forthwith and
that she was to leave with her family before
August 11, 1976.
As a preliminary matter, counsel for the
respondent submitted that the proceeding by the
applicants under section 23 is not available to
them and is a nullity. To support that position, he
cited Mills v. Minister of Manpower and Immi
gration [1974] 2 F.C. 654. It seems to me that
inasmuch as the application for leave to appeal is
before the Federal Court of Appeal it is not for me
to deal with that phase of the matter on this
application. In any event, and even though I may
be wrong in this view, I do not need to deal with it
to dispose of this application.
What must first be decided is whether there is
any legislation which confers on this Court the
jurisdiction to grant the relief the applicants seek.
In this connection, counsel for the applicants
referred to section 50(1) of the Federal Court
Act 2 , which states as follows:
50. (1) The Court may, in its discretion, stay proceedings in
any cause or matter,
(a) on the ground that the claim is being proceeded with in
another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
Counsel for the applicants submitted that the
execution of an order for deportation is a "pro-
ceeding" in a "matter" within the meaning of
section 50(1) and that the execution of the order
could be stayed by the Court in its discretion. I do
not agree.
' R.S.C. 1970, c. I-3.
2 R.S.C. 1970 (2nd Supp.) c. 10.
To me it seems quite clear that what section
50(1) deals with are only those things which are
within the ambit of a judicial proceeding per se.
Even if the wording of section 50(1) were not as
unequivocal as I think it is, section 49 of the Act
would, in my view, be sufficient to remove any
doubt as to what is meant by "cause or matter" in
section 50(1) when it says:
49. All causes or matters before the Court shall be heard
and determined without a jury.
I do not believe that one could reasonably dif
ferentiate between the meaning of the words
"cause or matter" in section 49 and those words in
the section immediately following.
Another section of the Federal Court Act
referred to by counsel for the applicants in this
connection was section 18:
18. The Trial Division has exclusive jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a) including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or tribunal.
By paragraph (a) of that section, relief of the
nature specified in that paragraph is applicable
only as against any federal board, commission, or
other tribunal as defined in section 2 of the Act.
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under any Act
of the Parliament of Canada, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867.
A contention of counsel for the applicants was
that, by the use of the words "person or persons"
there are included all individuals upon whom
powers are conferred by an Act of Parliament
regardless of what those powers may be, subject
only to the exceptions therein mentioned. I do not
share that view.
Reading the definition as a whole, together with
the words "federal board, commission or other
tribunal", which I feel should be done in this case,
I interpret the words "person or persons", in con
text, to include persons such as those vested by
Parliament with decision-making jurisdiction or
decision-making power or jurisdiction or power to
inquire or investigate. I do not attempt an exhaus
tive list.
Such a board or commission or tribunal with
decision-making or investigative powers might be
so constituted as to require more than one person
for a quorum or such a board, commission or
tribunal might be established with only one person.
In my view, persons authorized only to imple
ment a decision made by a tribunal are not includ
ed in the definition. The respondent, though
authorized to implement a decision already made,
in my opinion, is not a "person" included in the
definition and his office is not a "federal board,
commission, or tribunal" within the meaning of
section 18.
Is there, then, anything in section 18 of the
Federal Court Act which creates jurisdiction in the
Trial Division of this Court to issue an injunction
or a writ of prohibition against any of the tribunals
which already have dealt with this matter?
To state a commonplace in very general terms a
restrictive injunction is a judicial process whereby
an order is made to prevent the infringement of a
right or to restrain the doing of an unlawful act.
A modern-day order of prohibition would
include an order directed to a so-called "inferior"
Court (an appellation which, even though it may
only be technical, is, in my personal opinion, an
unhappy one and inept) which forbids that Court
to continue proceedings in excess of its jurisdiction
or in contravention of the laws of the land. It does
not lie to correct a wrong decision on the merits of
the proceedings.
It is an easy step, and if I may say so, a logical
one to apply that procedure to administrative
tribunals.
Counsel for the applicants concedes that none of
the tribunals which have dealt with this matter
have exceeded their jurisdiction. There is no indi
cation or even a suggestion that any of those
tribunals did any unlawful act. Although counsel
obviously does not admit that their decisions were
correct, he concedes that they were within their
jurisdiction to make.
I do not think there is anything in paragraph (b)
of section 18 which is any more helpful to the
applicants than that which is in paragraph (a).
Accordingly, I am of the opinion that there is
nothing for this Court to enjoin or prohibit pursu
ant to section 18 and that this Court is without
jurisdiction on this application to grant the relief
the applicants seek.
If there be an avenue open to the applicants to
attempt to have done that which they seek on this
application, it is my opinion that the way they
have chosen is not the correct one.
The application is dismissed.
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.