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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.
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