T-4748-76
Michael Chi Ming Au (Applicant)
v.
Attorney General of Canada (Respondent)
Trial Division, Maguire D.J.—Calgary, December
6, 1976; Regina, February 2, 1977.
Immigration — Application for writ prohibiting continuance
of special inquiry Earlier deportation order set aside on
grounds that s. 22 report did not confer jurisdiction on Special
Inquiry Officer Whether res judicata or double jeopardy —
Whether matter merged by earlier judgment of Federal Court
of Appeal — Proper person to be named respondent in prohi
bition application — Immigration Act, R.S.C. 1970, c. I-2, s.
22.
McIntosh v. Parent [1924] 4 D.L.R. 420, applied.
APPLICATION for writ of prohibition.
COUNSEL:
Joseph C. DePaoli for applicant.
Neil Dunne for respondent.
SOLICITORS:
Beaumont, Proctor, Calgary, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAGUIRE D.J.: This application came before
me at Calgary, Alberta, on December 5, 1976.
Certain personal plans completed prior to the date
of hearing have resulted in the delay in delivery of
my judgment.
This application is for a writ of prohibition
prohibiting W. L. Vanderguard, a Special Inquiry
Officer under the provisions of the Immigration
Act', from proceeding with an inquiry to deter
mine the status of the applicant in Canada. This
inquiry commenced at Calgary, Alberta, on the
22nd day of October 1976, and was adjourned to
permit this application to be made.
R.S.C. 1970, c. I-2.
Pursuant to a report under section 22 of the
Immigration Act, dated May 11, 1976, by W. F.
O'Connor, an immigration officer under the provi
sions of the Immigration Act, a special inquiry was
held before W. M. Wilson, Special Inquiry Officer
at Calgary, Alberta, completed on July 2, 1976.
This Special Inquiry Officer found and held rela
tive to the applicant:
(i) You are not a Canadian citizen.
(ii) You are not a person having Canadian
domicile.
(iii) You are a member of a prohibited class of
persons described in paragraph 5(d) of the
Immigration Act, a person who has been con
victed of any crime involving moral turpitude
and whose admission to Canada has not been
authorized by the Governor-in-Council.
The Special Inquiry Officer, by order dated July
2, 1976, ordered the applicant to be deported.
This deportation order was set aside by judg
ment of the Court of Appeal, without written
reasons, dated September 22, 1976.
The Court record, however, on this appeal, pre
pared pursuant to Rule 200(7)(b) shows that the
Chief Justice asked counsel for the respondent how
the report referred to above could be a proper
(section 22) report. Counsel for the respondent
Minister concurred in the view and that the appeal
should be allowed. It follows that the section 22
report was irregular and thus did not confer juris
diction on the Special Inquiry Officer to hold the
inquiry.
The grounds advanced by the applicant for the
relief now sought are:
(a) That the matter is res judicata.
(b) That the matter is contrary to the rule of
double jeopardy.
(c) That the matter was merged by the judg
ment of the Federal Court of Appeal dated
September 22, 1976.
Res judicata and merger only apply when the
first tribunal was competent and had jurisdiction
to hear and determine the matter brought before
it. McIntosh v. Parent 55 O.L.R. 552; [1924] 4
D.L.R. 420, Halsbury's Laws of England, 3rd ed.,
vol. 1, p. 204. Here the first Special Inquiry Offi
cer did not have jurisdiction by reason of the
irregular report and it follows that these two
grounds do not support the application.
For similar reasons double jeopardy has not
occurred.
It is not necessary for me to consider the
application of section 27(4) of the Immigration
Act.
The foregoing reasons dispose of this application
for prohibition, but I think I might well refer to
another factor. The sole respondent on this
application is the Attorney General of Canada. I
am of the opinion that where prohibition is sought
against a known and specified person, that that
person is a required and necessary respondent. It
may be, but I do not so decide, that naming the
Minister of Manpower and Immigration, within
whose department the Special Inquiry Officer is
employed, would be adequate for the purposes of
an application of this nature. The Attorney Gener
al of Canada is not in that latter category.
The application is dismissed with costs.
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.