T-1779-77
Iris Motayne McDoom (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Walsh J.—Toronto, June 6;
Ottawa, June 10, 1977.
Immigration Prerogative writs — Nomination of two
sons for admission to Canada — Retroactive application of
regulation — One application rejected because no provision for
permanent admission of student — Mandamus sought —
Consideration of other application delayed — Regulations
changed in interval — Rejection based on new Regulations —
Certiorari and mandamus sought — Rule 474 application to
determine point of law re retroactivity of regulation.
The applicant nominated her two sons for permanent admis
sion to Canada. The application of Gregory, a student, was
never assessed because there was no provision for dealing with
students as permanent residents. Anthony's application was
considered only after a lengthy delay and then under more
stringent Regulations that had come into force in the interval
following the application date. The applicant applies for a writ
of certiorari quashing the decision rejecting Anthony's applica
tion, and writs of mandamus requiring both applications be
processed under the law in force when the applications were
made. A determination under Rule 474 that the applications be
processed under the law in effect at the time of the application
is also sought.
Held, the applications are allowed. The applicant has an
accrued right to have these applications considered and dealt
with on their merits on the basis of the Regulations in effect at
the date these applications were accepted and forwarded for
evaluation, and whatever the cause in making these evaluations,
they cannot be prejudiced by giving retroactive effect to the
new and additional requirement subsequently being made part
of the Regulations. It is not necessary to decide the question of
non-retroactivity of the new regulation as a question of law
since the decision to this effect is implicit in the finding that
mandamus should issue to consider the applications on the
basis of the Regulations as they existed at the date the applica
tions were made. It is also implicit in this finding that the
adverse decision in connection with Anthony's application must
of necessity be quashed.
APPLICATION.
COUNSEL:
P. Stott and C. Hoppe for applicant.
G. R. Garton for respondent.
SOLICITORS:
Duggan, Hoppe, Niman & Stott, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application for a writ of
certiorari to quash the decision of the Department
of Manpower and Immigration refusing the nomi
nation of Anthony Motayne and for a writ of
mandamus requiring the respondent to process the
application to nominate him pursuant to section 33
of the Immigration Regulations, P.C. 1962-86, as
it read on the 30th day of October, 1973. The
motion also asks for a determination of a question
of law pursuant to Rule 474 of the Federal Court
Rules that the said Anthony Motayne is to be
assessed under the provisions of section 33 of the
Immigration Regulations, P.C. 1962-86, as it read
at the time the nomination was made by the
applicant. An identical application was made in
record No. T-1783-77 relating to her nomination
of Gregory Motayne save that in that case no
certiorari is sought, the application not having
been dealt with. The same legal arguments apply
in both cases the only difference in the facts being
that at the time the nomination was made by
applicant, Iris Motayne McDoom, the mother of
both Anthony and Gregory Motayne, Gregory was
still a student attending university in the United
States and his point total pursuant to section 33 of
the Regulations was never assessed, the application
for permanent admission to Canada being rejected
on the basis that he planned to pursue his studies
in Canada and there was no provision for dealing
with students as permanent residents. In the case
of Anthony, his application was originally can
celled because of his failure to keep various
appointments with the Manpower and Immigra
tion Section of the Canadian Consulate General in
New York due to a United States I-94 Form
which they required having been lost. This infor
mation appears from a letter written by L. D.
Carroll, Consul, Manpower and Immigration, to
applicant's attorney on October 17, 1975, and
annexed to the affidavit of applicant accompany
ing the motion in Record T-1783-77 as an exhib-
it. In due course he was finally interviewed on
February 2, 1976, and scored 55 units, but was
refused pursuant to February 22, 1974, amend
ments to the Regulations, because he was in an
occupation with a demand of zero. This informa
tion appears from a letter dated April 13, 1976,
from Mr. Carroll to applicant's counsel, annexed
as an exhibit to her affidavit accompanying the
present motion.
In both applications the affidavit sets forth that
applicant and her husband were granted landed
immigrant status in Canada on July 3, 1973, and
that on October 30, 1973, she attended at the
Canada Immigration Centre, 480 University
Avenue, Toronto, to nominate each of her said
sons for permanent residence in Canada. Anthony
at that time was 25 years of age and Gregory 23,
both residing in New York. In each case she was
examined to determine whether she was eligible to
nominate her said sons and at the conclusion of the
examination was advised that the nomination was
accepted for forwarding to the Canadian Consul
General in New York City for processing. The
nomination of Anthony was assigned File No.
369981 and that of Gregory 335655. None of this
is disputed, nor is the fact that following the
rejection of each of the nominations she retained
counsel to obtain explanations of the reasons for
this, which information was obtained by the letters
referred to above. She sets out subsequent efforts
made to obtain a reconsideration of the nomina
tions with Immigration Department Headquarters,
The Canadian Consul for Manpower and Immi
gration in New York, and through Immigration
consultants with the Chief of the Foreign Service
Branch of the Department of Manpower and
Immigration, all of which efforts were unsuccess
ful.
The issue arises as a result of an amendment to
the Regulations made on February 22, 1974.
Regulation 33 as it read on October 30, 1973,
when applicant nominated her sons for permanent
residence in Canada was set out in SOR/67-434
and read as follows:
33. (1) Subject to this section, any person residing in
Canada who is a Canadian citizen or a person lawfully admit
ted to Canada for permanent residence may nominate for
admission to Canada for permanent residence any of the fol
lowing individuals (hereinafter referred to as a "nominated
relative") including any accompanying immediate family of
that individual:
(a) any son or daughter of that person twenty-one years of
age or over;
(b) any married son or daughter of that person under
twenty-one years of age;
(c) any brother or sister of that person;
(d) the father, mother, grandfather or grandmother of that
person under sixty years of age; and
(e) any nephew, niece, uncle, aunt, grandson or granddaugh
ter of that person.
(2) A nominated relative and his immediate family may be
granted admission to Canada for permanent residence if
(a) he and his immediate family comply with the require
ments of the Act and these Regulations; and
(b) the person nominating him has met the requirements of
subsection (4) and an order of deportation has not been made
against that person.
(3) In assessing a nominated relative for admission to
Canada for permanent residence, an immigration or visa officer
shall assess that person or the head of his immediate family if
he is not the head on the following factors in accordance with
the norms set out in Schedule B:
(a) his education and training;
(b) his personal qualities;
(c) the demand in Canada for the occupation in which he is
likely to be employed;
(d) the level of his occupational skill; and
(e) his age.
(4) Every person nominating a nominated relative for admis
sion to Canada for permanent residence shall
(a) undertake to provide for a period of five years any
necessary care and maintenance from his own resources for
the nominated relative and his immediate family in accord
ance with standards prescribed by the Minister;
(b) have carried out the responsibilities with respect to any
previous application for the admission to Canada of any
person for permanent residence;
(c) be willing and able to undertake to advise, counsel and
assist the nominated relative in fulfilling his responsibilities
as a resident of Canada; and
(d) make the nomination in the form prescribed by the
Minister.
(5) Notwithstanding subsection (3), an immigration or visa
officer may
(a) approve the admission of a nominated relative who does
not meet the norms set out in Schedule B; or
(b) refuse admission of a nominated relative who meets the
norms set out in Schedule B;
if in his opinion there are good reasons why those norms do not
reflect the particular nominated relative's chances of establish
ing himself successfully in Canada and those reasons have been
submitted in writing to, and approved by, an officer of the
Department designated by the Minister.
However, subsections (1) and (2) of Regulation 33
were revoked and new sections substituted therefor
on February 22, 1974, by SOR/74-113 which
reads as follows:
2. (1) All that portion of subsection 33(1) of the said Regu
lations preceding paragraph (a) thereof is revoked and the
following substituted therefor:
"33. (1) Subject to this section, any person residing in
Canada who is a Canadian citizen or a person lawfully
admitted to Canada for permanent residence and has
reached the full age of eighteen years, may nominate for
admission to Canada for permanent residence any of the
following individuals (hereinafter referred to as a "nominat-
ed relative"), including any accompanying immediate family
of that individual:"
(2) Subsection 33(2) of the said Regulations is revoked and
the following substituted therefor:
"(2) A nominated relative and his immediate family may
be granted admission to Canada for permanent residence if
(a) he and his immediate family comply with the require
ments of the Act and these Regulations;
(b) the person nominating him has met the requirements
of subsection (4) and a deportation order has not been
made against that person or, if such an order has been
made,
(i) an appeal from the order has been allowed,
(ii) the order has been quashed, or
(iii) the person has been readmitted to Canada as a
landed immigrant by virtue of ministerial authority
pursuant to section 35 of the Act; and
(c) he achieves at least one unit of assessment for occupa
tional demand or has arranged employment or a desig
nated occupation for which he would have achieved 10
units of assessment if he had been examined as an
independent applicant."
The key change is that whereas prior to that date
one of the requirements was that on the basis of
norms set out in Schedule B a nominated son
would require 25 units of assessment (Schedule B,
section 2(1)(b)) whereas following the amendment
in addition to this by paragraph (2)(c) he must
achieve at least one unit of assessment for occupa
tional demand or have arranged employment or a
designated occupation for which he would have
achieved 10 units of assessment if he had been
examined as an independent applicant. In the case
of Anthony, although he was assessed at 55 units,
he was refused on the basis of there being a zero
occupational demand, and in the case of Gregory,
although the file has been destroyed, it appears a
reasonable inference from the reasons given for his
refusal that this also was done on the basis of zero
occupational demand since he was a student and
therefore not coming to Canada to work. The
reason given that he could not be assessed because
there is no provision for dealing with students as
permanent residents does not appear in these terms
anywhere in the Act or Regulations and would not
by itself therefore be a valid ground for refusing to
assess him.
It is therefore necessary to decide whether the
amendment to the Regulations had a retroactive
effect so as to apply to the nominations made by
applicant for each son on October 30, 1973, and
change the basis on which they would be
considered.
Reference might be made to the Interpretation
Act' and in particular to sections 35(b),(c) and (e)
and 36(c) and (d) thereof which read as follows:
35. Where an enactment is repealed in whole or in part, the
repeal does not
(b) affect the previous operation of the enactment so
repealed or anything duly done or suffered thereunder;
'(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enactment
so repealed;
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment;
and an investigation, legal proceeding or remedy as described in
paragraph (e) may be instituted, continued or enforced, and the
penalty, forfeiture or punishment may be imposed as if the
enactment had not been so repealed.
36. Where an enactment (in this section called the "former
enactment") is repealed and another enactment (in this section
called the "new enactment") is substituted therefor,
(c) every proceeding taken under the former enactment shall
be taken up and continued under and in conformity with the
new enactment so far as it may be done consistently with the
new enactment;
(d) the procedure established by the new enactment shall be
followed as far as it can be adapted thereto in the recovery or
enforcement of penalties and forfeitures incurred, and in the
enforcement of rights, existing or accruing under the former
enactment or in a proceeding in relation to matters that have
happened before the repeal;
In subsection 2(1) "enactment" is defined as
meaning "an Act or regulation or any portion of
an Act or regulation".
R.S.C. 1970, c. I-23.
The wording of the amending Order in Council
makes it clear that subsections (1) and (2) of
Regulation 33 were not merely repealed but were
revoked with new subsections substituted therefor.
In the case of Bell Canada v. Palmeri in the
Federal Court of Appeal, Thurlow J. as he then
was, in rendering the judgment of the Court had
occasion at page 5 to deal with the argument that
section 35 applies only when there is a simple
repeal and that where there is a repeal and substi
tution section 36 is applicable. He states [at page
19O]:
Counsel was unable to give us any authority for this proposition
and with respect I do not agree with it.
Discussing the Privy Council judgment in the case
of Director of Public Works v. Ho Po Sang 3 he
distinguishes it stating at page 192:
Here in my opinion the situation is different. At the material
time the complainants as female employees of the appellant in
my view had an accrued right to equal pay as provided by the
statute which is what they sought to enforce and by making
their complaint in writing to the Minister they had taken the
only step in the procedure required to be taken by them to
entitle them to have the procedure of section 6 carried to its
conclusion.
He then quotes at pages 192-193, the judgment of
Lord Morris at page 922 of the Ho Po Sang case
as follows:
It is to be observed that under section 10(e) a repeal is not to
affect any investigation, legal proceeding or remedy "in respect
of any such right." The right referred to is the right mentioned
in section 10(c), i.e., a right acquired or accrued under a
repealed enactment. This part of the provisions in paragraph
(e) of section 10 does not and cannot operate unless there is a
right as contemplated in paragraph (c). It may be, therefore,
that under some repealed enactment a right has been given but
that in respect of it some investigation or legal proceeding is
necessary. The right is then unaffected and preserved. It will be
preserved even if a process of quantification is necessary. But
there is a manifest distinction between an investigation in
respect of a right and an investigation which is to decide
whether some right should or should not be given. Upon a
repeal the former is preserved by the Interpretation Act. The
latter is not. Their Lordships agree with the observation of
Blair-Kerr J. that: "It is one thing to invoke a law for the
adjudication of rights which have already accrued prior to the
repeal of that law; it is quite another matter to say that,
irrespective of whether any rights exist at the date of the repeal,
if any procedural step is taken prior to the repeal, then, even
after the repeal the applicant is entitled to have that procedure
continued in order to determine whether he shall be given a
2 [1974] 1 F.C. 186.
3
11961] A.C. 901.
right which he did not have when the procedure was set in
motion.
He then states [at page 193]:
In my view there is nothing in this which supports the
position of the appellant and much that supports the opposite
conclusion. Where there is no accrued right under paragraph
(c) of section 35 there is, as I see it, no right under paragraph
(e) to the procedure in order to create a right. But when there
is, as I think there is here, an accrued right within the meaning
of paragraph (c), the party entitled thereto also has the right to
have the procedure carried to a conclusion as provided by
paragraph (e) for the purpose of enforcing the accrued right.
Section 33(1) of the Regulations clearly gives
the applicant the right to nominate her sons for
admission to Canada for permanent residence pro
vided they comply with the requirements of the
Act and Regulations. Subsection (4) of section 33
of the Regulations which was not altered by the
amendment requires the nominating relative to
provide for a period of five years for any necessary
care and maintenance for the nominated relative
and to advise, counsel and assist him in fulfilling
his responsibilities as a resident of Canada. These
were obligations undertaken by applicant when she
made the nomination in the prescribed form which
was accepted.
There is therefore not only an accrued right but
an accrued obligation undertaken by the applicant
with respect to each of her two sons.
In the case of Township of Nepean v. Leikin 4 in
the Ontario Court of Appeal Evans J.A. [as he
then was] states at page 572:
It would appear to me right on principle that a person who had
acquired certain rights and incurred certain obligations in
accordance with the law as it stood at the time such rights and
obligations arose should not be adversely affected by giving
retroactive effect to legislation which seriously impairs those
rights and obligations unless the repealing legislation clearly
states that it shall be applied in a retroactive manner.
He refers to the case of Hamilton Gell v. White
[1922] 2 K.B. 422 at pages 431-432, where Atkin
L.J. referring to section 38 of the English Inter
pretation Act of 1889, 52-53 Vict., c. 63 which
provides [in section 38(2)] that where an Act is
repealed ". .. the repeal shall not ... affect any
right, privilege, obligation, or liability acquired,
4 [1971] 1 O.R. 567.
accrued, or incurred under any enactment so
repealed" stated:
It is obvious that that provision was not intended to preserve
the abstract rights conferred by the repealed Act, such for
instance as the right of compensation for disturbance conferred
upon tenants generally under the Act of 1908, for if it were the
repealing Act would be altogether inoperative. It only applies to
thé specific rights given to an individual upon the happening of
one or other of the events specified in the statute. Here the
necessary event has happened, because the landlord has, in view
of a sale of the property, given the tenant notice to quit. Under
those circumstances the tenant has "acquired a right," which
would "accrue" when he has quitted his holding, to receive
compensation. A case was cited in support of the landlord's
contention: Abbott v. Minister for Lands [1895] A.C. 425,
where the question was whether a man who had purchased
certain land was entitled to exercise a right to make additional
purchases of adjoining land under the powers conferred by a
repealed Act, the repealing Act containing the usual saving
clause. The Privy Council held that he was not. They said (1)
that "the mere right (assuming it to be properly so called)
existing in the members of the community or any class of them
to take advantage of an enactment, without any act done by an
individual towards availing himself of that right, cannot proper
ly be deemed to be a `right accrued' within the meaning of the
enactment." I think that bears out the proposition that I have
stated above.
In the present case applicant had taken steps to
avail herself of the right given under the Regula
tions to nominate her sons for admission to
Canada as permanent residents and had assumed
the obligations arising therefrom.
A similar finding was made recently in the case
of Central Mortgage and Housing Corp. v. Co
operative College Residences, Inc.' at page 406
where Howland J.A. rendering the judgment in
the Ontario Court of Appeal stated at page 406:
In short, before the 1966 amendments came into force, Co-op
had acquired rights under the commitment letter of CMHC.
These rights accrued when the conditions precedent to the loan
set out in the commitment letter were satisfied. All of the
statutory conditions to the making of the loan had been satis
fied. Co-op was entitled, by s. 19(1) 6 of the Interpretation Act
of Canada, to be protected against the necessity of compliance
with the additional requirement of the 1966 amendments. So
far as Co-op was concerned, in view of the rights it had
acquired by the commitment letter, it was entitled to have the
loan made upon compliance with the statutory provisions which
were in exïstence before the 1966 amendments were enacted.
In the case of Upper Canada College v. Smith'
Duff J. in rendering the majority judgment of the
Court at pages 424-425 stated:
5 13 O.R. (2d) 394.
6 Now section 35.
(1921) 61 S.C.R. 413.
A right in the legal sense, not only in the common language of
men but in the language of common lawyers everywhere,
connotes a right which the courts will protect and enforce by
some appropriate remedy.
This may be illustrated by a reference to statutes giving or
taking away a right of appeal. A right of appeal is, of course, a
remedial right and the courts have had to consider frequently
the question whether a statute giving or taking away a right of
appeal should prima facie be construed as affecting the parties
to pending litigation. If such statutes are to be regarded as
regulating procedure only within the meaning of this rule, then
prima facie their application would not be restricted to proceed
ings subsequently instituted. Speaking broadly, the courts have
persistently refused to take this view of such statutes; they have
almost uniformly been held not to fall within the category of
statutes relating to procedure only ....
I find it difficult to conclude that the amending
Regulation setting out the additional requirement
of at least one unit of assessment for occupational
demand is a mere question of procedure. It must
be remembered that it is not the right of Anthony
or Gregory Motayne to be admitted to Canada
which is under consideration here nor their assess
ment and evaluation on a point basis which are
administrative matters within the discretion of the
immigration officer and should not be interfered
with by the Court in the present proceedings, but
rather the applications of Iris Motayne McDoom
to have them admitted as permanent residents and
in my view she has an accrued right to have these
applications considered and dealt with on their
merits on the basis of the Regulations in effect at
the date these applications were accepted and for
warded to New York for evaluation, and, whatever
the cause of the delay in making these evaluations,
cannot be prejudiced by giving retroactive effect to
the new and additional requirement subsequently
being made part of the Regulations.
Respondent referred to the case of Director of
Public Works v. Ho Po Sang, discussed and distin
guished by Thurlow J. (supra). In that case, how
ever, Lord Morris of Borth-y-Gest made the state
ment already quoted at page 922 which it may be
useful to repeat in part here:
It may be, therefore, that under some repealed enactment a
right has been given but that in respect of it some investigation
or legal proceeding is necessary. The right is then unaffected
and preserved. It will be preserved even if a process of quantifi-
cation is necessary.
In the present cases the immigration officer does
not have an absolute discretion to decide on the
desirability of admitting a nominated relative for
permanent residence but is obliged to do so by
application of the pertinent regulations, which
apparently was not done in these cases as the
result of what I have found to be the erroneous
application of the new regulation coming into
effect only on February 22, 1974, to petitioner's
application made on October 30, 1973.
Respondent raised objection to the procedure
adopted in the present motions to obtain the relief
sought, but since in the case of the motion relating
to the admission of Anthony applicant seeks not
only certiorari to quash the refusal but also man-
damus requiring respondent to process the applica
tion pursuant to the Regulations in effect on Octo-
ber 30, 1973, and also a determination of a
question of law pursuant to Rule 474 that these
were the regulations to be applied, and in the case
of Gregory certiorari is not sought since no deci
sion on his admissibility was made but merely a
conclusion that, as a student, he could not be
assessed for permanent residence, so that there
was no decision to quash, it would appear that the
applications do cover all possible approaches to the
question, so the procedural objections may well be
academic. However, I will deal with them briefly.
In his text book 8 Professor S. A. de Smith states at
page 110:
It has been said that "the distinction between an erroneous
decision and a failure to hear and determine according to law
may be very fine." The distinction is, indeed, often impercept
ible, but it is an important one, for where a tribunal has
purported to determine a question, but, as a result of adopting a
wrong approach to its duties, is held to have failed to hear and
determine the question "according to law," mandamus will
issue to order it to make a fresh determination.
At page 481 he states:
The main purposes for which mandamus is awarded nowadays
are to compel inferior tribunals (and, under the Courts Act
1971, the Crown Court) to exercise a jurisdiction that they
have wrongfully declined, and to enforce the exercise of statu
tory discretion in accordance with proper legal principles.
At page 483 he states in reference to mandamus:
Nor, in general, will it lie for the purpose of undoing that which
has already been done in contravention of statute. It would
8 Judicial Review of Administrative Action, 3rd ed.
seem, moreover, that mandamus is not the proper means of
enforcing a duty to abstain from acting unlawfully. Thus, if a
public authority or officer threatens to act ultra vires, the
appropriate remedy will be an injunction or a declaration, and
not an application for mandamus not to exceed the powers
conferred by law. If an inferior tribunal exceeds its jurisdiction,
prohibition and not mandamus lies to compel it to stay its hand,
and certiorari, not mandamus, lies to prevent it from acting
upon its final order.
and at pages 485-486 he states:
... there is no universal rule that the validity of the exercise of
discretion is contingent upon correct findings of law and fact—
but in some cases manifest errors of law and fact have been
treated as constituting failure to hear and determine according
to law and as justifying the award of mandamus. On the other
hand, mandamus has frequently been employed to give redress
for misapplication of the discretionary power itself. Although
the courts have repeatedly disclaimed any jurisdiction to review
the wisdom or reasonableness of the exercise of discretionary
powers, otherwise than on appeal, they have long applied
judge-made criteria by which the exercise of "judicial" discre-
tions must be measured; and from early times mandamus was
recognised as an appropriate remedy for certain forms of abuse
of discretion. The duty to observe these basic principles of
legality in exercising a discretion is, unlike the "duty" to apply
the law correctly to findings of fact, prima facie enforceable by
mandamus. Hence where an authority has misconceived or
misâpplied its discretionary powers by exercising them for an
improper purpose, or capriciously, or on the basis of irrelevant
considerations or without regard to relevant considerations, it
will be deemed to have failed to exercise its discretion or
jurisdiction at all or to have failed to hear and determine
according to law, and mandamus may issue to compel it to act
in accordance with the law. The courts cannot, if they are to
keep within the accepted limits of their own jurisdiction, order
the competent authority to exercise its discretion in the appli
cant's favour, but they may circumscribe its discretion by
indicating what are the factors to which it may lawfully have
regard, and if the original decision was based solely upon a
factor which is held to have been irrelevant, or if a condition
attached to a discretionary grant of a licence is held to be
invalid, the authority may well feel impelled to accede to the
application when it is renewed before it.
At page 487 he states:
... the courts are chary of awarding mandamus for the purpose
of undoing what has already been done. Nevertheless, the
tendency for mandamus to be awarded more readily than
certiorari as a remedy for the misapplication of discretionary
powers may not yet be defunct. In any event, if there is any
doubt whether the functions of the competent authority have a
judicial flavour it is expedient to apply for mandamus as well as
certiorari.
Turning to the jurisprudence, the British case of
Regina v. Paddington Valuation Officer 9 refused
to issue certiorari and mandamus on the facts but
Lord Denning stated at page 403:
I would say that if a tribunal or body is guilty of an error which
goes to the very root of the determination, in that it has
approached the case on an entirely wrong footing, then it does
exceed its jurisdiction.
and Salmon L.J. stated at page 419:
In order for mandamus to lie, it must be established that he has
prepared the list illegally or in bad faith, so that in effect he has
not exercised his statutory function at all and that accordingly
there is in reality no valid list in existence: Reg. v. Cotham, etc.,
JJ. and Webb; Ex parte Williams [1898] 1 Q.B. 802. Accord
ingly, it seems to me that a finding that the list is null and void
is necessarily implicit in an order of mandamus.
In The Queen v. Cotham and Another, Justices,
and Wallace and Webb 1 ° which was referred to in
the Paddington case, Kennedy J. stated at page
808:
I do not say that the remedy applies where there has been a
mere misconstruction of an Act of Parliament; but where, as
here, they have disregarded the provision of the statute which
gives them jurisdiction, and have considered matters which they
ought not to consider, then they have made themselves subject
to the remedial power of the process by mandamus.
The Supreme Court case of Gana v. The Minis
ter of Manpower and Immigration" referred to by
respondent can readily be distinguished. In that
case Abbott J. stated at page 712:
The decision, to grant or refuse such status in accordance
with the Act and the regulations, is made in the discretion of
the immigration officer at the port of entry, and is an adminis
trative decision. It is not subject to review judicial or otherwise
by anyone other than the Minister. In many cases, would-be
immigrants are examined abroad as to their suitability and, if
found to be acceptable, are granted a visa authorizing them to
enter Canada as landed immigrants. If permission is refused
that is the end of the matter. [Emphasis added.]
The words which I have underlined indicate the
distinction since in the present case I have found
that the wrong regulation was being applied.
9 [1966] 1 Q.B. 380.
10 [1898] 1 Q.B. 802.
" [1970] S.C.R. 699.
In the case of The Queen and D. N. McDonell v.
Leong Ba Chai 1 z mandamus was issued when the
admission of a child had been refused because of
an error in law respecting its legitimacy, directing
the immigration officer appointed to fulfil a par
ticular act to carry out his statutory duty to deter
mine whether the child otherwise complied with
the provisions of the Immigration Act. On page 14
Taschereau J. stated:
What is asked is not the admission of Ba Chai into Canada, but
the consideration of his application which must be examined in
the light of the Immigration Act. This has been illegally denied.
See also Smith & Rhuland Limited v. The Queen,
on the Relation of Brice Andrews 13 where man-
damus was issued when the Labour Relations
Board had refused certification of the union on the
basis of a consideration not appearing in the
statute.
In Tsiafakis v. Minister of Manpower and
Immigration" mandamus was issued ordering the
immigration officer to provide the necessary form
for petitioner to sponsor her parents for admission
to Canada, even though it was unlikely that once
this form was completed, they would qualify for
admission. This judgment was confirmed by the
Court of Appeal in a judgment dated January 20,
1977, and reported at [ 1977] 2 F.C. 216.
Referring to Rule 474, subsection (1) of it reads
as follows:
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, or
(b) determine any question as to the admissibility of any
evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for the
purposes of the action subject to being varied upon appeal.
and it must be noted that this gives the Court
discretion and also that the use of the words "of a
matter" are perhaps sufficiently broad to apply to
such determination on a motion such as the
present. This was discussed in the Court of Appeal
' 2 [1954] S.C.R. 10.
13 [1953] 2 S.C.R. 95.
14 [1976] 2 F.C. 407.
judgment of Jamieson and Lessard v. Carota 15 in
which the Court concluded that the question of
law could not be decided on the record as it stood
at the time and that in any event the decision of
the Trial Court that it was not expedient to deter
mine the question of law at that time was a matter
of discretion and no reason had been advanced for
interfering with the exercise of this discretion. In a
footnote however Chief Justice Jackett states [at
page 244]:
Ordinarily in my view, no application should be made under
Rule 474 until a defence has been filed so that the question of
expediency can be decided having regard to the matters that
have been put in issue.
This is probably not applicable in the present cases
where the issue was fully argued by counsel for
both parties on applicant's motions. However, it is
not really necessary to decide the question of
non-retroactivity of the new regulation as a ques
tion of law since the decision to this effect is
implicit in any event in the finding that mandamus
should issue to consider the applications on the
basis of the Regulations as they existed at the date
the applications were made. Similarly since by the
mandamuses to be issued herein respondent will be
directed to consider the applications on the basis of
the regulations as of that date it may be implicit in
this finding that the adverse decision in connection
with the application with respect to Anthony must
of necessity be quashed. Judgments in both
applications will be issued accordingly with these
reasons being applicable to both.
15 [1977] 2 F.C. 239.
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.