A-585-82
Ho Foo Tam (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Heald J. and
Primrose D.J.—Edmonton, October 25, 26 and 27;
Ottawa, December 9, 1982.
Judicial review — Applications to review — Immigration
Inquiry adjourned to allow application for Minister's permit
— Minister's decision awaited — Further adjournment denied
and deportation order made — Whether delegated officer
having power to deal with matter when in Minister's hands —
Procedurally unfair for inquiry to proceed in circumstances —
Adjudicator erred in refusing to hear submissions of counsel
— Unnecessary to deal with allegation of actual or
apprehended bias — Deportation order set aside — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 26(2), 27(2)(e), 28, 37,
104(2), 115(2), 123 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 18, 28.
Immigration — Inquiry adjourned to allow application for
Minister's permit — Minister's decision awaited — Further
adjournment denied and deportation order made — Deporta
tion order set aside as Adjudicator's conduct manifestly unfair
— Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(e),
(2)(a), 26(2), 27(2)(e), 28, 37, 39(1), 40(1), 42(b), 83(1), 104(2),
115(2), 123.
The applicant had been ordered deported as a person who
entered Canada as a visitor and remained here after ceasing to
be such, contrary to paragraph 27(2)(e) of the Act. A section
28 application was brought to review and set aside the order for
procedural unfairness and denial of natural justice. The inquiry
had been adjourned to enable applicant to apply for a Minis
ter's permit. An application, on compassionate grounds, had
been made and a letter received from the Minister's office
advising that he had requested a report from the appropriate
officials. While the Minister's decision was awaited, a local
departmental official took the position before the Adjudicator
that the inquiry should proceed. The Adjudicator upheld the
local official's arguments and refused an adjournment.
Held, the application should be allowed and the deportation
order set aside.
Per Thurlow C.J. (Primrose D.J. concurring): Applicable to
the instant case were the principles of fairness discussed by
Laskin C.J.C. in Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [1979] 1 S.C.R. 311 and by
Le Dain J. in Inuit Tapirisat of Canada et al. v. His Excellen-
cy the Right Honourable Jules Léger, et al., [1979] 1 F.C. 710
(C.A.). While the situation was different, the principle was the
same. In the circumstances of this case, fairness required that
the inquiry not be pursued until applicant had received an
answer from the Minister or someone authorized by him to give
it. Although the request was made directly to the Minister and
was acknowledged by his office, it did not appear that the
request was ever referred by the Minister for disposition by any
Departmental officers delegated under section 123 to exercise
the Minister's section 37 powers. Nor did it appear that the
Immigration Centre Manager who forced the inquiry on was
even aware of the compassionate grounds set forth in the
applicant's letter to the Minister. The Court was not persuaded
that a delegated officer could assume authority to deal sum
marily with an application which had been made to the Minis
ter himself and was in his hands for consideration. The appli
cant's request for a permit had not in fact been considered by
an official in a position to decide it and it was procedurally
unfair to force the inquiry on while the Minister's reply was
awaited.
Per Heald J.: The Adjudicator proceeded in a manifestly
unfair manner in refusing to hear counsel's submissions as to
the relevance of the Jiminez-Perez case and in respect of the
subsection 115(2) application to the Governor in Council for
relief on humanitarian grounds. In view of the error by the
Adjudicator in refusing to hear counsel, it is unnecessary to
deal with the issue of apprehended or actual bias. It was hard
to say which participant in the proceedings made the greatest
contribution to the rancorous atmosphere evident from the
transcript.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311.
APPLIED:
Inuit Tapirisat of Canada et al. v. His Excellency the
Right Honourable Jules Léger, et al., [1979] I F.C. 710
(C.A.).
REFERRED TO:
Ramawad v. The Minister of Manpower and Immigra
tion, [1978] 2 S.C.R. 375; Louhisdon v. Employment and
Immigration Canada, [1978] 2 F.C. 589 (C.A.); 01oko v.
Canada Employment and Immigration et al., [1978] 2
F.C. 593 (C.A.); Jiminez-Perez et al. v. Minister of
Employment and Immigration, et al., [1983] 1 F.C. 163
(C.A.); Re Mauger and Minister of Employment &
Immigration (1980), 119 D.L.R. (3d) 54 (F.C.A.).
COUNSEL:
Donald Lee for applicant.
Felicity Hunter for respondent.
SOLICITORS:
Witten, Vogel, Binder & Lyons, Edmonton,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside a
deportation order made against the applicant on
June 16, 1982. The order is attacked on grounds of
procedural unfairness and failure to observe prin
ciples of natural justice in that the applicant was
denied an adjournment of the inquiry pending an
answer to his requests on compassionate grounds
made both to the Minister for a permit under
section 37' of the Act and to the Governor in
' 37. (I) The Minister may issue a written permit authorizing
any person to come into or remain in Canada if that person is
(a) in the case of a person seeking to come into Canada, a
member of an inadmissible class, or
(b) in the case of a person in Canada, a person with respect
to whom a report has been or may be made under subsection
27(2).
(2) Notwithstanding subsection (I), a permit may not be
issued to
(a) a person against whom a removal order has been made
who has not been removed from Canada pursuant to such an
order or has not otherwise left Canada, unless an appeal
from that order has been allowed;
(b) a person to whom a departure notice has been issued who
has not left Canada; or
(c) a person in Canada with respect to whom an appeal made
pursuant to section 79 has been dismissed.
(3) A permit shall be in force for such period of time not
exceeding twelve months as is specified in the permit.
(4) The Minister may at any time, in writing, extend or
cancel a permit.
(5) The Minister may, upon the cancellation or expiration of
a permit, make a removal order against the person to whom the
permit was issued or direct that person to leave Canada within
a specified period of time.
(6) Where a person who has been directed by the Minister to
leave Canada within a specified period of time fails to do so,
the Minister may make a deportation order against that person.
(7) The Minister shall, within thirty days following the
commencement of each fiscal year or, if Parliament is not then
sitting, within the first thirty days next thereafter that Parlia
ment is sitting, lay before Parliament a report specifying the
(Continued on next page)
Council for exemption under subsection 115(2) z of
the Act and in that the Adjudicator displayed bias
and hostility towards the applicant's counsel.
The deportation order recites that the applicant
was born in Hong Kong and is a citizen of the
United Kingdom and colonies. It orders him to be
deported on the ground that he was a person
described in paragraph 27(2)(e) of the Immigra
tion Act, 1976, S.C. 1976-77, c. 52, viz., a person
other than a Canadian citizen or permanent resi
dent who entered Canada as a visitor and remains
therein after ceasing to be a visitor. The record
discloses that the applicant came to Canada in
December 1977, that he was the subject of a notice
of arrest under subsection 104(2) of the Act, dated
April 23, 1982, alleging he was a person described
in paragraph 27(2)(e) of the Act and that under
section 28 of the Act an inquiry was scheduled for
April 28, 1982. It also appears that the inquiry
was adjourned to May 28, 1982 and on that date
further adjourned to June 15, 1982. Who it was
that granted these adjournments or why the first
of them was granted does not appear. With respect
to the second, the Case Presenting Officer, in the
course of responding to the applicant's first request
on June 15, 1982 for a further adjournment,
informed the Adjudicator that:
I was advised today that Mr. Tam wished to seek consideration
from the Minister. In fact the inquiry was postponed previously
from May 28th to this date because it was indicated upon Mr.
Lee's part that this was being looked into.
On May 28, 1982, two letters had been written
by or on behalf of the applicant—one addressed to
(Continued from previous page)
number of permits issued during the preceding calendar year
and in respect of each permit issued
(a) to a person seeking to come into Canada, the inad
missible class of which that person is a member; or
(b) to a person in Canada, the applicable paragraph of
subsection 27(2) pursuant to which a report has been or may
be made.
'115. ...
(2) The Governor in Council may by regulation exempt any
person from any regulation made under 'subsection (1) or
otherwise facilitate the admission of any person where the
Governor in Council is satisfied that the person should be
exempted from such regulation or his admission should be
facilitated for reasons of public policy or due to the existence of
compassionate or humanitarian considerations.
the Governor in Council; the other to the Minister.
They read:
The Governor in Council,
OTTAWA, Ontario
Dear Sirs:
I am applying for an exemption pursuant to Section 115(2) of
the Immigration Act, 1976, which states as follows:
"The Governor in Council may by regulation exempt any
person from any regulation made under subsection (1) or
otherwise facilitate the admission of any person where the
Governor in Council is satisfied that the person should be
exempted from such regulation or his admission should be
facilitated for reasons of public policy or due to the existence
of compassionate or humanitarian considerations."
My case is presently being considered by the Canada Immigra
tion Centre in Edmonton, Alberta, who are refusing to allow
me to remain in Canada (their file number: 4712-6993 XY).
I originally entered Canada in December of 1977 and have
lived in this country since that date. During my stay in Canada,
I have been able to support myself with adequate financial
assistance from my parents in Hong Kong. My father is an
accountant in Hong Kong and my mother is a beautician in
Hong Kong and they regularly forward to me $350.00 Canadi-
an per month for living expenses. I was born in Hong Kong,
and have one brother who is approximately two years older,
who graduated with a Bachelor of Commerce degree in Japan
and one sister, who is approximately one year younger than I,
and who is presently working in Hong Kong. I require until
December of 1982 to complete my degree at the University of
Alberta in Edmonton, Alberta, in the Faculty of Arts majoring
in Geography.
While there are obvious problems in my file, which would be
readily apparent upon your review of it, I urge you to allow me
to complete my studies here as aforesaid. My family and I will
face total humiliation if I am forced to return to Hong Kong in
these circumstances. My parents and I are extremely disap
pointed and depressed by my present state of affairs in Canada
and I humbly request that you please consider authorizing an
exemption pursuant to Section 115(2) of the Immigration Act,
1976 due to the circumstances of this case, in order that I can
complete my said education. I enclose herewith a copy of a
letter dated May 27, 1982 from E. Reinhold, Associate Dean of
The University of Alberta, Faculty of Arts, Edmonton, Alberta,
advising me that I can be admitted as a probationary student.
Your review of this matter is greatly appreciated.
Yours truly,
TONY HO FOO TAM
End.
The Honourable Lloyd Axworthy
Minister of Employment and Immigration
House of Commons
OTTAWA, Ontario
Dear Sir:
I am writing to you to apply for a Minister's Permit.
My case is presently being considered by the Canada Immigra
tion Centre in Edmonton, Alberta, who are refusing to allow
me to remain in Canada (their file number 4712-6993XY).
I originally entered Canada in December of 1977 and have
lived in this country since that date. During my stay in Canada,
I have been able to support myself with adequate financial
assistance from my parents in Hong Kong. My father is an
accountant in Hong Kong and my mother is a beautician in
Hong Kong and they regularly forward to me $350.00 Canadi-
an per month for living expenses. I was born in Hong Kong,
and have one brother who is approximately two years older,
who graduated with a Bachelor of Commerce degree in Japan
and one sister, who is approximately one year younger than I,
and who is presently working in Hong Kong. I require until
December of 1982 to complete my degree at the University of
Alberta in Edmonton, Alberta, in the Faculty of Arts majoring
in Geography.
While there are obvious problems in my file, which would be
readily apparent upon your review of it, I urge you to allow me
to complete my studies here as aforesaid. My family and I will
face total humiliation if I am forced to return to Hong Kong in
these circumstances. My parents and I are extremely disap
pointed and depressed by my present state of affairs in Canada
and I humbly request that you please consider authorizing a
Minister's Permit for me to remain in Canada due to the
circumstances of my case, to complete my said education. I
enclose herewith a copy of a letter dated May 27, 1982 from E.
Reinhold, Associate Dean of The University of Alberta, Facul
ty of Arts, Edmonton, Alberta, advising me that I can be
admitted as a probationary student. Your review of this matter
is greatly appreciated.
Yours truly,
TONY HO FOO TAM.
Encl.
By June 15, 1982, when the inquiry was
resumed the applicant had received no reply to the
letter addressed to the Governor in Council but
had received a reply from the office of the Minis
ter, dated June 3, 1982. It read:
Dear Mr. Tam:
The Minister, the Honourable Lloyd Axworthy, has asked
me to acknowledge your letter of May 28, 1982, concerning
your request for a Minister's Permit.
A report will be requested from the appropriate officials and
the Minister will be writing to you as soon as he has reviewed
the report.
Yours sincerely,
Charles J.G. Verge
Coordinator,
Secretariat Services
I should note at this point that nothing that I
have found in the record indicates that the
Adjudicator, when resuming the inquiry on June
15, 1982, was aware of this correspondence. Nor
does it appear that the Case Presenting Officer or
the Manager of the Canada Immigration Centre
at Edmonton had been aware of it. Moreover, it
seems possible that the applicant's counsel as well
was not aware at that time of the Minister's letter.
On resumption of the inquiry, counsel for the
applicant requested an adjournment. The tran
script of this portion of the proceedings is frag
mentary but the following appears (addendum
number 1, pages A and B):
BY ADJUDICATOR TO COUNSEL
I note that this inquiry was originally scheduled to be held on
April 28th, 1982 and my diary explains that it has been
rescheduled until this date.
A. Sir, I discussed with Mrs. Bacon an application I intend
(to put before you with a request) to have this matter
adjourned. Subject to that, I am certainly ready to
proceed.
BY ADJUDICATOR TO CASE PRESENTING OFFICER
Q. Mrs. Bacon?
A. The Commission would object to an adjournment at this
time.
BY ADJUDICATOR TO COUNSEL
Q. What is your application based on Mr. Lee? What are
you talking about?
A. Mr. Tam caused letters to be issued to the Governor in
Council (with reference to section) 115(2) of the Immi
gration Act which would authorize the Governor in
Council to exempt Mr. Tam from any Regulations under
the Immigration Act. This letter was sent in May, as well
as a letter to the Minister of Immigration also in May,
asking the Minister to please consider a Minister's Permit
under the appropriate section of the Act. ( ) Sir, we
feel that based on the information contained in the letters
which (would) compel considerations which are based on
this case. There are a number of considerations to consid
er under the applicable ( ).
Q. ( ) can be dealt with, is that right?
A. Yes sir, We understand that the parties involved are
considering the matter ( )-
Mr. Lee, all I want is the basis of your request. (an objection to
an adjournment was raised) by Mrs. Bacon.
BY ADJUDICATOR TO CASE PRESENTING OFFICER
Q. Mrs. Bacon, was this all known to you as the Minister's
representative?
A. I was advised today that Mr. Tam wished to seek con
sideration from the Minister. In fact the inquiry was
postponed previously from May 28th to this date because
it was indicated upon Mr. Lee's part that this was being
looked into.
A. The Commission is objecting to an adjournment because
it is felt that the issuance of a Permit is purely discretion-
ary. The authority to issue a Permit on behalf of the
Minister ...
Q. Yes?
A. I have discussed the matter with the Minister's delegate,
(the Manager of the Canada Immigration Centre, and
she has) requested that the inquiry proceed.
Thank you.
BY ADJUDICATOR TO COUNSEL
Q. Mr. Tam and Mr. Lee ...
A. Sir, I would point out that ... (
Q. Well, this is outside my authority. You must be aware of
that.
A. (From what I understand, it is) totally within your au
thority to grant an adjournment.
Q. I refer you to the Regulations regarding adjournments
( ).
A. ( ) welcome that discussion. I would like to give
you the cases on the matter ( ) which would also
allow you to grant an adjournment where the circum
stances are proper. ( ) simply to allow the appropri
ate authorities (time to reply to Mr. Tam's letters.)
Q. Is there anything more?
A. ( ).
RECESS
Following the recess counsel for the applicant
further argued at some length that the adjourn
ment should be granted, concluding, after citing
the Ramawad 3 case, as follows (addendum
number 1, pages D and E):
Q. Thank you. Are you suggesting that this fits your client's
situation?
A. Yes sir the situation is that we have a case where we feel
the Minister is still considering this situation (and if the
inquiry were to continue) you could issue a deportation
order depriving my client of the Minister's decision. (If
the Minister) decided he can stay, it may be too late.
( ) I state clearly ( ).
BY ADJUDICATOR TO COUNSEL
(The Minister has) exercised his discretion in issuing a Permit.
It has been exercised through the Minister's delegate. The
Manager of the Canada Immigration Centre has the authority
to issue a Permit or not to issue a permit and has decided not to
issue a Permit in that case. She had not made a decision on the
application made because at that point it was before the Senior
Immigration Officer and there was no information that the
Minister's decision had been made. Mr. Tam's case is different.
The Case Presenting Officer, Mrs. Bacon, has quite adequately
informed me of this. I am satisfied and we will hear no more on
it.
3 Ramawad v. The Minister of Manpower and Immigration,
[1978] 2 S.C.R. 375.
A. Once again, ( ) say that I attempted to give this to
you, with all respect ...
Q. Please, no more!
Counsel for the applicant then presented a
second application for adjournment based on a
proceeding brought by the Department against the
applicant in a provincial court which was to be
heard the following day. On that request being
denied counsel presented a third application to
adjourn, this to afford him an opportunity to make
an application to the Federal Court for prohibi
tion. The Adjudicator's response was that unless
counsel had a writ the inquiry would not be
adjourned.
At that point the inquiry was recessed until the
afternoon. When it was resumed counsel served
the Adjudicator and the Case Presenting Officer
with notice of an application to the Federal Court
for prohibition and submitted that in view of this
application in the interests of natural justice the
matter should be adjourned until the Federal
Court had had an opportunity to deal with the
matter. The following appears from the transcript
(pages 3, 4 and 5):
BY COUNSEL TO ADJUDICATOR
* * *
I would hope sir, that in view of this application, however,
which we have just managed to get completed over the lunch
hour period between the first adjournment and this adjourn
ment, that you would now see fit to allow the Federal Court to
have jurisdiction over the application. I would also add sir, that
one item that was not put before you today because it was not
available and it is part of the affidavit and also is a letter from
the Minister dated June 3rd, and I have mentioned it to Mrs.
Bacon whereby the Honourable Minister Mr. Axworthy has
acknowledged by [sic] client's letter and has indicated sir, that
a report will be requested from appropriate officials and the
Minister will be writing to you as soon as he has received this
report, so its [sic] obvious sir at least in my understanding of
the situation that whatever the Commission here may feel, the
Minister himself is still considering this matter and I'd like to
show you the original of this letter which, as I say, is part of the
affidavit.
A. And the letter is dated June the 3rd.
That's right sir. We've had no further correspondence from that
time and I submit that that's just a further indication that
something is happening and that in fact the Commission's
position that no permit will be issued in the circumstances is
not complete in the sense that the Minister is certainly did ...
is not saying the same thing as the Commission is.
A. Mr. Lee, have you completed this presentation?
Yes sir, although I must say that this morning there were other
matters that I wanted to discuss, but you have made your
rulings on those items and indicated that you were not going to
entertain any further discussion, however on this matter, sir I
think that the situation is quite clear and that ...
A. Very well. Thank you Mr. Lee.
BY ADJUDICATOR TO CASE PRESENTING OFFICER
Q. Mrs. Bacon, do you have comments to make on this latest
development?
A. I would only say Mr. Adjudicator that at the earlier
sitting of the inquiry the Commission was not aware of
the fact that the Minister's officer, not the Minister
personally, but the Minister's office had acknowledge
[sic] receipt of Mr. Tam's correspondence. The letter
itself seems to ...
Q. You're talking about the letter Mr. Tam presented?
A. That's correct sir.
Q. Or Mr. Lee presented?
A. Yes sir.
Q. Dated June the 3rd?
A. Yes. The letter does indicate that the Minister will be
writing to Mr. Tam.
Q. And you are unaware of that?
A. I was unaware of that at the time sir.
Q. And what does this cause? Cause you any problems?
Have you changed your view point from this morning?
A. (no response)
Q. Do you wish an adjournment?
A. Mr. Adjudicator, might I have a brief recess, perhaps of
five minutes?
Q. Yes and then ...
A. ... in order to ...
Q. ... we'll deal them. I've presently asked you about the
comments. You've partly answered them. I will also want
your comments with regards to these documents present
ed by Mr. Lee and for the record,
A. (no response)
I'M GOING TO ENTER IN ONE BUNDLE AS EXHIBIT P-I
THE ORIGINATING NOTICE OF MOTION AND WHAT
APPEARS TO BE AN AFFIDAVIT THAT JOINS IT, AND THIS
LETTER FOR EXHIBIT AND THE LETTER DATED JUNE
THE 3RD TO MR. TONY HO FOO TAM IN EDMONTON
FROM CHARLES J. VERGE, COORDINATOR SECRETARIAT
SERVICES AND THE LETTER HEAD IS OFFICE OF THE
MINISTER, AND FROM IMMIGRATION. IN ONE BUNDLE
AS EXHIBIT P-I,
We will recess.
RECESS
Q. Mrs. Bacon?
A. Yes sir, first of all I would like to say I'm sorry for the
delay because of the time differences between here and
Ottawa, I had difficulty in contacting someone there. Mr.
Adjudicator, with respect to the Motion or Originating
Notice of Motion concerning the continuation of this
inquiry, the Commission does not feel that this should
impede the inquiry process. I would refer to the case of
Samuel Lee Nelson, a case before the Federal Court of
Canada, Trial Division where the Federal Court dis
missed an application for a writ of prohibition to prevent
the adjudicator from continuing the inquiry when a
permit was outstanding. In terms of the Commission's
position as to whether or not it believes this inquiry would
proceed, I would re-state my position of this morning.
The Commission would object to an adjournment and
does request the inquiry proceed. Thank you.
Thank you.
BY ADJUDICATOR TO COUNSEL
Mr. Lee, I have provided you with my answer to your request
that I adjourn while you approach the Federal Court Trial
Division this morning.
A. Sir as I recall, the reason that struck me as being most
cogent in your mind was that the Commission was saying
that in fact there would be no consideration given to our
application. Now the Commission seems to ... the writ
ten evidence is certainly clear and now even in ... in the
submissions that have been made by learned friend, Mrs.
Bacon, the position seems to have changed somewhat.
They're not taking the hard line that they were this
morning where they indicated categorically that ... that
there would be no consideration given. I believe sir that
you're [sic] reasoning was predicated on the fact that
there was a difference between the case that I had
referred you to and the case that Mr....
Mr. Lee please, Mr. Lee.
BY ADJUDICATOR TO CASE PRESENTING OFFICER
Q. Mrs. Bacon, your position is that as the Minister's repre
sentative that you seek that the inquiry proceed at this
time?
A. That is correct sir, as I indicated this morning, the
Minister's discretion in the issuance of the Permit has
been exercised. It has been exercised by his delegate the
Manager of this office and I do have ... you would want
it entered for the record, a memo from the Manager to
the Case Presenting Unit requesting that the inquiry
proceed.
I don't believe I need it. I've asked you your view point as the
Minister's representative.
BY ADJUDICATOR TO COUNSEL
Mr. Lee, possibly I'm under a misapprehension that I haven't
explained to you - with regard to your request for an adjourn
ment while you ... your client approaches the Federal Court
Trial Division for an order prohibiting me from proceeding. I
expressed this morning that unless you had a writ, an order
from the court and I explained to you that in my view it would
be more correct procedure on your part to await my decision.
To adopt a different view is to adopt that you could stop every
inquiry by merely making an application to the court. I am not
going to grant your request for an adjournment. We have been
underway considerable time and it has been spent with you
[sic] objections and requests for adjournment. This inquiry will
proceed.
A. Sir if I might speak on this issue ...
Q. Are you arguing with what I said?
A. I am making submissions sir. Are you suggesting that I
cannot make submissions?
Q. No, I'm not going to entertain further argument Mr. Lee.
A. That's fine sir.
Q. Have you something new?
A. Well I feel that ...
Q. Have you something new?
A. Well I feel ...
Q. Something new?
A. ... I have something new sir.
Q. Have you a new reason for requesting an adjournment?
A. Well, I was simply going to say sir, ...
Q. Mr. Lee, answer my question.
A. Yes sir ...
Q. Have you a new reason for requesting an adjournment?
A. Sir with all respect, if there ... throughout the course of
these proceedings...
Q. Mr. Lee ...
A. ...lfeel...
Q. ... although you say with all due respect, you just
continue in defiance of my request to proceed. The
requests you have made for an adjournment are denied.
A. (no response)
The foregoing exposes the basis for what
appears to me to be the most serious of the many
points raised on behalf of the applicant. The case
is not simply one in which a request for a Minis
ter's permit is made before or during an inquiry
and an adjournment is then demanded to await a
reply. Vide Louhisdon v. Employment and Immi
gration Canada 4 and Oloko v. Canada Employ
ment and Immigration et al. 5 It is a case in which
an inquiry had been adjourned to enable the
person concerned to apply for a Minister's permit,
the application had been made to the Minister at
Ottawa citing compassionate grounds for consider
ation, the Minister's office had acknowledged the
request and promised a reply after receiving a
report and the reply had not yet been received.
° [1978] 2 F.C. 589 (C.A.).
5 [1978] 2 F.C. 593 (C.A.).
Moreover, so far as appears it has never been
received.
In these circumstances, can it be said that the
procedure followed by the Department was fair to
the applicant when on June 15, 1982 while the
applicant was still awaiting the Minister's prom
ised reply a local departmental official insisted
that the inquiry, the result of which would prob
ably be to deprive the Minister of his authority to
grant a permit, should proceed and not be
adjourned.
The principles to be applied appear from the
following passages from the judgment of Laskin
C.J.C., in Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police: 6
In short, 1 am of the opinion that although the appellant
clearly cannot claim the procedural protections afforded to a
constable with more than eighteen months' service, he cannot
be denied any protection. He should be treated "fairly" not
arbitrarily. I accept, therefore, for present purposes and as a
common law principle what Megarry J. accepted in Bates v.
Lord Hallsham ([1972] 1 W.L.R. 1373), at p. 1378, "that in
the sphere of the so-called quasi-judicial the rules of natural
justice run, and that in the administrative or executive field
there is a general duty of fairness".
In my opinion, the appellant should have been told why his
services were no longer required and given an opportunity,
whether orally or in writing as the Board might determine, to
respond. The Board itself, I would think, would wish to be
certain that it had not made a mistake in some fact or
circumstance which it deemed relevant to its determination.
Once it had the appellant's response, it would be for the Board
to decide on what action to take, without its decision being
reviewable elsewhere, always premising good faith. Such a
course provides fairness to the appellant, and it is fair as well to
the Board's right, as a public authority to decide, once it had
the appellant's response, whether a person in his position should
be allowed to continue in office to the point where his right to
procedural protection was enlarged. Status in office deserves
this minimal protection, however brief the period for which the
office is held.
and from the judgment of Le Dain J., in Inuit
Tapirisat of Canada et al. v. His Excellency the
Right Honourable Jules Léger, et al.: 7
Procedural fairness, like natural justice, is a common law
requirement that is applied as a matter of statutory interpreta
tion. In the absence of express procedural provisions it must be
found to be impliedly required by the statute. It is necessary to
consider the legislative context of the power as a whole. What is
6 [1979] 1 S.C.R: 31 1 at pp. 324 and 328.
7 [1979] 1 F.C. 710 (C.A.) at p. 717.
really in issue is what it is appropriate to require of a particular
authority in the way of procedure, given the nature of the
authority, the nature of the power exercised by it, and the
consequences of the power for the individuals affected. The
requirements of fairness must be balanced by the needs of the
administrative process in question.
In general, the cases on this subject deal with
situations raising the question of the extent of the
right of the person affected by a decision to be
heard. This case differs in that respect. Here the
case is one of an official insisting on a course that
would stultify an application which the applicant
had been given an opportunity to make and which
he had made on grounds that could be considered
for the purposes of section 37 but which could not
be considered in the course of the inquiry on which
the official insisted. But while the situation is
different the principle to be applied is the same.
The official, even if exercising a purely administra
tive power, must act fairly.
In my opinion, the procedure adopted by the
Department was lacking in fairness. One may
assume, because it is irrelevant, that the applicant
had overstayed, that he was subject to deportation
and that he had nothing to put before the
Adjudicator in answer to the allegation. Even so,
he was entitled to procedural fairness at the hands
of the Department when dealing with him. In my
opinion, having had the inquiry adjourned on May
28, 1982 for the purpose of enabling him to apply
to the Minister and having received the Minister's
undertaking to write him after receiving a report,
fairness required that the inquiry not be pursued
until he had been given an answer by the Minister
or by someone in the Department authorized by
the Minister to give it for him.
It is, I think, important to recall that the appli
cant's request was not made to a local official to
whom authority to exercise the Minister's powers
under section 37 had been delegated under section
123. 8 The request was made directly to the Minis
ter. It was acknowledged directly by the Minister's
office by a letter that promised that the Minister
would write to him in reply. No reply ever came
from that source. Nor does it appear that the
applicant's request was ever referred by the Minis
ter to be dealt with or answered by any of the
Department's officers delegated under section 123
to exercise the Minister's powers under section 37.
It does not even appear that the Manager of the
Canada Immigration Centre who forced the con
tinuance of the inquiry was aware of or ever
considered the compassionate grounds for a permit
put forward by the applicant in his letter to the
Minister. All that does appear in that respect is
that at the morning session on June 15, 1982, the
Case Presenting Officer stated that the officer in
question, who is said to be a delegated officer but
who apparently was not then aware of the appli
cant's request to the Minister or of the grounds for
the request or of the Minister's reply, had exer
cised the Minister's discretion and had insisted
both in the forenoon, and in the afternoon after
learning of the Minister's letter, that the inquiry
proceed.
I can understand a delegated officer exercising
the Minister's powers in respect of an application
made at the immigration office where he serves. I
can understand such an officer dealing with an
application which, though made elsewhere, has
been referred to his office for disposition. I am not
persuaded that it lies within the authority of such
a delegated officer in one place to assume, on his
own, authority over and deal summarily with an
application made at another office perhaps several
thousand miles away. Nothing in the record dis -
8 123. The Minister or the Deputy Minister, as the case may
be, may authorize such persons employed in the public service
of Canada as he deems proper to exercise and perform any of
the powers, duties and functions that may or are required to be
exercised or performed by him under this Act or the regula
tions, other than the powers, duties and functions referred to in
paragraphs 19(1)(e) and 19(2)(a), subsections 39(1) and
40(I), paragraph 42(b) and subsection 83(1), and any such
duty, power or function performed or exercised by any person
so authorized shall be deemed to have been performed or
exercised by the Minister or Deputy Minister, as the case may
be.
closes that the Manager of the Canada Immigra
tion Centre at Edmonton had, without more, au
thority to deal with and refuse a request made
directly to the Minister and which, as his letter
shows, was in his hands for consideration.
Moreover, nothing in the record, as I read it,
discloses that any written or oral answer to the
application for a permit was given to the applicant
even by that official. What, as it seems to me,
occurred was that the officer simply insisted on an
inquiry proceeding which, if it resulted in a depor
tation order, would put an end to the application
for a permit. Even the document tendered by the
Case Presenting Officer and declined by the
Adjudicator, as described by the former, was not a
reply to the application for a permit. It was
described as a memo requesting that the inquiry
proceed. I am accordingly of the view that the
applicant's request for a permit had not in fact
been considered by an official in a position to
decide it and that it was procedurally unfair to
force the inquiry to a conclusion while the appli
cant still awaited the reply which the Minister had
promised.
In view of this conclusion, it is unnecessary for
me to consider further or to deal with the other
points raised.
I would set aside the deportation order.
PRIMROSE D.J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the deportation order made
against the applicant by Adjudicator, E. C. Berry,
on June 16, 1982. The deportation order was made
on the basis that the applicant was a person
described in paragraph 27(2)(e) of the Immigra
tion Act, 1976, in that he was a person in Canada
other than a Canadian citizen or a permanent
resident who entered Canada as a visitor and
remained therein after ceasing to be a visitor
because he remained in Canada for a period of
time longer than that for which he was authorized
to remain in Canada. The evidence taken at the
inquiry established that the applicant, a native of
Hong Kong, first entered Canada at Vancouver on
December 20, 1977. He was not asked how long he
intended to stay in Canada by the immigration
officer nor was there any notation on his passport
as to the length of stay granted to him. The
Adjudicator pointed out, correctly in my view, that
pursuant to the provisions of subsection 26(2) of
the Act, a visitor is not authorized to remain in
Canada for a period in excess of three months
from the day on which he was granted entry unless
"... otherwise specified in writing by an immigra
tion officer or an adjudicator ...". The evidence
also established that the applicant had never
applied for any further extensions and the
Adjudicator held that, in the absence of evidence
to the contrary, he was entitled to conclude that
the applicant had not left Canada at any time
since he was present at the inquiry. 9 On this basis
he went on to find that the applicant had remained
in Canada after ceasing to be a visitor and was,
accordingly, a person described in paragraph
27(2)(e) of the Immigration Act, 1976.
The events of significance leading up to the
inquiry and the issuance of the deportation order
were as follows. The applicant was arrested on
April 23, 1982 pursuant to section 104 of the
Immigration Act, 1976. He was originally sum
moned to inquiry on April 28, 1982, the inquiry
was adjourned to May 28, 1982 and again
adjourned on that date to June 15, 1982. The
inquiry opened on June 15, in the presence of the
applicant and his counsel and proceeded on that
day from approximately 9 a.m. until approximate
ly 5 p.m., with a recess for lunch and two short
recesses during the course of the afternoon pro
ceedings. At approximately 5 p.m., the inquiry was
adjourned to 1 p.m. the following day June 16,
1982 and completed that afternoon when the
deportation order was issued.
Counsel for the applicant attacks subject depor
tation order on two principal grounds: firstly, that
there was procedural unfairness and a denial of
9 The Adjudicator made these findings based on the entries
in the applicant's passport and on the evidence of immigration
officer Haist who had conversed with the applicant. The appli
cant, on the advice of counsel, declined to give evidence at the
inquiry.
natural justice in the Adjudicator's conduct
throughout the course of the inquiry proceedings
and, secondly, that the Adjudicator throughout the
course of the inquiry conducted himself with open
hostility towards applicant's counsel so as to give
rise to a reasonable apprehension of bias or actual
bias sufficient to vitiate the proceedings and the
deportation order which he issued at the conclu
sion thereof.
Dealing with the initial attack referred to supra,
this submission is based on the Adjudicator's
refusal to grant the request of applicant's counsel
to adjourn the inquiry proceedings in the following
circumstances. On May 28, 1982, the applicant
wrote to the Minister of Employment and Immi
gration and in that letter, he applied for a Minis
ter's permit, asking that he be allowed to remain in
Canada until December of 1982 when he expected
to complete his degree at the University of Alber-
ta, Edmonton, in the Faculty of Arts majoring in
Geography. Although the statutory basis for the
issuance of the Minister's permit is not specifically
referred to in the letter, it is common ground that
the Minister had authority to issue such a permit
pursuant to the provisions of subsection 37(1) of
the Immigration Act, 1976. 10 The applicant wrote
another letter, also on May 28, 1982, to the Gover
nor in Council, Ottawa, Ontario, relating in almost
identical language, the circumstances of his case
asking that the Governor in Council grant him an
exception pursuant to the provisions of subsection
115(2) of the Immigration Act, 1976. That subsec
tion was specifically referred to and quoted in the
letter and reads as follows:
115....
(2) The Governor in Council may by regulation exempt any
person from any regulation made under subsection (1) or
otherwise facilitate the admission of any person where the
Governor in Council is satisfied that the person should be
exempted from such regulation or his admission should be
10 Subsection 37(1) reads as follows:
37. (1) The Minister may issue a written permit authoriz
ing any person to come into or remain in Canada if that
person is
(a) in the case of a person seeking to come into Canada, a
member of an inadmissible class, or
(b) in the case of a person in Canada, a person with
respect to whom a report has been or may be made under
subsection 27(2).
facilitated for reasons of public policy or due to the existence of
compassionate or humanitarian considerations.
When the inquiry opened on June 15, 1982, the
applicant's position was that he had not received
any reply to his May 28 letter to the Governor in
Council. He had, however, received a reply to his
letter of the same date to the Minister. The reply
was dated June 3, 1982 and was signed by one
Charles J. G. Verge, described as "Coordinator,
Secretariat Services" in the Minister's Office in
Ottawa. That letter reads as follows (transcript,
page 52):
The Minister, the Honourable Lloyd Axworthy, has asked
me to acknowledge your letter of May 28, 1982, concerning
your request for a Minister's Permit.
A report will be requested from the appropriate officials and
the Minister will be writing to you as soon as he has reviewed
the report.
Accordingly, almost immediately after the Ad
judicator opened the inquiry, applicant's counsel
applied for an adjournment of the inquiry because
no answer of any kind had been received in reply
to the subsection 115(2) exemption application
and no definitive answer to the section 37 permit
application had been received. The Case Present
ing Officer, representing the Commission, objected
to the adjournment application on the following
basis (transcript addendum number 1, page B):"
The Commission is objecting to an adjournment because it is
felt that the issuance of a Permit is purely discretionary ....
I have discussed the matter with the Minister's delegate, (the
Manager of the• Canada Immigration Centre, and she has)
requested that the inquiry proceed.
The Adjudicator refused the adjournment request
because, in his view, the Minister's discretion to
issue a permit under section 37 had been exercised
11 Page 2 of the Inquiry Transcript contains the following
entry almost immediately after the inquiry opening on June 15
"45 MINUTES OF INQUIRY NOT AVAILABLE DUE TO TAPE
MALFUNCTION SEE ADDENDUM NO. I." Addendum No. 1
containing Pages A to E inclusive is described as "PARTIAL
PORTION OF TRANSCRIPT RELATING TO THE MISSING SEC
TION IN THE RECORD OF THE IMMIGRATION INQUIRY ...
TRANSCRIBED FROM INCOMPLETE NOTES TAKING (sic)
DURING THE INQUIRY." It was common ground between the
parties that Pages A to E supra were not, by any means, a full
and complete transcript of the missing 45-minute portion.
through his delegate, the Manager of the Canada
Immigration Centre who had decided not to issue
a permit in this case (see addendum to transcript,
page D).
After the luncheon adjournment, applicant's
counsel advised the Adjudicator that an originat
ing notice of motion under section 18 of the Fed
eral Court Act to the Trial Division asking for
prohibition of the proceedings before the
Adjudicator until the outcome of the section 37
and subsection 115(2) applications were known,
had been issued and on this basis, he renewed his
application for an adjournment of the proceedings.
After a short recess, the Case Presenting Officer
objected to the adjournment at the same time
reiterating her earlier position that the Minister's
delegate had refused the section 37 permit applica
tion. The Adjudicator thereupon again refused the
adjournment requested by applicant's counsel. The
inquiry then proceeded. As stated earlier herein,
the applicant declined to give evidence, on the
advice of counsel. However, the Case Presenting
Officer then called immigration officer Haist and
established the Commission's allegations, to the
satisfaction of the Adjudicator, through her evi
dence. After hearing that sworn testimony and the
submissions of the Case Presenting Officer, the
Adjudicator asked the applicant's counsel whether
he had any evidence to submit on behalf of the
applicant. At that point counsel once again raised
the matter of the subsection 115(2) application
and referred to the Jiminez-Perez case. 12 In this
regard, the transcript reads as follows (pages 21,
22 and 23):
A. The other thing ... the other matter I would put to you
sir is that the Perez case and the whole aspect of 115(2)
in terms of even your discussion hasn't been ...
Q. Perez is a case you haven't viewed.
A. That's ... well I ... I've received some briefing on it.
Q. All right then we'll adjourn at this point. You may read
the Perez case and then continue.
A. Yes but the record sir should be clear that we haven't
discussed 115(2). We talk about the Minister but the
2 Jiminez-Perez et al. v. Minister of Employment and
Immigration, et al., [1983] 1 F.C. 163 (C.A.)
Minister was only asked under section 37. The ... the
issue of 115(2) has never been resolved either by the
Commission or by yourself.
Mr. Lee it is outside the bounds of my authority to grant
such an adjournment. I rely on the Minister's representa
tive for the Minister's view point. This inquiry stands
adjourned for fifteen minutes.
R EC ESS
This inquiry is resumed. Mr. Lee you have had a copy of
the decision in question. I earlier indicated to you I was
somewhat familiar with the case and I point out to you it
is ... I am required to respect, to pay attention to case
law, and I read this case once again and it refreshes my
memory that it is of no assistance to your client. It
doesn't deal with the same situation at all.
A. I might reply to that.
Yes please speak.
A. Although prior to that sir, I was making certain remarks
arising out of your comments and there was one further
point that I hadn't finished when you had given the final
adjournment, and that is sir that you were pointing out to
us that it was up to you to be satisfied as to ...
Mr. Lee, I'm going to cut you off, because I'm not here to
argue with you. Once I make a finding then that subject is
closed and I don't intend to fill record and time with your
remarks that have no bearing on the issues before me ...
A. Sir I believe you were the one who felt it was important
to make some general comments concerning your role
and I simply ...
Mr. Lee I happen to be the adjudicator. I have reminded you of
your responsibility. I'm going to proceed.
Q. Do you have evidence to present on behalf of your client
with regard to the issues I am required to deal with at
this inquiry?
A. I have submissions that I would like to make sir.
Q. Do you have evidence?
A. (no response)
Q. Are you unable to answer a question yes or no Mr. Lee?
A. Sir I'm not prepared to answer questions when they are
Q. Then you refuse to answer.
A. I'm not ... I didn't say that sir. I simply indicated that
I'm not prepared to answer questions in the manner in
which you are putting them forward. I am simply indicat
ing to you that I have some relevant submissions ...
Q. Mr. Lee do you understand my question?
A. NoI...
Q. Do you understand my questions?
A. No quite frankly I do not sir.
Q. Do you have evidence ... do you have evidence to present
on behalf of your client?
A. I feel I have ...
Q. With regard to the issues I must decide?
A. I feel I have.
Q. Then please proceed with your evidence.
A. Well I was just pointing out to you sir ..
Q. Submission is not evidence Mr. Lee.
A. I think sir you asked for evidence concerning matters that
were on issues that you had to decide and I think the
evidence I'm bringing forward here to you ...
Q. Do you recall what the issues of this inquiry are?
A. Sir I haven't even given you what my submission is. I'm
not sure how you can tell with all respect, whether its
[sic] evidence or relevant or irrelevant.
Q. There has been a witness to the inquiry. Immigration
Officer Haist has been examined by the Minister's repre
sentative. Now you earlier said you had no questions of
Miss Haist. Miss Haist has not been excused by me as a
witness. She is, I am informed she is available. Do you
have questions you wish to place to the Witness Haist?
A. No sir but I have submissions to make based on the case
that you asked me to read during the adjournments and
that I raised to you prior to the adjournment and I also
have some submissions arising out of the last comments
that you had made prior to the adjournment. I believe sir,
that you were inviting me to make those submissions and
I had not finished.
Q. Just a moment Mr. Lee. You have said that you have no
questions of Officer Haist. Do you have evidence to
present on behalf of your client?
A. I have no witnesses to call sir.
Q. Is your client prepared to answer questions?
A. I have indicated sir that my client is not a compellable
witness based on the cases that you have referred to and
that I have referred to and the Charter sir and therefore
Q. Once again ...
A. because he is not compellable ...
Q. ... Once again I will ask for a yes or a no answer. Is
your client prepared to testify at this inquiry?
A. As my client is not compellable sir, he is not .. .
From this passage, it is clear that notwithstanding
the fifteen-minute adjournment granted for the
purpose of allowing applicant's counsel to peruse
the Jiminez-Perez decision, on the resumption of
the inquiry, the Adjudicator did not allow counsel
to make the submissions which he wished to make
on the applicability of that decision to the instant
case. Rather, he proceeded to hear further submis
sions from the Case Presenting Officer. Thereafter
applicant's counsel attempted once more to raise
the subsection 115(2) issue and to make his sub
missions on the Jiminez-Perez decision. At page
25 of the transcript, the following exchange
occurred between the Adjudicator and applicant's
counsel:
Q. Do you have a submission to make with regard to the
evidence presented concerning the issues of this inquiry:
Is Mr. Tam a person described in paragraph 27(2)(e).
Yes or no I have asked you.
A. Sir I would also point out that you have given us the case
of Perez that I had raised and you have indicated that we
would be allowed to make submissions ...
Mr. Tam...
A. concerning it ...
BY ADJUDICATOR TO PERSON CONCERNED
Mr. Tam, I will no longer hear your counsel in this vein.
Thereafter the Adjudicator proceeded to address
himself to the central issue in the proceedings, i.e.,
whether or not the applicant was a person
described in paragraph 27(2)(e) of the Act.
On the basis of this record, I am satisfied that
the Adjudicator did not act properly in refusing to
allow applicant's counsel an opportunity to make
submissions with respect to the subsection 115(2)
application. After allowing counsel a short
adjournment to consider the relevance of the
Jiminez-Perez decision, he then refused to hear
counsel's submissions thereon, simply stating " .. .
I read this case once again and it refreshes my
memory that it is of no assistance to your client."
When counsel tried later on in the proceedings to
make his submissions on this issue, he was sum
marily silenced with the statement: "Mr. Tam, I
will no longer hear your counsel in this vein." The
Adjudicator clearly, in my view, by these actions,
denied the applicant natural justice and procedural
fairness. Whether or not the Jiminez-Perez deci
sion was relevant to the case at bar, applicant's
counsel was most certainly entitled to make his
submissions on the relevance of that case together
with any other submissions which he considered
relevant to the issue at hand. In making a sum-
mary ruling that the Jiminez-Perez case was inap
plicable without hearing what counsel had to say
to persuade him otherwise is to proceed in a
manner which, in my view, was manifestly unfair.
I agree that applicant's counsel contributed, to
some extent, to the situation, by failing, in some
instances, to be directly responsive to questions
directed to him by the Adjudicator. However that
may be, the fact remains that on at least five
different occasions' 3 the applicant's counsel raised
the matter of the subsection 115(2) application
with the Adjudicator and never, on any of those
occasions, was he allowed to make his submissions
in respect thereof. I am satisfied that counsel was
attempting to raise a serious issue. I am not as
confident as the Adjudicator appeared to be that
the Jiminez-Perez case had no relevance to the
circumstances at bar. Without expressly stating
any concluded view on the impact, if any, of other
jurisprudence of this Court 14 on the present case, I
think the Adjudicator should have given counsel
an opportunity, at some point during the course of
the proceedings, to make the submissions which he
clearly wished to make on the question of the
subsection 115(2) application to the Governor in
Council.
Turning now to the second attack by applicant's
counsel on subject deportation order relating to a
reasonable apprehension of bias or actual bias, we
were given a number of references to the transcript
where, in his submission, the remarks of the
Adjudicator to counsel clearly revealed an open
hostility on the part of the Adjudicator towards
counsel. I agree that in many instances the
remarks made by the Adjudicator were intemper
ate and might perhaps have been better left
unsaid. However, it is difficult for a Court sitting
in review of quasi-judicial proceedings like this to
recapture the true atmosphere of the proceedings
assisted only by a written transcript (which in this
case is by no means a complete transcript). In
fairness to the Adjudicator, it is clear from the
transcript that he became exasperated by what he
13 See addendum no. 1 to transcript, p. B; p. 2; pp. 18-19; pp.
21-23 quoted supra; and p. 25 quoted supra.
14 1 refer to the Jiminez-Perez case (supra) and the case of
Re Mauger and Minister of Employment & Immigration
(1980), 119 D.L.R. (3d) 54 (F.C.A.) at p. 76.
considered to be delaying tactics on the part of
counsel and by counsel's attempt to introduce into
the proceedings matters which, in the view of the
Adjudicator, were irrelevant to the issue which he
was required to determine. Unfortunately, the
Adjudicator erred, in my view, in refusing to hear
applicant's counsel on the subsection 115(2)
matter. Because of my conclusions on the initial
ground of attack advanced on behalf of the appli
cant, it is unnecessary to deal definitively with the
submissions in respect of reasonable apprehension
of bias or actual bias. I feel constrained to add,
however, that I have rarely perused a more
unpleasant transcript. I am frankly relieved that it
is neither necessary nor desirable that a judgment
be made as to which participant in the proceedings
contributed to the greatest extent to the rancorous
atmosphere which pervaded from beginning to
end.
For the reasons expressed herein, I would allow
the section 28 application and set aside the depor
tation order made against this applicant on June
16, 1982 by Adjudicator, E. C. Berry.
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.