A-145-85
Kewal Singh (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: SINGH V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Heald, Urie and Ryan JJ.—
Toronto, April 29; Ottawa, June 24, 1986.
Immigration — Refugee status — S. 28 application to
review Immigration Appeal Board decision not to allow
application for redetermination of refugee status to proceed —
Declaration under oath not accompanying application for
redetermination as required by s. 70(2) of Act — Whether s.
70(2) requirements mandatory or directory — Impact of
Harbhajan Singh, [19851 1 S.C.R. 177 on Hardev Singh,
[19821 2 F.C. 785 (C.A.) — Hardev Singh holding s. 70(2)
requirements mandatory — Supreme Court declaring s. 71(1)
inoperative as not providing for oral hearing — Application
allowed, but different reasoning followed — Majority holding
s. 70(2) requirements directory, rationale of Hardev Singh
having disappeared in view of requirement of s. 71(1) for oral
hearing — Court justified in departing from Hardev Singh —
Minority opinion to effect s. 70(2) requirement imperative,
Parliament leaving s. 70(2) intact in latest amendments to Act
— Hardev Singh good law — Procedure to be followed to
comply with ss. 70(1) and 71(1) — Immigration Act, 1976,
S.C. 1976-77, c. 52, ss. 45(1),(5), 70(1),(2), 71(1) (rep. and sub.
S.C. 1986, c. 13, s. 5) — Canadian Bill of Rights, R.S.C. 1970,
Appendix III, s. 2(e) — Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 52 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7.
This is a section 28 application to review and set aside the
decision of the Immigration Appeal Board not to allow an
application for redetermination of refugee status to proceed for
"want of perfection". Although the application had been
accompanied by a transcript of the examination under oath, it
was not accompanied by the declaration under oath required by
subsection 70(2) of the Immigration Act, 1976. The issue is
whether the requirement respecting the statutory declaration is
mandatory or directory. The case raises the question of the
effect of the Supreme Court of Canada decision in Singh et al.
v. Minister of Employment and Immigration, [1985] 1 S.C.R.
177 (the Harbhajan Singh case) on this Court's earlier deci
sions, particularly its decision in Singh v. Minister of Employ
ment and Immigration, [1982] 2 F.C. 785 (C.A.) (the Hardev
Singh case). This Court held in the Hardev Singh case that the
statutory requirement of filing a declaration under oath was
mandatory. In the Harbhajan Singh case, Wilson J. found
subsection 71(1) to be inconsistent with the Charter, and
therefore of no force and effect, while Beetz J. declared the
latter portion of subsection 71(1) inoperative.
Held, the application should be allowed.
Per Heald J. (Ryan J. concurring): The question whether
subsection 70(2) has survived the Harbhajan Singh decision
must be answered in the affirmative. Neither Wilson J. nor
Beetz J. declared subsection 70(2) to be inoperative, nor did the
formal pronouncement of the Court do so. The fact that the
Supreme Court found subsection 71(1) to be inoperative does
not automatically lead to the conclusion that subsection 70(2)
is of no force or effect. The objections of the Supreme Court to
the procedure under sections 70 and 71 were based upon the
lack of an oral hearing.
This Court is nevertheless justified in departing from the
ratio of Hardev Singh. Since the Harbhajan Singh case was
decided, the rationale of the decision in Hardev Singh has
disappeared. The concern expressed by Urie J. in the latter
case, that failure to file a declaration may deprive the Board of
evidence necessary to fulfill its statutory mandate, no longer
exists in view of the requirement for an oral hearing in all cases
where an application for redetermination has been made.
For those reasons and in light of the existing case law, the
Court should construe all of the requirements of subsection
70(2) as being directory rather than mandatory.
The matter should be referred back to the Board for redeter-
mination after a hearing on the merits in accordance with the
principles of fundamental justice.
Per Urie J.: The ratio of the Harbhajan Singh decision and
the consequent requirement for a hearing on an application for
redetermination of refugee status, as affirmed in the new
subsection 71(1) assented to on March 26, 1986, do not have
the effect of overruling the majority decision of this Court in
the Hardev Singh case.
The latest amendments to the Immigration Act, 1976, which
incorporated the new subsection 71(1), left subsection 70(2)
intact. It can be inferred that in retaining the requirement for a
declaration under oath, Parliament regarded that requirement
as a substantive rather than procedural element in the process
of evaluating the validity of the applicant's claim. This Court is
not entitled to conclude that what according to its authorities is
a substantive requirement has become a procedural require
ment which may be waived without any consequences, the
applicant being assured of a hearing under subsection 71(1). To
ignore the requirements of subsection 70(2) is to ignore Parlia
ment's intention as clearly expressed by the plain and ordinary
meaning of the words of subsection 71(1).
Should an applicant, for whatever reasons, fail to take advan
tage of the opportunity of being heard under subsection 71(1),
the hearing would be based solely on the documents prescribed
by subsection 70(2). Were the requirements of subsection 70(2)
not imperative, the hearing could lead to unfairness if no
material existed.
Beetz J. inferentially gave support for the foregoing views
when he stated in Harbhajan Singh that the Board should
"restrict itself to the facts and material specified in s. 70(2)"
when it proceeds under subsection 71(1).
The Hardev Singh decision is still good law. However,
compliance with both subsections 70(2) and 71(1) results in
some inconsistency which can be resolved in the following
manner. The timeliness of filing the declaration being directo
ry, it could be filed at any time up to the hearing by the Board.
Should it not be filed, the Board could direct the applicant to
show cause, within a specified period of time, why his applica
tion should not be dismissed. If compliance is effected then the
hearing will follow. If not, the Board would be required to
dismiss the application. Such a procedure would reflect the
intention of Parliament as expressed in the Act.
The matter should be referred back to the Board with a
direction that it order the applicant to show cause why his
application should not be dismissed for non-compliance with
subsection 70(2). If the declaration is filed within a time to be
prescribed, the matter should be redetermined after a hearing
on the merits in accordance with fundamental justice
principles.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; Singh v. Minister of Employ
ment and Immigration, [1982] 2 F.C. 785; 41 N.R. 361
(C.A.).
REFERRED TO:
Lumsden v. Inland Revenue Commissioners, [1914] A.C.
877 (H.L.); Singh v. Minister of Employment and Immi
gration, Federal Court of Appeal, A-688-83, December 7,
1983, not reported; A-1307-84, April 25, 1985, not yet
reported; Mukherjee v. Minister of Employment and
Immigration, Federal Court of Appeal, A-1356-83,
March 14, 1984, not reported; Dhillon v. Minister of
Employment and Immigration, Federal Court of Appeal,
A-296-84, December 6, 1984, not yet reported; Gandhi v.
Minister of Employment and Immigration, Federal
Court of Appeal, A-973-84, December 6, 1984, not yet
reported; Parmjit v. Minister of Employment and Immi
gration, Federal Court of Appeal, A-1370-83, January
24, 1985, not yet reported; Immigration Appeal Board v.
Bains, Federal Court of Appeal, A-1439-83, February 8,
1984, not reported; Noble v. Minister of Employment
and Immigration, Federal Court of Appeal, A-981-84,
February 13, 1985, not yet reported; Nandarajah v.
Minister of Employment and Immigration, Federal
Court of Appeal, A-656-84, February 18, 1985, not yet
reported.
COUNSEL:
No one appearing for applicant.
Frank N. Marrocco, Q.C., for amicus curiae.
C. Kobernick for respondent.
SOLICITORS:
No one appearing for applicant.
McFadden, Marrocco & Parker, Toronto, for
amicus curiae.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This section 28 application raises an
interesting and important question as to the
impact of the decision of the Supreme Court of
Canada in the Harbhajan Singh case' on this
Court's decision in the Hardev Singh case. 2
The relevant facts are not in dispute and may be
shortly stated. During an inquiry under the Immi
gration Act, 1976 [S.C. 1976-77, c. 52], the appli
cant made a claim to Convention refugee status.
Pursuant to subsection 45(1) of that Act, the
Adjudicator adjourned the inquiry on December
13, 1982. The applicant was then examined under
oath respecting his claim by a senior immigration
officer in the usual way, pursuant to subsection
45(1). On May 30, 1984, the applicant was
informed, pursuant to subsection 45(5), that the
Minister had not accepted his claim to Convention
refugee status. Pursuant to subsection 70(1) of the
Act, the applicant applied to the Immigration
Appeal Board for redetermination of his refugee
claim. It is not contested that the application itself
was timely. However, while the application was
accompanied by the transcript of the examination
under oath before the senior immigration officer, it
was not accompanied by the declaration under
oath. Subsection 70(2) provides that both of these
documents are to accompany the application for
' Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, judgment dated April 4, 1985.
2 Singh v. Minister of Employment and Immigration, [1982]
2 F.C. 785; 41 N.R. 361 (C.A.), judgment dated January 25,
1982.
redetermination. By decision dated January 17,
1985, and signed January 21, 1985, the Board
refused to allow the application to proceed "for
want of perfection" because "The Declaration
under oath as required by subsection 70(2) of the
Act did not accompany the said application."
This section 28 application attacking the
Board's decision came on for hearing on June 21,
1985. At that time the Court adjourned the
matter, directed written argument and the
appointment of an amicus curiae to represent the
applicant. This procedure was adopted because of
the Court's concern as to the possible effect of the
decision in Harbhajan Singh supra, on this
Court's earlier jurisprudence, and, in particular,
our decision in Hardev Singh supra.
THE JURISPRUDENCE IN THE FEDERAL COURT OF
APPEAL
The starting point for a discussion of the rele
vant jurisprudence in this Court is the decision in
Hardev Singh, supra. That decision was a pre-
Charter decision. It was also a split decision. Mr.
Justice Urie, in writing the majority decision, con
sidered it to be of primary importance to remem
ber that the Board's duty was to formulate an
opinion as to whether there were reasonable
grounds to believe that the applicant's claim could,
upon the hearing of the application, be established.
He characterized the process established under
sections 70 and 71 as "a kind of screening process,
the importance of the decision of which to the
applicant cannot be overemphasized" (page 794).
Mr. Justice Urie expressed the further view that,
in enacting subsection 70(2), Parliament clearly
placed much importance on the necessity for the
statutory declaration as an essential tool in en
abling the Board to determine whether or not the
matter ought to proceed to a full hearing. He
observed that if it was permissible for an applicant
to decide whether or not to file the declaration
under oath, it would be equally permissible for him
to elect not to file a transcript of the examination
under oath. Accordingly, a situation could develop
in which an applicant might decide to withhold a
transcript which is unfavourable to his claim while
filing a favourable statutory declaration. Such a
situation would result in the Board being deprived
of evidence which it required to carry out its
statutory mandate. On the question as to when the
statutory declaration may be filed, Mr. Justice
Urie concluded that it was not necessary for the
declaration to literally accompany the application.
So long as the application for redetermination
itself was filed within the time limit prescribed by
the Regulations [Immigration Regulations, 1978,
SOR/78-172], if the declaration was received by
the Board before the conclusion of its consider
ation of the application, the Board was required to
consider it (pages 796 and 797).
Since this Court's decision in Hardev Singh,
supra, two categories of cases have developed in
the Court in so far as the application of subsection
70(2) is concerned. In the first category are to be
found several cases where the Court has referred
the matter back to the Board for reconsideration
on the basis that there was either insufficient
evidence on the record to decide, as a fact, whether
want of perfection had been established or that,
while the declaration was incomplete, the immi
gration officer in question was under an obligation
to have completed it and was, therefore, deemed to
have completed it. 3
The case at bar does not come within this first
category of cases. In the instant case, there is no
evidence as to why the declaration was not filed
nor is there any suggestion that this applicant
intended to file a declaration but that such an
intention had been frustrated by bureaucratic
shortcomings as was the case in the first category
discussed supra.
The second category contains a number of cases
which have merely followed and confirmed the
decision of the majority of the Court in Hardev
3 Singh v. Minister of Employment and Immigration,
A-688-83, December 7, 1983, not reported; Mukherjee v. Min
ister of Employment and Immigration, A-1356-83, March 14,
1984, not reported; Dhillon v. Minister of Employment and
Immigration, A-296-84, December 6, 1984, not yet reported;
Gandhi v. Minister of Employment and Immigration,
A-973-84, December 6, 1984, not yet reported; Parmjit v.
Minister of Employment and Immigration, A-1370-83, Janu-
ary 24, 1985, not yet reported.
Singh. 4 These cases were all decided in this Court
before the decision of the Supreme Court of
Canada in Harbhajan Singh, supra. It appears
that this issue of an absent declaration has only
come, squarely, before this Court once since the
Harbhajan Singh decision supra. The Court dis
missed that section 28 application from the Bench
without giving any reasons. 5 In the case of Nan-
darajah v. M.E.I. (supra under footnote 4), leave
to appeal this Court's decision to the Supreme
Court of Canada was refused by that Court on
June 3, 1985. However, wider issues were raised
by the submissions of the amicus curiae before us
than appear to have been raised in the application
for leave. Accordingly, I think it appropriate for
this Court to reconsider the position adopted in
Hardev Singh supra, in light of the Harbhajan
Singh decision.
THE DECISION OF THE SUPREME COURT OF
CANADA IN HARBHAJAN SINGH
Two learned Justices of the Supreme Court of
Canada wrote reasons in that case. Madam Justice
Wilson's reasons for judgment were concurred in
by Chief Justice Dickson and Mr. Justice Lamer.
Mr. Justice Beetz also wrote reasons for judgment
which were concurred in by Mr. Justice Estey and
Mr. Justice McIntyre. Madam Justice Wilson con
cluded that subsection 71(1) of the Immigration
Act, 1976 is inconsistent with the principles of
fundamental justice set out in section 7 of the
Charter [Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act, 1982, 1982, c. 11
(U.K.)]. Accordingly, in her view, and pursuant to
subsection 52(1) of the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], the appellants were entitled to a declara
tion that subsection 71(1) is of no force and effect
to the extent of that inconsistency. Mr. Justice
Beetz, on the other hand, based his conclusions on
See for example: Immigration Appeal Board v. Bains,
A-1439-83, February 8, 1984, not reported; Noble v. Minister
of Employment and Immigration, A-981-84, February 13,
1985, not yet reported; Nandarajah v. Minister of Employment
and Immigration, A-656-84, February 18, 1985, not yet
reported.
5 See: Singh v. Minister of Employment and Immigration,
A-1307-84, April 25, 1985, not yet reported.
subsection 2(e) of the Canadian Bill of Rights
[R.S,C. 1970, Appendix III] rather than on the
Charter and declared that, for the purposes of the
seven appeals before him, the latter part of subsec
tion 71(1) as underlined below, is inoperative. 6 It
should be noted at this juncture that the formal
judgment of the Supreme Court of Canada reads
[at page 184]:
The appellants are entitled to a declaration that s. 71(1) of
the Immigration Act, 1976 in its present form has no applica
tion to them.
In the light of this difference in approach by an
equal number of the learned Justices of the
Supreme Court of Canada, can it be said that
subsection 70(2) has survived the decision in
Harbhajan Singh? Neither Madam Justice Wilson
nor Mr. Justice Beetz have stated that the fact
that subsection 71(1) is inoperative leads,
automatically, and, per se, to a conclusion that
subsection 70(2) is inoperative. Certainly, in so far
as the judgment of Mr. Justice Beetz is concerned,
since he declared only the latter part of subsection
71(1) inoperative, namely, the screening process
and since the reference to subsection 70(2) is
contained in that portion of subsection 71(1)
which has not been found inoperative, an inference
is warranted, in my view, that subsection 70(2)
remains unimpaired by his judgment. Turning now
to the judgment of Madam Justice Wilson, she has
concluded that subsection 71(1) is inconsistent
with the principles of fundamental justice and that
it is of no force and effect to the extent of that
inconsistency. Reading her judgment as a whole, it
seems to me that, in the main, her objections to the
procedure under sections 70 and 71 are founded
upon the lack of an oral hearing. While she
expresses concern (pages 215 and 216) at the lack
of discovery of the Minister's case to the applicant
in proceedings which she characterizes as being
"highly adversarial", prior to any hearing, I do not
perceive this as being a criticism, per se, of the
subsection 70(2) disclosure by the applicant. What
the learned Justice seems to be saying is that an
6 71. (1) Where the Board receives an application referred to
in subsection 70(2), it shall forthwith consider the application
and if, on the basis of such consideration, it is of the opinion
that there are reasonable grounds to believe that a claim could,
upon the hearing of the application, be established, it shall
allow the application to proceed, and in any other case it shall
refuse to allow the application to proceed and shall thereupon
determine that the person is not a Convention refugee.
oral hearing is necessary but that before such an
oral hearing, fairness requires disclosure not only
by the applicant but by the Minister as well. Thus,
while it is clear from her reasons that she expressly
disapproves of the procedure under sections 70 and
71, I think that her problems with that procedure
would be solved by an oral hearing and discovery
to the refugee claimant of the Minister's case prior
to that oral hearing. I therefore conclude that
subsection 70(2) has survived the Harbhajan
Singh case since neither of the Court's sets of
reasons for judgment have declared it to be inoper
ative. I would add that the formal judgment
quoted supra does not affect subsection 70(2)
either since it is not specifically mentioned therein.
SHOULD THE COURT RECONSIDER ITS DECISION
IN HARDEV SINGH?
The amicus curiae submitted that since the
consequence of the decision in Harbhajan Singh is
that there will be a hearing on the merits by the
Board in accordance with the principles of funda
mental justice in all cases where an application for
redetermination has been made, no valid reason
any longer exists for refusing such an application.
where the declaration is absent. He went on to
state:
In this case at a full oral hearing on the merits the Minister
and the applicant will have an opportunity to be heard and the
Board presumably will have before it whatever material the
parties choose to present. Specifically, the Minister will be able
to insure that the Board has a balanced view of the applicant's
claim and that all relevant evidence, whether favourable or not,
is available to the Board. The Board will not, in this case, be
deprived of the evidence necessary to carry out its statutory
mandate by reason of the failure to submit a declaration under
oath.
I agree with this submission. In my view, the
rationale for the decision in Hardev Singh has
disappeared since Harbhajan Singh was decided.
The concern expressed by Mr. Justice Urie in
Hardev Singh and referred to supra, that failure
to file a declaration might result in the Board
being deprived of evidence necessary to the fulfil
ment of its statutory mandate, no longer exists in
light of the requirement for an oral hearing. In
these circumstances, I believe that this Court is
justified in departing from the ratio of Hardev
Singh. Subsection 70(2) reads:
70.
(2) Where an application is made to the Board pursuant to
subsection (1), the application shall be accompanied by a copy
of the transcript of the examination under oath referred to in
subsection 45(1) and shall contain or be accompanied by a
declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which the
application is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems rele
vant to the application.
For the reasons expressed supra, it is my view that
in the light of the existing jurisprudence, the Court
should construe all of the requirements of that
subsection relating to the transcript of the exami
nation under oath and the declaration under oath
as being directory rather than mandatory.
Accordingly, and for the above reasons, I would
allow the section 28 application, set aside the
decision of the Immigration Appeal Board and
refer the matter back to the Board for redetermi-
nation of the applicant's claim after a hearing on
the merits in accordance with the principles of
fundamental justice.
RYAN J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the draft reasons for judgment of my brother
Heald J. While I agree with him on the result,
with great deference I find myself unable to agree
with him on how he achieves that result for rea
sons which I can state fairly succinctly.
Mr. Justice Heald has accurately set forth the
relevant facts, the appropriate jurisprudence and
the important issue with which we are faced. It is,
thus, unnecessary for me to repeat any of them
except to the extent that it may be necessary to
make my reasons intelligible.
At the outset I should say that I agree with my
learned colleague that subsection 70(2) of the
Immigration Act, 1976 has survived the Harbha-
jan Singh case since neither the reasons for judg
ment of Beetz J. nor of Wilson J. declared it to be
inoperative nor did the formal pronouncement do
so. Parliament has, in effect, affirmed that view of
the scope of the decision in that the latest amend
ments to the Act which received Royal Assent on
March 26, 1986 (i.e. after the Harbhajan Singh
decision was pronounced) left subsection 70(2)
intact. On the other hand subsection 71(1) was
repealed and those words declared by Beetz J. to
be inoperative do not appear in the subsection
which was substituted therefor. Clearly the new
subsection was enacted in response to the Harbha-
jan Singh judgment. The subsection now reads as
follows [S.C. 1986, c. 13, s. 5]:
71. (1) Where the Board receives an application referred to
in subsection 70(2), it shall hold a hearing to determine the
application, after having notified the applicant and the Minister
of the time and place of the hearing, and shall afford the
applicant and the Minister a reasonable opportunity to be
heard.
We are thus left with the task of determining
whether or not the ratio decidendi of the two sets
of reasons in the Harbhajan Singh case in the
Supreme Court of Canada and the consequent
requirement for a hearing on an application for the
redetermination of a claim for refugee status, as
affirmed in the new subsection 71(1), have had the
effect of overruling the majority decision of this
Court in the Hardev Singh case. With some hesi
tation I have concluded that they have not. I have
reached this conclusion on several bases.
First, as Heald J. has noted, the majority in
Hardev Singh held that absent the declaration
under oath, the Immigration Appeal Board ought
not to entertain the application for redetermina-
tion. The reasons for reaching that conclusion are
found at pages 794-795 F.C.; 363-364 N.R.:
It is, I think, of primary importance in construing these
subsections to bear in mind that the duty of the Board is to
formulate an opinion as to whether "there are reasonable
grounds to believe that a claim could, upon the hearing of the
application, be established..." and if so to allow the application
to proceed to a hearing. It is a kind of screening process, the
importance of the decision of which to the applicant, cannot be
overemphasized. That Parliament seems to have recognized
how important that process is can be seen from the fact that the
present Act, as was pointed out by Heald J., added several
mandatory steps to the redetermination provisions which were
embodied in the Immigration Appeal Board Act, now repealed.
The duty of the Board in determining whether to permit the
appeal to proceed to which I earlier referred, includes, inter
alia, consideration of the declaration setting out all those
matters in paragraphs (a) to (d) of subsection 70(2). Paragraph
(c), for example, requires that "a summary in reasonable detail
of the information and evidence intended to be offered at the
hearing" (emphasis added) must be included in the declaration.
Can it be said that the Board is in a position to determine
whether or not the claim to be a Convention refugee ought to
be permitted to proceed if it has not been apprised of the
evidence, (to the extent in detail that the applicant deems
necessary) to support his claim? I think not. It seems to me that
Parliament must be presumed to have thought that this was an
important element in enabling the Board to make its determi
nation of whether to permit the matter to proceed to a full
hearing. In the total absence of such material, as well as that
required to be included in the declaration by the other para
graphs of the subsection, the Board, in my opinion, may not be
in a position to carry out its statutory duty to determine
whether or not the matter should proceed to a full appeal.
At first blush it would appear, as Heald J. has
held, that the raison d'être for the Hardev Singh
conclusion no longer exists and it should no longer
be a binding authority. However, Parliament, in its
wisdom, in implementing the Harbhajan Singh
decision by the amendment to the Act to which I
have referred, continued the requirement that the
declaration under oath accompany the application
for redetermination be contained in the applica
tion. The only logical inference which I can draw
from the retention of that requirement is that it
was thought by Parliament to be a necessary ele
ment in the process of evaluating the validity of
the applicant's claim, i.e., it was a substantive
rather than a procedural element in that process.
Otherwise, I cannot imagine why it was thought
necessary to leave subsection 70(2) untouched by
amendments.
Secondly, to ignore the requirements of subsec
tion 70(2) on the basis that the necessity for a
declaration under oath no longer exists because of
the imperative requirement of subsection 71(1), is,
in effect, to ignore the will of Parliament as clearly
expressed so recently. I do not think that this
Court is entitled to draw the conclusion that what
according to the jurisprudence of this Court is a
substantive requirement has become a procedural
requirement which may be waived because non
compliance with the procedural requirement will
not affect the result because the safeguard of a
hearing ensures that the applicant's case will be
fully presented to the Board. The well-known rule
is that the intention of Parliament must be ascer
tained from the words that it has used to express
that intention. The learned author, E. A. Driedger,
in stating that rule at page 45 of the 2nd edition of
Construction of Statutes referred to the judgment
of Lord Haldane in Lumsden v. Inland Revenue
Commissioners, [1914] A.C. 877 (H.L.) at page
892 where he said:
... a mere conjecture that Parliament entertained a purpose
which, however natural, has not been embodied in the words it
has used if they be literally interpreted is no sufficient reason
for departing from the literal interpretation.
Conjecture that Parliament did not intend the
requirements of subsection 70(2) to be imperative
because of the requirements of the new subsection
71(1) cannot be sustained, in my opinion, if the
plain and ordinary meaning of the words in the
subsections is followed.
Thirdly, it was said that the requirement of a
hearing rendered the requirement of a declaration
under oath wholly unnecessary for the purpose of
ensuring that the validity of the claim of the
applicant was fully explored. While that may be
true in most cases, it may not be true in every one.
Parliament -may have had in mind, for example,
inter alia, the case of an applicant who, for what
ever reasons be it health or otherwise, fails to take
advantage of the opportunity afforded him by
subsection 71(1) to be heard. The hearing by the
Board, in such an instance, would be a hearing
based solely on the documents mandated to be
before it by subsection 70(2). If the requirements
of that subsection are not imperative and one or
more of the documents were not filed the Board's
hearing, if not rendered futile, would at least not
be fullsome. While it may be said that that would
be as a result of the applicant's own inaction, there
may be valid explanations for that inaction which
could lead to unfairness in the result if no material
existed.
Fourthly, Mr. Justice Beetz inferentially gave
support for the foregoing views when he stated at
page 239 of [1985] 1 S.C.R. that:
All the parties agree that when the Immigration Appeal
Board proceeds under s. 71(1) of the Immigration Act, 1976 it
should not take into account any facts or materials other than
those specified by s. 70(2) of the Act .... I would so direct the
Board to restrict itself to the facts and material specified in
s. 70(2) of the Act.
To give meaning to that injunction, all the ma
terial specified in subsection 70(2) surely must be
available notwithstanding the requirement of a
hearing.
In concluding, as I have, that Hardev Singh is
still good law, I am conscious of the fact that the
requirement of a hearing as well as compliance
with subsection 70(2) creates some awkwardness if
not an inconsistency. That awkwardness or incon
sistency can be resolved, it seems to me, in the
following way:
Since Hardev Singh regarded the timeliness of
the filing of the declaration under oath to be
directory, it could be filed at any time up to the
time of hearing. If, when a hearing of the applica
tion is anticipated, whether oral or otherwise, and
the declaration or any other document referred to
in subsection 70(2) has not been filed, the logical
course, it seems to me, would be for the Board to
direct the applicant to show cause, within a speci
fied period of time, why his application ought not
to be dismissed for failure to comply with subsec
tion 70(2). If compliance is effected within the
time limited, then the hearing will follow. If not,
the Board would be required to dismiss the
application. Either of those results would, in my
view, reflect the will of Parliament as expressed in
the Act.
Accordingly, I would allow the section 28
application, set aside the decision of the Immigra
tion Appeal Board and refer the matter back to
the Board with a direction to it to order the
applicant to show cause, within a specified period
of time, why his application should not be dis
missed for failure to comply with subsection 70(2).
The applicant should also be advised that if he
fails to file his declaration within the time pre
scribed his application will be dismissed. If he does
file his declaration within the time prescribed, the
matter should be redetermined by the Board after
a hearing on the merits in accordance with the
principles of fundamental justice.
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.