Medovarski v. Canada (Minister of Citizenship and Immigration), 2003 FCT 634

Date: 20030520

Docket: IMM-4060-02

Citation: 2003 FCT 634

CALGARY, Alberta, Tuesday, the 20^th day of May, 2003.

Present:           THE HONOURABLE MADAM JUSTICE SNIDER                                  

BETWEEN:

                                                              OLGA MEDOVARSKI

                                                                                                                                                       Applicant

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD"), dated August 12, 2002, wherein the IAD discontinued Olga Medovarski's (the "Applicant") appeal for lack of jurisdiction.

Background

[2]                 The Applicant is a citizen of the Republic of Yugoslavia. She was granted permanent residence upon her arrival in Canada on January 19, 1997. On November 6, 1999, the Applicant was operating a motor vehicle while intoxicated and was involved in a car accident, which resulted in the death of one person. The Applicant was charged with criminal negligence causing death and was sentenced to two years' imprisonment on June 25, 2001.

[3]                 On November 21, 2001, the Applicant was ordered deported because of her criminal conviction. The Applicant appealed this deportation to the IAD. She received a Notice to Appear from the IAD, dated April 24, 2002, stating that her appeal would be heard on September 26, 2002. On June 28, 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ( the "IRPA") and its accompanying regulations came into force. On July 23, 2002, M. Heyes, counsel for the Minister of Citizenship and Immigration, sent a Notice of Discontinuance to the Registrar of the IAD, requesting that the Applicant's appeal be discontinued under section 196 of the IRPA.

[4]                 By letter dated August 12, 2002, the IAD advised the Applicant that her appeal would be discontinued pursuant to sections 196 and 64 of the IRPA.

Issues

[5]                 The issues can be stated as follows:

           1.         Did the IAD err in law in concluding that section 196 of the IRPA had the effect of extinguishing the Applicant's appeal rights under section 192 of the IRPA? This is essentially an issue of statutory interpretation; specifically, whether the word "stay" in section 196 of the IRPA contemplates a stay that came into effect under the Immigration Act, R.S.C. 1985, c. I-2 (the "former Act") as a result of the operation of paragraph 49(1)(b)?

           2.         Is section 7 of the Charter of Rights and Freedom (the "Charter") engaged on the facts of this case and, if so, did the dismissal of the Applicant's appeal result in a breach of the principles of fundamental justice?

Relevant Statutory Provisions

[6]                 Since the first issue of this review is fundamentally one of statutory interpretation, it is useful to set out the relevant provisions in the context of the facts of this case.

[7]                 The Applicant was ordered deported pursuant to subsection 32(2) of the former Act. That provision is as follows:

[8]                 Under section 70 of the former Act, the Applicant was entitled to an appeal of the removal order. By Notice of Appeal dated November 21, 2001, she exercised her right to that appeal. The applicable paragraph of that section is as follows:

[9]                 Once the Applicant had commenced this appeal, the execution of her removal order was

stayed pursuant to paragraph 49(1)(b) of the former Act as follows:

[10]            Had the Applicant's appeal to the IAD proceeded, the IAD could have taken one of three courses of action under the former Act, one of which would have resulted in a stay of the removal order. Specifically, subsection 73(1) of the former Act provides that the IAD may dispose of an appeal by directing that the execution of the removal order be stayed:

[11]            On June 28, 2002, the IRPA came into effect. This Act contains a number of transitional provisions. One such provision is section 192, which provides for the continuance of appeals filed

with the IAD prior to the coming into force of the IRPA:

[12]            Section 196 of the IRPA provides an exception to section 192 and is at issue in this case:

[13]            The Applicant concedes that she falls within section 64 of the IRPA and would not be entitled to an appeal under that section because of her criminal conviction:

[14]            The Respondent argues that the word "stay" in section 196 of the IRPA is intended to apply only to stays granted pursuant to section 73 of the former Act and not to any other statutory stays, including those arising automatically by the operation of paragraph 49(1)(b) of the former Act. The Applicant urges the Court to adopt a broader interpretation of section 196 of the IRPA.

Analysis

Issue 1: Did the IAD err in law in concluding that section 196 of the IRPA had the effect of extinguishing the Applicant's appeal rights under section 192 of the IRPA?

(I)         Ordinary Meaning of Section 196 of the IRPA

[15]            First, I will review the ordinary meaning of section 196 of the IRPA. In my view, the plain meaning of section 196 of the IRPA accords with the position taken by the Applicant that the automatic stay of removal pending appeal pursuant to paragraph 49(1)(b) of the former Act renders section 196 of the IRPA inapplicable.

[16]            The Respondent argues that the use of the active verb "grant" in section 196 ought to be read to apply only to stays that were, in some manner, conferred on the recipient; in this case, those conferred by section 73 of the former Act and not those stays that arose by operation of law under paragraph 49(1)(b) of the former Act. In support of this argument, the Respondent referred to the definition in Black's Law Dictionary, 6th ed., of "grant" as an active verb, namely; "to bestow or confer". In contrast, the stay pursuant to paragraph 49(1)(b) is one that arises automatically. The Respondent points out that, under the former Act, the word "grant" was always used in the context of some action; for example, subsection 23(1.1) of the former Act speaks of a "grant of landing".

[17]            In my view, this argument is not sustainable. It is difficult to discern any consistency within the former Act with respect to how stays arise. In direct opposition to the use of the word "grant" in section 196 of the IRPA, I note that section 73 of the former Act provides that the IAD may dispose of an appeal by "directing that execution of the order be stayed". This is the very provision that the Respondent argues is the only section that is the subject of section 196 of the IRPA. If his interpretation of the word "grant" is correct, one could argue that not even section 73 stays are caught in the operation of section 196 of the IRPA. The better view of "stay" is to look at the result or effect of the words, rather than the accompanying verb. Whether granted or directed or otherwise applied to the situation at hand, the result is a stay.

[18]            This view of the word "stay" is also consistent with the French version of section 196. The words used in the French version of section 196 are "il ne fait pas l'objet d'un sursis"; this can be roughly translated as "is not the object of a stay". There is no bestowing or conferring of the stay. The English and French versions of a statute are equally authoritative and must be read together (Charter, s. 18(1); [1952] 2 S.C.R. 481">Manning Timber Products Ltd. v. Canada (Minister of National Revenue), [1952] 2 S.C.R. 481). If the two versions do not say exactly the same thing, then the common meaning that is shared by both ought to be adopted, unless that common meaning is unacceptable for some reason (R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002) at 80).   

[19]            The Respondent referred me to P.A. Côté, The Interpretation of Legislation in Canada, 3d ed. (Scarborough, Ontario: Carswell, 2000) ("Côté"). According to Côté, at page 327, where two versions of the same enactment seem contradictory "reconciliation must be attempted" in one of three ways:

1.        if the versions are manifestly irreconcilable, look to the legislative history of the provision;

2.         if one version is ambiguous, while the other is plain and unequivocal, the latter is preferred; and

3.         if one version has a broader meaning than the other, then the shared meaning is the more narrow of the two.

[20]            The Respondent urged me to apply the third test cited in Côté, supra. That is, if one version has a broader meaning than the other, the shared meaning should be the more narrow of the two. I do not agree with the starting point of the Respondent that the use of the active verb "grant" in the English version results in a narrower meaning.    As I discussed above, given the inconsistent use of the word "grant", the better approach to interpreting the English provision is to focus on the result. In both the English and French, the effect of the provision is a stay and the two versions are not "manifestly irreconcilable". In the alternative, the French is plain and unequivocal and, on the basis of the second test cited in Côté, supra, is to be preferred.

[21]            In conclusion on this point, I am of the view that, on an ordinary reading of the words of section 196 of the IRPA, a stay in place because of the operation of paragraph 49(1)(b) of the former Act is a stay for the purposes of this section.

(ii)         General Context of the Legislation

[22]            As informed by the jurisprudence, I cannot leave the matter here. In Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 ("Rizzo Shoes"), Iacobucci J., writing for a majority of the Supreme Court of Canada, outlined the following framework for statutory interpretation at paragraph 21:

Although much has been written about the interpretation of legislation [...] Elmer Driedger in Construction of Statutes(2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[23]            The purposive approach to statutory interpretation adopted in Rizzo Shoes, supra, has been applied by the Supreme Court of Canada in many cases (see, e.g. Chieu v. 2002 SCC 3">Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; R. v. Z. (D.A.), [1992] 2 S.C.R. 1025).

[24]            The Supreme Court of Canada has also emphasized the importance of section 12 of the Interpretation Act, R.S.C. 1985, c. I-21 in interpreting federal legislation (R. v.Gladue, [1999] 1 S.C.R. 688). Section 12 of the Interpretation Act provides as follows:

[25]            Thus, the words of section 196 of theIRPA must be "read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo Shoes, supra, at para. 21).

Overall Objectives

[26]            The immigration objectives of the IRPA are set out in subsection 3(1) of the IRPA. The

relevant paragraphs of subsection 3(1) are as follows:

[27]            Subsection 36(1) of the IRPA addresses inadmissibility on the grounds of serious criminality:

[28]            In the submission of the Respondent, the purpose of section 196 of the IRPA is to ensure that individuals found to be serious criminals under the former Act and who were in the process of appealing their deportation are treated in the same manner as those found to be serious criminals under the IRPA. This purpose is consistent with the emphasis on the protection of the public and the removal of serious criminals from Canada in the IRPA. According to the Respondent, in order to give effect to this purpose, section 196 of the IRPA needs to be interpreted in a manner that ensures it is applied to individuals on the basis of their serious criminality.    As a result, the Respondent submits that section 196 of the IRPA does not refer to the automatic stay of removal pending the appeal of a deportation order provided for in paragraph 49(1)(b) of the former Act. This interpretation gives meaning to both conditions set out in section 196 of the IRPA and properly places the emphasis on the serious criminality of the Applicant. Serious criminals who had actually been granted a stay by the IAD under the former Act, as opposed to by the automatic operation of law, would be still entitled to have their appeal heard pursuant to section 192 of the IRPA. In addition, together with section 197, there is a symmetry and harmony to the IRPA.

[29]            I do not disagree with the analysis of the Respondent as to the intent of the legislative scheme as a whole; there is a clear intent to limit the rights of convicted criminals. Paragraph 3(1)(i) could not be clearer when it states that an objective of the IRPA is to deny "access to

Canadian territory to persons who are criminals". However, what this analysis avoids is any

discussion of three important factors that I view as significant in the determination of this issue:

           1.         the provision in question is part of the transitional provisions of the IRPA;

          2.         the parties' behaviour, prior to the coming into force of the IRPA, was not consistent with the Respondent's interpretation; and

           3.         the Applicant held special or "vested" rights.

Transitional Provisions

[30]            For purposes of establishing the intent of the legislation in question, I believe that I should also examine the intent of sections 192 and 196 of the IRPA as transitional provisions.

[31]            Parliament acknowledges that a change from one legislative framework to another will affect parties who have commenced some actions under the repealed legislation. This group of affected parties is usually easily defined and is a finite subset of the much larger group of parties impacted by the new legislation. While those caught in the transition are subject to the new statute as a whole, they form a unique group to whom the general objectives of both the new law and the old law will apply. Thus, almost every statute that is intended to replace an existing statute contains transitional provisions. Given this situation, I believe that it is reasonable to conclude that an objective of Parliament is to ensure that those who are caught by legislative change are treated as fairly as possible. This objective would apply in the context of interpreting the transitional provisions of a new statute. Accordingly, where a right previously held is being affected, the transitional provision should be interpreted in a manner that respects not only the overall intent of the IRPA, but also the more limited intent of treating individuals who were caught by changing legislation fairly.

[32]            This approach to the interpretation of transitional provisions is consistent with that set out by Noël J. in Canada v. Trade Investments Shopping Centre Ltd., [1993] F.C.J. No. 678 (T.D.) (QL), aff'd [1996] F.C.J. No. 1421 (C.A.) (QL) at paragraphs 31 and 32:

Transitional provisions do not lend themselves to the scrutiny of an overly strict interpretation. It should be borne in mind that transitional provisions are secondary and incidental to the provisions of substantive law which they accompany. Unlike taxing provisions, they are not adopted as part of a coherent legislative plan in which the provisions must interrelate with one another in a logical scheme. They are ad hoc provisions the sole purpose of which is to ensure that the particular provision of substantive law which they accompany is introduced in an equitable manner[...]

In my view, when a question of interpretation arises as to the scope of a transitional provision, it must be answered by reference to the provision of substantive law it accompanies and the specific situation which Parliament sought to alleviate by introducing it.

[33]            Applied to the situation before me, where the right to an appeal is being removed, the context requires an interpretation that minimizes the negative impact on the Applicant. As interpreted by the Respondent, section 196 operates to strip a previously held right from many individuals. Arguably this is not in keeping with the general objectives of fairness and minimization of the impact on those who, through no fault of their own, are caught in the face of changing legislation.

[34]            It should be pointed out that this does not, in any way, affect the operation of the non-transitional provisions or the objectives of the IRPA as a whole. Nor does it mean that Parliament could not have removed the right of appeal to the IAD; however, if Parliament wishes to remove that right, it must do so in the clearest of terms.

Behaviour of Parties

[35]            Although the IRPA came into effect on June 28, 2002, it received Royal Assent on November 1, 2001. Both the Applicant and the Respondent were aware of its provisions for a significant period of time prior to its coming into force. However, notwithstanding their knowledge of the new provisions, neither the Applicant nor the Respondent conducted themselves in a manner consistent with the interpretation of section 196 of the IRPA put forth by the Respondent. If the Respondent's interpretation is correct, why was there not a hue and cry from the immigration bar and pleas to set down those appeals that were "in the works"? Why was there no apparent effort made by the Respondent to hear outstanding appeals before June 28, 2002?

[36]            The Applicant made her application for an appeal to the IAD in November 2001. On April 24, 2002, barely two months before the coming into force of the IRPA, the Applicant received a Notice to Appear setting down her appeal for September 26, 2002. The Notice made no reference to the IRPA or the effects of the IRPA on the Applicant's appeal. Assuming good faith, as I should, there is only one reasonable explanation of this Notice; the Respondent was interpreting section 196 of the IRPA as not applicable to the Applicant.

Special or "Vested" Rights

[37]            The Applicant submits that by making application and having a hearing set down that she held "vested" rights. Such rights should not be revoked. The Respondent relies on the case of [1977] 1 S.C.R. 271">Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1977] 1 S.C.R. 271, to argue that the Applicant had no "vested" right to have the provisions of the former Act continue to apply.

[38]            I note that Gustavson, supra, was a case involving the application of provisions of the Income Tax Act, R.S.C. 1952 c. 148. This case, on the other hand involves the rights of individuals. Further, the Applicant had already exercised her right under the former Act and a hearing had been set down. While I might not characterize this as having established a "vested" right, I certainly would opine that, having exercised her right under the former Act and having been led to believe by the actions of the Respondent that she would have her "day in Court", fairness would require that the process continue, unless taken away by clear and unmistakable terms.

[39]            On the matter of fairness, I note the comments of Iacobucci, J. in the case of Chieu, supra, at paragraph 71:

When faced with the problem of a statute which can be read in two ways, one that accords with the principles of natural justice and one that does not, this Court has consistently adopted the interpretation that favours a fuller assurance that the requirements of natural justice will be met [...]

[40]            Surely the same principle should operate in these particular circumstances to afford the Applicant the continuation of her appeal.

(iii)        Remaining Applicability of Section 196 of the IRPA

[41]            Lastly, Parliament intended that its words have some meaning. Words of a statute are not to be ignored. Thus, a legislative provision should not be interpreted so as to render it "mere surplusage" (R. v. Proulx, [2001] 1 S.C.R. 61 at para. 28 ), meaningless, pointless or redundant (Winters v. Legal Services Society, [1999] 3 S.C.R. 160; [1983] 2 S.C.R. 493">Morguard Properties Ltd v. City of Winnipeg, [1983] 2 S.C.R. 493).

[42]            Given that removal is stayed pending appeal of the deportation order in virtually all cases, the Respondent argues that the effect of this interpretation is that section 196 of the IRPA may not be applicable in any cases. There is no question that the Respondent's interpretation would result in a large number of cases for which an appeal would be denied, thus giving the provision applicability.

[43]            The Applicant, on the other hand, points out that, under the proposed interpretation, there would still be cases where section 196 of the IRPA would operate to remove any appeal to the IAD. In particular:

Included in the category of persons who would be affected by section 196 are persons who at the time of the hearing did not have outstanding appeals pending before the Board but who after proclamation of IRPA were granted an appeal. Thus, for example a person who was ordered deported and who had his appeal dismissed prior to the coming into effect of IRPA would not be affected by section 49(1)(b) and would not have had a stay in effect at the time of the proclamation of IRPA. If after IRPA's proclamation he had his appeal reinstated section 196 would come into play and he would not have a right to appeal. Thus section 196 would apply to persons who had had appeals under the former Act which were dismissed or discontinued and hence did not have stays in effect under the former Act at the time of proclamation of IRPA.

[44]            As admitted by the Applicant, this group to whom section 196 of the IRPA would apply is very small. Since almost all appellants, including those who would now be prohibited from making an appeal by section 64 of the IRPA, had an automatic stay of removal, rarely would a situation satisfy the requirements of section 196 of the IRPA for the discontinuation of an appeal from a removal order.

[45]            Nevertheless, I am satisfied that the section, as interpreted by the Applicant, is not completely devoid of meaning.

[46]            Further, even if section 196, as a result of the Applicant's interpretation becomes essentially "surplusage", I am not persuaded that the Respondent's arguments should prevail. This situation demands a more careful analysis based on consideration and balancing of all elements of statutory interpretation. Balancing those elements militates strongly in favour of an interpretation that permits the Applicant to have her appeal heard by the IAD. The unacceptable alternative would be to apply an interpretation to the provision that results in a wider applicability but that ignores the plain meaning of the words and that does not result in fair treatment of the Applicant.

Conclusion

[47]            In summary on this issue, I am of the view that the interpretation of section 196 put forward by the Applicant gives a meaning to section 196 that results in "such fair, large and liberal construction as best ensures the attainment of its objects" (Interpretation Act, s. 12). Specifically, I am satisfied that his interpretation:

1.         is supported by the ordinary meaning of the words, in both English and French;

           2.         is in accord with the general context of the legislation and, in particular, with the transitional provisions of the IRPA;

3.        results in a more equitable treatment of the Applicant; and

4.        does not render the provision completely meaningless.

[48]            Accordingly, I conclude that the word "stay" in section 196 of the IRPA contemplates a stay that came into effect as a result of the operation of paragraph 49(1)(b) of the former Act. My decision in this case does not establish whether Parliament could, through legislative amendments, remove the right of appeal from the Applicant and others in her position; it only determines that Parliament did not do so for this Applicant.

[49]            As a result, the IAD erred in concluding that section 196 had the effect of extinguishing the Applicant's appeal rights under section 192 of the IRPA.

Issue #2: Is section 7 of the Charter engaged on the facts of this case and, if so, has there been a violation of the Applicant's rights under that provision?

[50]            Given my conclusions with respect to the first issue, there is no need for me to address this issue.

Question for Certification

[51]            The Applicant proposed that I certify the following question as one of general importance that is determinative of this case:

Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C. 1985, c. I-2    as a result of the operation of paragraph 49(1)(b)?

[52]            The Respondent did not oppose the certification of this question as worded. I am mindful of the fact that this is a transitional provision that applies to a finite class of persons. At this time, it is difficult to ascertain how many individuals would fall into this category. However, I am satisfied that the population affected by this decision is significant enough in size to warrant classifying this question as one of general importance. Accordingly, I will certify the question.

ORDER

THIS COURT ORDERS that:

1.        This application for judicial review is allowed.

2.        The following question is certified:

Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C. 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)?

                     "Judith A. Snider"            

    Judge                   

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-4060-02

STYLE OF CAUSE :                          OLGA MEDOVARSKI and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

PLACE OF HEARING :                    Toronto, Ontario

DATE OF HEARING :                      April 29, 2003

REASONS FOR ORDER AND ORDER:    Snider, J.         

DATED :                                               May 20, 2003

APPEARANCES:

Mr. Lorne Waldman                                                                       FOR THE APPLICANT

Ms. Catherine Vasilaros                                                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

Waldman & Associates                                                                 FOR THE APPLICANT

Toronto, Ontario

Morris Rosenberg

Deputy Attorney General of Canada     FOR THE RESPONDENT

                    FEDERAL COURT OF CANADA

TRIAL DIVISION

Date:20030520

Docket: IMM-4060-02

BETWEEN:

OLGA MEDOVARSKI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER