Leiba v. Minister of Manpower and Immigration, [1972] SCR 660

Supreme Court of Canada

Leiba v. Minister of Manpower and Immigration, [1972] S.C.R. 660

Date: 1972-01-25

Adolf Leiba Appellant;

and

The Minister of Manpower and Immigration Respondent.

1971: October 29; 1972: January 25.

Present: Abbott, Martland, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE IMMIGRATION APPEAL BOARD

Immigration—Application for permanent residence—Appellant advised by “check-out” letter application refused for failure to meet required level of assessment—Failure of immigration officer to make report to Special Inquiry Officer—Failure to provide competent interpreter—Readmission for temporary period—Second application refused on ground not within time—Appeal allowed, order of deportation quashed and matter referred back for reassessment—Immigration Act, R.S.C. 1952, c. 325, s. 23—Immigration Regulations, Part 1, s. 34(3)(d)—Canadian Bill of Rights, s. 2(g).

The appellant, an Israeli citizen, first entered Canada with his wife on September 28, 1967, under a non-immigrant visa as a visitor for a period ending January 2, 1968. On October 4, 1967, he applied for permanent residence for himself and his wife. He was assessed by an immigration officer according to the prescribed norms of assessment, but his rating was below the required standard. He was not then represented by counsel, nor did he have fluency in either English or French. The interpreter who was provided did not have any facility in the languages spoken by the appellant.

By letter of January 19, 1968, the appellant was advised that his application was refused for failure to meet the required level of assessment, and he was requested to leave Canada by February 2, 1968, on pain of the initiation of an inquiry which might lead to deportation. This so-called “check-out” letter was an administrative practice, nowhere expressly authorized by either the Immigration Act or the Immigration Regulations.

The appellant and his wife left Canada on January 23, 1968, but they were readmitted on February 2,

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1968, under bond, for a temporary period ending March 2, 1968. An application for permanent residence was lodged on September 25, 1968. No fresh assessment was made of the applicant. His application was refused under s. 34(3)(d) of the Regulations on the ground that it had not been made before the expiry of the authorized period of his temporary stay, namely, the period ending March 2, 1968. This was reported to a Special Inquiry Officer in accordance with s. 23 of the Act, and an inquiry was directed and held on January 14, 1969.

The result of the inquiry was an order of deportation on the ground of non-compliance with s. 34(3)(d) of the Regulations. On appeal to the Immigration Appeal Board, the appellant’s appeal was dismissed. The Board grounded the dismissal on non-compliance with s. 34(3)(d) of the Regulations. The deportation order against the appellant’s wife was quashed because, contrary to s. 11(1) of the Immigration Inquiries Regulations, she had not been given an opportunity of establishing that she should not be included in the deportation order against her husband.

A motion for the reopening and reconsideration of the appellant’s appeal by the Board was dismissed. With leave, the appellant appealed to this Court.

Held: The appeal should be allowed, the deportation order quashed and the Board directed to refer the appellant’s application back to a Special Inquiry Officer for reassessment.

The Board should have set aside the deportation order and the proceedings which led to it so as to leave the appellant free to have the proceedings on his first application properly concluded, or it should have directed the Special Inquiry Officer who made the deportation order to reopen the hearing and treat it as flowing from the first application or should have itself acted on that view, with the result that the appellant could properly claim to be reassessed for permanent admission. In taking none of these courses of action, it left unredressed two errors of law which prejudiced the appellant, namely, the failure of the immigration officer to make a report to a Special Inquiry Officer, contrary to s. 23 of the Act, and the failure to provide a competent interpreter, contrary to s. 2(g) of the Canadian Bill of Rights.

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The requirement of s. 34(3)(d) of the Regulations that the appellant apply “before the expiration of the period of temporary stay in Canada authorized for him by an immigration officer” was met by him in his original application; and were it not for what was in effect a deportation order, made without authority under the “check-out” letter of January 19, 1968, his application would have proceeded in regular course.

Gana v. Minister of Manpower and Immigration, [1970] S.C.R. 699, R. v. Special Inquiry Officer, Ex p. Washington (1969), 3 D.L.R. (3d) 518, distinguished.

APPEAL from a decision of the Immigration Appeal Board, whereby the Board dismissed an appeal from a deportation order. Appeal allowed.

S.J. Smiley, for the appellant.

Derek H. Aylen, Q.C., and Paul Bétournay, for the respondent.

The judgment of the Court was delivered by

LASKIN J.—Adolf Leiba, the appellant, is an Israeli citizen who first entered Canada with his wife on September 28, 1967, under a non-immigrant visa as a visitor for a period ending January 2, 1968. On October 4, 1967, within a week after his arrival, he applied for permanent residence for himself and his wife. Under s. 34 of the amended Immigration Regulations, which became effective on October 1, 1967, and which were appropriate in his case, he was assessed by an immigration officer according to the prescribed norms of assessment, but his rating was below the required standard. He was not then represented by counsel, nor did he have fluency in either English or French. An interpreter who spoke German had been provided for the proceedings before the immigration officer. Leiba, however, did not know German, and at that time spoke only Roumanian, Yiddish and Hebrew, none of which were languages in which the interpreter had any facility.

By letter of January 19, 1968, Leiba was advised by the Immigration authorities that his ap-

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plication was refused for failure to meet the required level of assessment, and he was requested to leave Canada by February 2, 1968, on pain of the initiation of an inquiry which might lead to deportation. This so-called “check-out” letter (a description applied to it by the Immigration Appeal Board in its reasons of February 25, 1970, hereinafter referred to) was an administrative practice, nowhere expressly authorized by either the Immigration Act, R.S.C. 1952, c. 325, as amended (now R.S.C. 1970, c. I-2), or the Regulations. Indeed, s. 23 of the Act provides that where an immigration officer is of opinion after examining an applicant (as in this case) for admission for permanent residence, that it would be contrary to the Act or Regulations to admit him, he may cause such person to be detained and shall report him to a Special Inquiry Officer. (The italicizing is mine.) This, obviously, was not done by the immigration officer in this case.

Leiba and his wife complied with the request in the letter and left Canada for the United States on January 23, 1968. They were readmitted at a point of entry in Quebec on February 2, 1968, under a bond of $500, for a temporary period ending March 2, 1968. Leiba did not reapply for permanent residence during this period. His counsel, whom he first consulted in August of 1968, was candid in saying that Leiba had apparently been advised by others to await the result of a general election before making a fresh application. His file was in Toronto, and his counsel, a Montreal lawyer, arranged to have it transferred to the Montreal Immigration Office. An application for permanent residence was lodged on September 25, 1968. No fresh assessment was made of the applicant. His application was refused under s. 34(3)(d) of the Regulations on the ground that it had not been made before the expiry of the authorized period of his temporary stay, namely, the period ending March 2, 1968. This was reported to a Special Inquiry Officer in accordance with s. 23 of the Act, and an inquiry was directed and held on January 14, 1969, at which the appellant was represented by counsel. An interpreter fluent in Roumanian and English was provided. During the course of the inquiry it appeared that

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Leiba had in the meantime learned to read and understand English fairly well.

The result of the inquiry was an order of deportation on the ground of non-compliance with s. 34(3)(d) of the Regulations. Leiba’s wife was included in the order, pursuant to s. 37(1) of the Immigration Act, as a dependent of her husband. An appeal against the deportation order came on before the Immigration Appeal Board on October 28, 1969. In the course of it, Leiba’s counsel raised as an issue the failure to provide him with a competent interpreter on October 4, 1967, contending that this failure resulted in a misunderstanding of the trade skills that Leiba possessed, and that, in consequence, he was wrongly under-assessed. The Board adjourned the hearing to enable the Immigration authorities to produce the assessment made on October 4, 1967. The hearing resumed on February 10, 1970, at which time Leiba was able to participate in the proceedings without the aid of an interpreter. The assessment was included in a statutory declaration sworn on December 12, 1969, by the immigration officer who made it, and it showed that Leiba had obtained a rating of 42. The standard that had to be met was 50. During the adjournment period Leiba’s wife gave birth to a son who was, of course, a Canadian citizen.

The Immigration Appeal Board quashed the deportation order against Mrs. Leiba because of non-compliance by the Special Inquiry Officer with s. 11(1) of the Immigration Inquiries Regulations, which prescribe that no person shall be included in a deportation order, pursuant to s. 37(1) of the Act, unless that person has been first given an opportunity of establishing that he should not be so included. Mrs. Leiba had not been given this opportunity since her participation in the proceedings had been only as a witness in connection with her husband’s status. The Board relied in this respect on the judgment of this Court in Moshos et al. v. Minister of Man-

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power and Immigration[1]. Leiba’s appeal was dismissed. The Board grounded the dismissal on non-compliance with s. 34(3)(d) of the Regulations. It also refused to apply in his favour its dispensing authority under s. 15(1)(b) of the Immigration Appeal Board Act, 1966-67 (Can.), c. 90 (now R.S.C. 1970, c. I-3) which permits the Board to stay or quash a deportation order where unusual hardship would otherwise result or for compassionate considerations. Two passages from the Board’s reasons, delivered on February 25, 1970, may be noted:

(1) The deportation order in respect of the male appellant is in accordance with the law. There is no doubt that he sought to apply for permanent residence long after the expiry of his non-immigrant status on March 2, 1968. The fact that he had made an earlier application while previously a non-immigrant in Canada, is irrelevant to the legality of the deportation order, since after making it he had left the country and been re-admitted, and moreover, this application of October 4, 1967, had been refused.

(2) A good deal of the testimony at the hearing of his appeal related to the assessment made when Mr. Leiba applied for permanent residence on October 4, 1967. At the hearing on October 28, 1969, Mr. Pépin filed a copy of the application form, showing the intended occupation of Mr. Leiba to be “plasterer” whereas in fact he is a bricklayer, tile setter, and spray painter. Mr. Leiba testified that he had been almost unable to communicate with the immigration officer who filled in the form, since at that time he spoke very little English and the interpreter provided spoke German, a language of which Mr. Leiba has no knowledge. No evidence of the assessment was produced, and the Board, in order to provide every opportunity for a full and proper hearing of the appeal, adjourned with an order to the respondent to produce the assessment. This was done, and the Board heard considerable argument at the resumed hearing on February 10, 1970, as to the correctness of this assessment. Mr. Leiba received a total of 42 points. As above noted, the assessment is totally irrelevant to the legality of the deportation order, and in the circumstances of this case, has no relevance to the exercise of the Board’s jurisdiction

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pursuant to section 15(1)(b)(ii). No doubt Mr. Leiba is a hard-working and intelligent man, skilled in three trades, who has, since his arrival in Canada, acquired a good knowledge of English and a working knowledge of French. But there is nothing in section 15(1)(b)(ii) to empower the Board to grant special relief simply because an appellant, in its opinion, would be an asset if admitted to Canada as an immigrant.

On March 19, 1970, Leiba through his counsel moved for the reopening and reconsideration of his appeal by the Board, relying again on the underassessment on October 4, 1967, because of the failure to provide a competent interpreter, and invoking the dispensing authority of the Board to avoid the break-up of a family. The motion was heard on May 4, 1970, and was dismissed on May 5, 1970. Leave to appeal to this Court was given on October 13, 1970, on the following two questions of law:

1. Did the Board err in law in its decisions of February 12, 1970 and May 5, 1970 or either of them in failing to quash the deportation order of January 14, 1969 in view of the failure of the Immigration Officer, who assessed the applicant for permanent admission to Canada, to provide an interpreter in a language of the applicant?

2. Did the Board err in law in its decision of February 12, 1970 or May 5, 1970 or either of them in failing to order the re-opening of the hearing before the Special Inquiry Officer who made the deportation order of January 14, 1969, upon it appearing that the applicant was not provided by the assessing Immigration Officer with such an interpreter?

The foregoing review of the proceedings which have ended in this Court gives rise to the following question: Is Leiba’s position to be judged solely on the basis of his application of September 25, 1968, which resulted in the deportation order that the Board affirmed by a decision on February 12, 1970, and again on May 5, 1970, or, is he

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entitled to challenge the Board’s decisions on the ground of anterior errors of law referable to his examination on October 4, 1967?

Gana v. Minister of Manpower and Immigration[2], is not in point here because the Board did not proceed on the ground that it had no power to reassess the applicant. On the other hand, R. v. Special Inquiry Officer, Ex p. Washington[3], a judgment of the British Columbia Court of Appeal, was relied upon by the respondent in this case for its holding that a person who leaves Canada voluntarily loses his right to an inquiry by a Special Inquiry Officer; and his subsequent entry into Canada does not revive that right. The respondent submitted that the fact that the appellant in the present case left in obedience to the “check-out” letter of January 19, 1968, should make no difference. There is also the distinction between the two cases that here the appellant was readmitted for a temporary period whereas in the Washington case readmission was refused and the applicant was detained and ordered deported after an inquiry.

If this was the case where the appellant had failed to pursue his rights of appeal against a deportation order and had instead made a fresh application for permanent residence, which was out of time under s. 34(3)(d) of the Regulations, that would clearly be the end of the matter. This Court has no authority to dispense with the observance of the Act or the Regulations according to their respective terms. Leiba, however, was never in a position to appeal in respect of his first application on October 4, 1967, because the examining immigration officer did not carry out his statutory duty under s. 23 of the Act to report Leiba to a Special Inquiry Officer. But Leiba did make a fresh application for admission; and it was the position of the Special Inquiry Officer and of the Board in dealing with this application that the earlier proceedings were spent. Leiba’s counsel, when he obtained one, might well have sought to have those proceedings regularized so as to give him the benefit of an inquiry; and, had he been successful, the ensuing inquiry would have

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enabled Leiba to have his trade skills considered by presentation through a competent interpreter. Section 4 of the Immigration Inquiries Regulations, introduced on November 20, 1967, gives an examinee the right to such an interpreter as fully as would be the result of the application of s. 2(g) of the Canadian Bill of Rights.

Although Leiba did not take the steps indicated to compel an inquiry under s. 23 in respect of his application of October 4, 1967, I do not think that the breach of statutory duty can be as lightly set aside as was done here by reliance, in relation to the application of September 25, 1968, on his failure to observe the time limit specified in s. 34(3)(d) of the Regulations. The requirement of this provision that he apply “before the expiration of the period of temporary stay in Canada authorized for him by an immigration officer” was met by him in his original application; and were it not for what was in effect a deportation order, made without authority under the “check-out” letter of January 19, 1968, his application would have proceeded in regular course. The second application was conceived by his counsel as in substance a means of obtaining rectification of the two errors of law of which Leiba had been the innocent victim under his original application, namely, the failure to provide a competent interpreter and the failure to make a report to a Special Inquiry Officer.

I do not agree that the objects served by s. 34(3)(d) of the Regulations, which would appear to be to ensure regularity and despatch, are vindicated here by the invocation of that provision against Leiba under the circumstances that I have recounted. There is no basis for fixing Leiba with waiver unless it be in the fact of making a second application that wets clearly out of time. If that application was a nullity so far as providing Leiba with any standing thereunder, I consider it equally a nullity so far as it was invoked to deprive him of the benefit of s. 23 of the Act in relation to his original timely application.

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The Immigration Appeal Board did not consider the breach of s. 23 of the Act in its reasons of February 25, 1970, nor non-compliance with s. 2(g) of the Canadian Bill of Rights, but only that the application of October 4, 1967, had been refused, that the alleged under-assessment was irrelevant to the deportation order that was made, and that the application out of which the deportation order arose was out of time. This was to grasp the form rather than the substance. The Board is authorized by s. 13 of its constituent Act to order the reopening of the hearing before the Special Inquiry Officer, and s. 14 of that Act empowers it to make the decision that the Special Inquiry Officer should have made. In this case the Board should have set aside the deportation order and the proceedings which led to it so as to leave Leiba free to have the proceedings on his first application properly concluded, or it should have directed the Special Inquiry Officer who made the deportation order to reopen the hearing and treat it as flowing from the first application or should have itself acted on that view, with the result that the applicant could properly claim to be reassessed for permanent admission. In taking none of these courses of action, it left unredressed two errors of law which prejudiced the appellant.

Notwithstanding the limited nature of the two questions on which leave to appeal was granted, it is open to this Court to raise other questions of law, and hence it could consider the breach of obligation imposed by s. 23 of the Act. I would, accordingly, allow the appeal, quash the deportation order, and refer this matter back to the Board with a direction that the appellant’s application be referred back to a Special Inquiry Officer in order that the appellant may be reassessed for permanent admission to Canada.

Appeal allowed.

Solicitor for the appellant: S.J. Smiley, Montreal.

Solicitor for the respondent: C.R. Munro, Ottawa.