Pringle et al. v. Fraser, [1972] SCR 821

Supreme Court of Canada

Pringle et al. v. Fraser, [1972] S.C.R. 821

Date: 1972-03-30

E.E. Pringle and The Department of Manpower and Immigration (Plaintiffs) Appellants;

and

Hugh Hypolite Fraser (Defendant) Respondent.

1972: March 13, 30.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR.

Immigration—Deportation order—Certiorari proceedings—Provincial superior courts excluded from exercising jurisdiction to review deportation orders—Immigration Appeal Board Act, 1966-67 (Can.), c. 90 [now R.S.C. 1970, c. I-3, s. 22]—Immigration Act, R.S.C. 1952, c. 325 [now 1970, c. I-2].

A Special Inquiry Officer under the Immigration Act, now R.S.C. 1970, c. I-2, made a deportation order against the respondent on the ground, inter alia, that his dependent son was not admissible to Canada under the Immigration Regulations. Immediately thereafter the respondent made out and served on the inquiry officer a notice of appeal to the Immigration Appeal Board. On advice of his counsel, the respondent then took certiorari proceedings to have the deportation order quashed; and, alternatively, he invoked mandamus. His application was dismissed by the judge of first instance, but, on appeal, the Court of Appeal set aside the decision of first instance and quashed the deportation order. Mandamus was refused on the ground that the Court could not issue directions to the immigration authorities. The matter then came before this Court by its leave and argument was limited by counsel to the single question of the jurisdiction of the Supreme Court of Ontario to entertain certiorari proceedings to quash a deportation order made under the Immigration Act.

Held: The appeal should be allowed, the order of the Court of Appeal set aside and the order of the judge of first instance restored.

The contention of the appellants, the Special Inquiry Officer and the Department of Manpower and Immigration, that upon the enactment of the Immigration Appeal Board Act by 1966-67 (Can.), c. 90, now R.S.C. 1970, c. I-3, and having regard in par-

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ticular to s. 22 in its relation to ss. 11 and 12, and to the consequential changes in the Immigration Act, no provincial superior court may exercise its certiorari or equivalent jurisdiction to review deportation orders was accepted.

In the context of the overall scheme for the administration of immigration policy the words in s. 22 (“sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction”) are adequate not only to endow the Board with the stated authority but to exclude any other court or tribunal from entertaining any type of proceedings, be they by way of certiorari or otherwise, in relation to the matters so confided exclusively to the Board.

APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from a judgment of Haines J. Appeal allowed.

N.A. Chalmers, Q.C., and E.A. Bowie, for the appellants.

C.L. Rotenberg, for the respondent.

The judgment of the Court was delivered by

LASKIN J.—On October 2, 1970, the appellant E.E. Pringle, a Special Inquiry Officer under the Immigration Act, now R.S.C. 1970, c. I-2, made a deportation order against the respondent Hugh Hypolite Fraser on the ground, inter alia, that his dependent son was not admissible to Canada under the Immigration Regulations. Immediately thereafter and on the same day, the respondent made out and served on Pringle a notice of appeal to the Immigration Appeal Board. Being advised by his counsel that the appeal might not be heard for eighteen months or more, that during the pendency of his appeal he could not leave Canada without jeopardizing his application for landed immigrant status unless he obtained special permission to leave, and that the deportation order was vulnerable because of a defect of jurisdiction, Fraser took certiorari proceedings in the

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Supreme Court of Ontario to have the deportation order quashed; and, alternatively, he invoked mandamus. His application was dismissed by Haines J. without written reasons, but on appeal, for reasons delivered by Arnup J.A., the Ontario Court of Appeal set aside the decision of Haines J. and quashed the deportation order. Mandamus was refused on the ground that the Court could not issue directives to the immigration authorities. The matter is now before this Court by its leave, granted on March 29, 1971.

The argument before this Court was limited by counsel to the single question of the jurisdiction of the Supreme Court of Ontario to entertain certiorari proceedings to quash a deportation order made under the Immigration Act. No issue was taken by counsel for the appellants, Pringle and the Department of Manpower and Immigration, with the general authority of the Supreme Court of Ontario to quash orders of inferior tribunals, on grounds such as those invoked in this case, through proceedings by way of or in the nature of certiorari to quash. The contention is simply that upon the enactment of the Immigration Appeal Board Act by 1966-67 (Can.), c. 90, now R.S.C. 1970, c. I-3, and having regard in particular to s. 22 in its relation to ss. 11 and 12, and to the consequential changes in the Immigration Act, no provincial superior court may exercise its certiorari or equivalent jurisdiction to review deportation orders. I am of the opinion that this contention should succeed and that the judgment of the Ontario Court of Appeal should therefore be set aside and the order of Haines J. restored.

Before setting out the grounds of this conclusion I should point out that all the matters connected with the present case, originating in Fraser’s application, when a visitor to Canada, for permanent admission, arose after the effective date of the Immigration Appeal Board Act.

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Again, this Court is not concerned in this case with the effect of the Federal Court Act, 1970‑71-72 (Can.), c. 1, which came into force on June 1, 1971.

Prior to the enactment of the Immigration Appeal Board Act and the establishment of the Immigration Appeal Board thereunder, with the powers conferred upon it by that Act, deportation orders could only be challenged through the appeal procedure prescribed by s. 31 of the Immigration Act, R.S.C. 1952, c. 325. Under this procedure, it was for the responsible Minister to direct an Immigration Appeal Board to consider an appeal, and it was open to the Minister to review the decision of such a Board. In addition, certiorari lay, but subject to the privative terms of s. 39 of the Immigration Act. This section was repealed when the Immigration Appeal Board Act was passed.

The Immigration Appeal Board Act established a completely new scheme of review (I do not use this word in any technical sense) of deportation orders. The Board for which it provided is declared by s. 7 to be a court of record, and is given the powers of a superior court in respect of the attendance and examination of witnesses, production of documents, enforcement of its orders and ancillary matters necessary or proper for the due exercise of its jurisdiction. Members of the Board, being not fewer than seven nor more than nine, are by s. 3 appointed to hold office during good behaviour, with compulsory retirement at age seventy. By s. 8, the Board has, subject to the approval of the Governor in Council, rule-making power governing its activities and the practice and procedure in relation to appeals to it under the Act.

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Sections 11, 12 and 22 read as follows:

11. A person against whom an order of deportation has been made under the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact.

12. The Minister may appeal to the Board on any ground of appeal that involves a question of law or fact, or mixed law and fact, from a decision by a Special Inquiry Officer that a person in respect of whom a hearing has been held is not within a prohibited class or is not subject to deportation.

22. Subject to this Act and except as provided in the Immigration Act, the Board nasi sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction, that may arise in relation to the making of an order of deportation or the making of an application for the admission to Canada of a relative pursuant to regulations made under the Immigration Act.

This appellate jurisdiction is reinforced by a provision in s. 23 for an appeal from the Board to this Court, by leave, on any question of law, including a question of jurisdiction.

The Immigration Appeal Board Act has thus brought into the law a wider avenue for initial appeal from deportation orders than theretofore existed. This Act and the Immigration Act, and the Regulations promulgated under each of them, constitute a code for the administration of immigration matters and for the review of proceedings in such matters. There is no common law of immigration. Parliament’s authority to establish such a code is not challenged; nor is Parliament’s authority to deny to or remove certiorari jurisdiction from provincial superior courts over deportation orders. What is asserted by respondent is that Parliament has not expressed itself adequately to accomplish this last-mentioned end. Arnup J.A.

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put the matter in a key paragraph of his reasons as follows:

I do not find in the Immigration Appeal Board Act any language which clearly takes away this Court’s jurisdiction by way of certiorari, nor any language which could possibly be said to transfer that jurisdiction to the Board or any other court. The Immigration Appeal Board itself has said it does not have it. That Board does have jurisdiction to make binding decisions (subject to appeal) as to jurisdiction, including its own, in relation to orders of deportation. If our certiorari jurisdiction in deportation matters ceased with the setting up of that Board, and that Board has authoritatively decided it has no jurisdiction by way of certiorari in deportation matters, then it follows that nobody now has that jurisdiction. I cannot accept this conclusion.

I am satisfied that in the context of the overall scheme for the administration of immigration policy the words in s. 22 (“sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction”) are adequate not only to endow the Board with the stated authority but to exclude any other court or tribunal from entertaining any type of proceedings, be they by way of certiorari or otherwise, in relation to the matters so confided exclusively to the Board. The fact that the result of such an interpretation is to abolish certiorari as a remedy for challengeable deportation orders is not a ground for refusing to give language its plain meaning. This Court has held that habeas corpus, certainly as honoured a remedy as certiorari, takes its colour from the substantive matters in respect of which it is sought to be invoked, and its availability may depend on whether it is prescribed as a remedy by the competent legislature: see In re Storgoff[2]. So too, certiorari, as a remedial proceeding, has no necessary ongoing life in relation to all matters for which it could

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be used, if competent excluding legislation is enacted.

The result I would reach goes beyond literal justification in the language of s. 22. The facts of the present case show the incompatibility of the appellate jurisdiction vested in the Board with the survival of certiorari in provincial superior courts. It was not suggested that the appeal to the Board would be aborted by proceedings to quash taken in the Supreme Court of Ontario. In fact, Fraser did not abandon his appeal upon taking certiorari proceedings. However, I do not propose to deal with this case as if an election of remedies had been made and that this must determine the outcome. Certainly, the likelihood of two conflicting decisions (each ultimately appealable to this Court) has nothing to commend it. The only practical resolution is to recognize the exclusiveness of the special procedure ordained by Parliament.

Although s. 39 of the Immigration Act, as it stood before the enactment of the Immigration Appeal Board Act, recognized the existence of certiorari jurisdiction in provincial superior courts, its repeal cannot be taken to have relnvigorated that jurisdiction by removal of the privative limitations which that section expressed. The repeal was in furtherance of the scheme of review brought in by the Immigration Appeal Board Act, and, in my opinion, reinforces the conclusion that certiorari jurisdiction over deportation orders was thereafter no longer exercisable.

The effect of the legislation in the present case cannot be tested by principles derived from cases interpreting privative clauses, nor even by viewing particular legislation as providing a yardstick of preference where two tribunals have had concur-

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rent jurisdiction. I do not find it necessary to examine Nanaimo Community Hotel v. Board of Referees[3] in any depth. It is enough to note the weight given there by the majority to the legislative language of “exclusive jurisdiction to hear and determine all questions”, a jurisdiction reposed in the Exchequer Court, and to contrast the stronger language in the Immigration Appeal Board Act, even taking this stronger language alone and without placing it in the setting of a new and different scheme of administration than had previously been operative.

At bottom, the position taken by the respondent in reliance upon the reasons of the Ontario Court of Appeal is that the Immigration Appeal Board Act must explicitly associate the reposing of sole and exclusive jurisdiction in the Board with a withdrawal of recourse to certiorari (and other prerogative writs, if they too are to become unavailable). That, however, would only make plainer what is already plain enough.

The probability of delay in the hearing of Fraser’s appeal cannot, as a matter lying outside of the statutory language and the scheme of administration, preserve or revive a supervisory jurisdiction in a provincial court which would otherwise be unexercisable. Nor is it any answer to the force of s. 22 and its associated provisions that under the Regulations promulgated by the Board the right of appeal given by the Act must be exercised by service of a prescribed notice within twenty-four hours after service of the deportation order or within a longer period, not exceeding five days, that the Board Chairman may allow: see s. 4(1) and (2) of the Regulations.

I repeat that I would allow the appeal, set aside the order of the Ontario Court of Appeal and re-

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store the order of Haines J. dismissing the certiorari proceedings. Fraser is, of course, free to pursue his appeal before the Board. In accordance with the terms of the order granting leave to appeal the respondent will have his costs in this Court.

Appeal allowed.

Solicitor for the appellants: N.A. Chalmers, Toronto.

Solicitor for the respondent: C.L. Rotenberg, Toronto.