Supreme Court of Canada
Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470
Date: 1977-05-17
The Minister of Manpower and Immigration Appellant;
and
Latchman Hardayal Respondent.
1977: April 29; 1977: May 17.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Immigration—Minister issuing a permit to remain in Canada—Cancellation of the permit—Administrative decision—Immigration Act, R.S.C. 1970, c. I-2, s. 8—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.
Appeal—No lis between parties when leave of appeal is granted—Exceptional circumstances.
Respondent failed to qualify for admission to Canada as a landed immigrant. As his wife was a native and resident of Canada, he received from the Minister a permit, under the provisions of s. 8 of the Immigration Act, to remain in Canada during the period from June 11, 1975 to June 10, 1976. Before expiry of that period, on March 25, 1976, the permit was cancelled in a letter from the Minister, over the signature of an immigration officer. Respondent applied under s. 28 of the Federal Court Act to review and set aside the decision of the officer in charge of the Canada Immigration Centre (according to the language of the application). The Federal Court of Appeal, by a majority, set aside the decision and referred the matter back to the Minister for determination after having given the respondent a reasonable opportunity to make submission on the proposal that the Minister cancel his permit. Leave to appeal to this Court was granted on June 21, 1976.
Held: The appeal should be allowed.
Apart from the purported cancellation, the Minister’s permit had expired on June 11, 1976, ten days before the hearing by this Court of the application for leave to appeal. Therefore, there was no further lis between the parties at that time. In such circumstances, the well-settled practice of this Court has been to refuse to entertain an appeal. However this Court had permitted exceptions to this rule, under exceptional circumstances, where a question of law of great and nation-wide importance was
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involved. In this case the affidavit, on behalf of the appellant, stated that 900 Minister’s permits had been issued in similar circumstances, that the issuance of such permits introduced an element of flexibility and humanitarianism into the administration of immigration law and that the system could only be carried on in the knowledge that the permits issued by the Minister could be cancelled on a purely administrative basis should information relating to the recipient warrant the cancellation of his permit. This Court considered these circumstances exceptional, in view of the policy developed, and granted leave to appeal.
As the appeal itself, it must be understood that the application was made under s. 28 of the Federal Court Act, which provides review of a decision other than an order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis. The Minister’s decision to cancel the permit is certainly an order of an administrative nature. The question to be determined is whether this decision, like the issuance of permits under s. 8, was not required to be taken on a judicial or quasi-judicial basis. This Court is of the view that the Minister’s power under s. 8 to grant, to extend, or cancel a permit with no direction as to the method which is to be used and no limitation on the persons who may be the subject of such permits, was intended to be purely administrative and not to be carried out in any judicial or quasi-judicial manner. Therefore the decision does not fall within those subject to review under s. 28 of the Federal Court Act.
International Brotherhood of Electrical Workers et al. v. Winnipeg Builders’ Exchange et al., [1967] S.C.R. 628; Le Syndicat des Employés du Transport de Montréal et al. v. Attorney General of the Province of Quebec, [1970] S.C.R. 713; Wood, Wire & Metal Lathers’ International Union et al. v. United Brotherhood of Carpenters and Joiners of America et al., [1973] S.C.R. 756; Calgary Power Ltd. v. Copithorne, [1959] S.C.R. 24 followed; The King ex rel. Tolfree v. Clark et al., [1944] S.C.R. 69; Coca-Cola of Canada Ltd. v. Mathews, [1944] S.C.R. 385, distinguished.
APPEAL from a judgment of the Federal Court of Appeal setting aside the decision of the Immi-
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gration Officer. Appeal allowed.
G.W. Ainslie, Q.C., and Warren Black, for the appellant.
J. Vincent Toslsie and Michael Makarchuk, for the respondent.
The judgment of the Court was delivered by
SPENCE J.—This is an appeal from the judgment of the Federal Court of Appeal pronounced on May 20, 1976. By that judgment, the said Federal Court of Appeal allowed an appeal from the decision of the Immigration Officer in charge of the Canada Immigration Centre at Kitchener, Ontario, made on March 25, 1976 and referred the matter back to the Minister of Manpower and Immigration for determination after having given the applicant, here respondent, a reasonable opportunity to make submissions on the proposal that the Minister cancel his permit. The appeal was by leave of this Court pronounced on June 21, 1976.
The respondent had applied for admission to Canada as a landed immigrant but upon his examination before the Immigration Officer in Kitchener it was found that he did not possess the qualifications entitling him to a grant of landed immigrant status. The respondent’s wife was living in Canada and he testified she had been born here, therefore, the Minister on June 11, 1975 granted to the respondent a permit under the provisions of s. 8 of the Immigration Act, R.S.C. 1970, c. I-2. The said section provides:
Entry under Permit
8. (1) The Minister may issue a written permit authorizing any person to enter Canada or, being in Canada, to remain therein, other than
(a) a person under order of deportation who was not issued such a written permit before the 13th day of November 1967, or
(b) a person in respect of whom an appeal under section 17 of the Immigration Appeal Board Act has been taken that has not been successful.
(2) A permit shall be expressed to be in force for a specified period not exceeding twelve months.
(3) The Minister may at any time, in writing, extend or cancel a permit.
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(4) The Minister may, upon the cancellation or expiration of a permit, make a deportation order respecting the person concerned.
(5) The Minister shall submit to Parliament within thirty days of the commencement of the first session of Parliament in each year a report showing all permits, with particulars thereof, issued during the preceding calendar year.
That permit, purporting to be signed for the Minister, to quote its words, “authorized [the respondent] to enter Canada or, being in Canada, to remain therein for the period specified below as the period during which this permit is in force and is authorized to engage in employment”.
The permit came into force on its date, June 11, 1975, and was to remain in force until June 10, 1976.
On March 25, 1976, that is, about two and a half months before its expiry, the Minister, again over the signature of the officer in charge of the Canada Manpower Centre in Kitchener, wrote to the respondent a letter which read:
Whereas pursuant to subsection (1) of Section 8 of the Immigration Act, a permit was issued on June 11, 1975, authorizing you to remain in Canada until 10th June, 1976.
Take notice that pursuant to subsection (3) of Section 8 of the said Act, I hereby cancel the said permit, I having been authorized by the Minister of Manpower and Immigration pursuant to Section 2 and Section 67 of the Act to cancel such Permit.
Accompanying this letter was another letter from the same officer purporting to act not for the Minister but as an officer in charge of the Immigration Centre which read, in part:
As you no longer have status in Canada you are requested to leave Canada forthwith.
If for any reason you do not leave Canada, it is incumbent upon you to report forthwith to an Immigration Officer, in order to comply with subsection 7(3) of the Immigration Act, which reads as follows:
…
In accordance with that direction, the respondent attended before one J.A. Cummings, a Special
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Inquiry Officer, on March 31, 1976, and, after that Special Inquiry Officer had conducted a hearing and according to the record, the Special Inquiry Hearing was adjourned on April 7, 1976.
By notice of application dated the 2nd of April 1976, counsel for the respondent applied to the Federal Court under s. 28 of the Federal Court Act to review and set aside the decision of the officer in charge of the Canada Immigration Centre at Kitchener, purporting to cancel the permit issued on June 11, 1975.
I have used the language of the application although it is quite evident that the document signed by the officer in charge of the Canada Immigration Centre at Kitchener dated March 25, 1976 was and purported to be done on the direction of the Minister of Manpower and Immigration and was a cancellation of the previously issued permit made by virtue of the power of the Minister set out in s. 8(3) of the Immigration Act. The judgment of the Federal Court of Appeal upon such s. 28 application was issued on May 20, 1976. At that date, the Minister’s permit issued on June 11, 1975 was, by its terms and apart from the purported cancellation thereof dated March 25, 1976, still in effect. The application for leave to appeal from that judgment of the Federal Court of Appeal came before this Court on June 21, 1976 and on that day this Court made its order granting leave to appeal. Even apart from the purported cancellation of March 25, 1976, the Minister’s permit had, by its words, expired on June 11, 1976, ten days before the hearing of and the order upon the application for leave to appeal to this Court.
Counsel for the Minister and for the respondent were agreed that the granting of a ministerial permit under the provisions of s. 8 was a matter altogether administrative in character and required no notice to and no hearing of the recipient. Therefore, even apart from cancellation, at the time when leave to appeal to this Court was granted and certainly in 1977 when the appeal was heard, there was no further lis between the parties. In such circumstances, the well-settled practice of this Court has been to refuse to entertain an
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appeal: The King ex rel. Tolfree v. Clark et al., and Coca-Cola of Canada Ltd. v. Mathews.
The King v. Clark was an application for leave to appeal under the provisions of s. 41 of the Supreme Court Act and Duff C.J. said at p. 72:
It is one of those cases where, the state of facts to which the proceedings in the lower Courts related and upon which they were founded having ceased to exist, the sub‑stratum of the litigation has disappeared. In accordance with well-settled principle, therefore, the appeal could not properly be entertained.
The application was dismissed.
In the Coca-Cola case, the appeal was taken as of right but upon the appeal being argued the appeal came to a like conclusion. It was dismissed.
However, in International Brotherhood of Electrical Workers et al. v. Winnipeg Builders’ Exchange et al., this Court considered an appeal brought after leave had been granted to appeal from the decision of the Court of Appeal for Manitoba affirming, subject to a variation, an order in the Queen’s Bench continuing until the trial of the action an interlocutory injunction. At the opening of the argument of the appeal, counsel for the respondent moved to quash the appeal on the ground, inter alia, that the injunction granted was spent and that the question of whether or not it should have been granted had become academic. Cartwright J., as he then was, said:
In such circumstances the well-settled practice of this Court has been to refuse to entertain an appeal; it is necessary to refer only to Sun Life Assurance Company of Canada v. Jervis, [1944] A.C. 111, The King ex rel. Tolfree v. Clark et al., [1944] S.C.R. 69, and Coca-Cola Company of Canada Ltd. v. Mathews, [1944] S.C.R. 385. However, these authorities and others to the same effect were stressed during the argument on the motion for leave to appeal and, as I understand it, leave was granted because it was urged that a question of law of great and nation-wide importance was involved as to which there was a difference of opinion in the Courts
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below and, from the nature of things, it was unlikely that unless leave were granted in this or a similar case it would ever be possible to bring that question before this Court for determination.
In Le Syndicat des Employés du Transport de Montréal et al. v. Attorney General of the Province of Quebec, a similar course was adopted by this Court in reference to an appeal from the decision of the Court of Appeal of Quebec as to an injunction order which had been granted and which at the time the appeal came on for hearing had long since expired.
Again, in Wood, Wire & Metal Lathers’ International Union et al. v. United Brotherhood of Carpenters and Joiners of America et al., it was said, in the majority decision, at p. 759:
When the appeal came to be heard in this Court, there was submitted to us evidence that there was another agreement now in effect said to have been executed on August 3, 1972. These agreements have clauses 14.01 in exactly the same terms. Despite the fact that the original collective agreement has long since expired and in view of the fact that no appeal could reach this Court before the expiry of the usual collective agreement this Court has considered the appeal adopting the principle outlined by Cartwright J., as he then was, in International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628 at pp. 636-7.
When the application for leave to appeal in this case came before this Court, it was supported by the affidavit of Alan E. Gotlieb, the Deputy Minister of the Department of Manpower and Immigration, who swore, inter alia, that 4,000 Minister’s permits had been issued under the said s. 8 of the Immigration Act in 1975 of which 900 were issued in circumstances similar in part to those in the present appeal, that the issuance of the Minister’s permits introduced an element of flexibility and humanitarianism into the administration of immigration law and that the system could only be carried on in the light of what Mr. Gotlieb termed was the knowledge that the Minister’s permits
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issued could be cancelled on a purely administrative basis should information relating to past or potential criminal or subversive activities or any other information which would warrant the removal of the recipient of the permit from entry come to the attention of the Minister. Therefore, in view of the policy developed in this Court to cover exceptional circumstances, this Court granted leave to take this appeal.
Turning to the consideration of the appeal itself, it must be understood that the application made to the Federal Court of Appeal was under the provisions of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, which provides:
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Certainly the decision of the Minister to cancel the permit is an order “of an administrative nature”. The question to be determined is whether or not it was “required by law to be made on a judicial or quasi-judicial basis”. As I have pointed out, the parties are agreed that the issuance of the permit under subs. (1) of s. 8 of the Immigration Act is an administrative act not required to be taken on a judicial or quasi-judicial basis. The permit is for a specified period not exceeding twelve months. Under subs. (5) of s. 8, the Minister is required to submit to Parliament within thirty days of the commencement of the first session in each year a report showing all permits
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with particulars thereof issued during the preceding calendar year. An example of a decision by a Minister which was found to be administrative and not to require discharge in either a judicial or quasi-judicial fashion is the decision of this Court in Calgary Power Ltd. v. Copithorne, where Martland J., giving judgment for the Court, said at p. 30:
In determining whether or not a body or an individual is exercising judicial or quasi‑judicial duties, it is necessary to examine the defined scope of its functions and then to determine whether or not there is imposed a duty to act judicially. As was said by Hewart L.C.J. in Rex v. Legislative Committee of the Church Assembly, [1928] 1 K.B. 411 at 415:
In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super-added to that characteristic the further characteristic that the body has the duty to act judicially.
Having regard for the detailed directions as to permitting entry of immigrants and as to the refusal to permit entry, or the deportation of those who have entered Canada, set out in the many provisions of the Immigration Act, I am strongly of the view that the Minister’s power under s. 8 of the Immigration Act to grant, to extend, or cancel a permit with no direction as to the method which is to be used in the exercise of the power and, for the present purposes, no limitation on the persons who may be the subject of such permits, was intended to be purely administrative and not to be carried out in any judicial or quasi-judicial manner, and that, in fact, to require such permit to be granted, extended or cancelled only in the exercise of a judicial or quasi-judicial function would defeat Parliament’s purpose in granting the power to the Minister. As I have said, the evidence indicates that the power is only used in exceptional circumstances and chiefly for humanitarian purposes. Such power was, in the opinion of Parliament, necessary to give flexibility to the administration of the immigration policy, and I cannot conclude that Parliament intended that the exercise of the power be subject to any such right of a fair
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hearing as was advanced by the respondent in this case. It is true that in exercising what, in my view, is an administrative power, the Minister is required to act fairly and for a proper motive and his failure to do so might well give rise to a right of the person affected to take proceedings under s. 18(a) of the Federal Court Act but, for the reasons which I have outlined, I am of the opinion that the decision does not fall within those subject to review under s. 28 of the said Federal Court Act.
I would, therefore, allow the appeal.
In accordance with the condition set out in the order granting leave to appeal, the appellant shall pay the respondent’s costs upon this appeal on a solicitor and client basis.
Appeal allowed.
Solicitor for the appellant: The Deputy Attorney General of Canada, Ottawa.
Solicitor for the respondent: J. Vincent Toolsie, Waterloo, Ontario.
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