Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560

Madhur Lata Prassad Appellant

v.

Minister of Employment and Immigration Respondent

indexed as: prassad v. canada (minister of employment and immigration)

File No.: 19608.

1988: November 28; 1989: March 23.

Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

on appeal from the federal court of appeal

Immigration -- Adjournment of inquiry -- Powers of adjudicator ‑‑ Application for a Minister's permit authorizing a person to remain in Canada ‑‑ Whether adjudicator must adjourn immigration inquiry to enable appellant to pursue her application made under s. 37(1) of the Immigration Act, 1976 -- Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(3), 37(1), 113(e) -- Immigration Regulations, 1978, SOR/78-172, s. 35(1).

Appellant was deported from Canada on June 6, 1984 and re-entered the country without the written consent of the Minister of Employment and Immigration contrary to s. 57(1) of the Immigration Act, 1976. On November 2, 1984, the immigration inquiry held by an adjudicator pursuant to s. 27(3) of the Act was adjourned to give appellant's counsel time to prepare. Two weeks after the adjournment, appellant sent a letter to the Minister seeking a permit authorizing her to remain in Canada pursuant to s. 37(1)(b) of the Act. When the inquiry reconvened on November 21, 1984, appellant requested an adjournment to permit her application to the Minister to be considered. The adjudicator refused the request and proceeded with the inquiry. At the conclusion of the inquiry, a deportation order was made against the appellant. The Federal Court of Appeal dismissed appellant's application, made under s. 28 of the Federal Court Act, to review and set aside the adjudicator's decision. The Court held that the adjudicator did not err in refusing an adjournment of the inquiry to permit the appellant to pursue an application under s. 37(1) of the Act.

Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed.

Per Dickson C.J. and McIntyre, Lamer, La Forest and Sopinka JJ.: An adjudicator, acting pursuant to s. 27(3) of the Immigration Act, 1976, is not required to adjourn an inquiry to enable the subject of that inquiry to pursue an application under s. 37(1) of the Act. The adjudicator is given discretion under s. 35(1) of the Immigration Regulations, 1978, and s. 113(e) of the Act to determine whether an adjournment shall be granted or refused, and such discretion is guided by the general principle that a "full and proper inquiry" be held. In exercising this discretion to adjourn, the adjudicator may consider such factors as the number of adjournments already granted and the length of time for which an adjournment is sought. Where an adjournment is requested in order that an application under s. 37 might be pursued, the adjudicator may also consider the opportunity available to the subject of the inquiry to apply to the Minister prior to the request for an adjournment. Here, the adjudicator properly refused to adjourn the inquiry. Appellant could have applied at any time between the date of her removal from Canada on June 6, 1984, and the recommencement of the inquiry on November 21, 1984. She did not send a letter to the Minister's office until November 16, 1984.

The decision of the Court in Ramawad is distinguishable from the present case. Ramawad involved provisions of the former Immigration Act and Regulations specific to an application for an employment visa. The final determination of the visa application required the decision of the Minister. In the present case, the s. 37(1) application was not an integral part of the proceedings before the adjudicator under s. 27(3) but a remedy that was clearly separate from that proceeding. The mere fact that there was an alternative remedy open to the appellant did not convert it into an automatic concomitant right to have other proceedings adjourned to accommodate the application. Nothing in s. 37 suggests that an application under that section is to be treated any differently than an application for other remedies.

Per Wilson and L'Heureux-Dubé JJ. (dissenting): The adjudicator erred in refusing to adjourn the immigration inquiry. This Court's reasoning in Ramawad applies to an application for a Minister's permit pursuant to s. 37(1) of the Immigration Act, 1976. While a person has no legal right to obtain a permit under s. 37(1), such a person has a right in the sense of a legal entitlement to obtain a decision from the Minister as to whether his case is deserving of special relief. Since the Minister has no power to issue a permit to a person against whom a removal order has been made (s. 37(2)), although such a person might otherwise be deserving of special consideration, the denial of a request to adjourn the immigration inquiry pending disposition of the application for a Minister's permit will generally constitute the denial of the right to obtain a decision from the Minister as well. This result could not have been intended by Parliament. Moreover, the expanding doctrine of administrative fairness strongly militates in favour of ensuring that the inquiry is not held in a way which denies the applicant his entitlement to a decision from the Minister. Therefore, where an application for a permit is made pursuant to s. 37(1), the adjudicator must adjourn the immigration inquiry pending the disposition of the applicant's request by the Minister or someone authorized to exercise the Minister's authority. This will be the case where there has not been a previous refusal to grant such a permit, based on the circumstances existing at the time the application is made. Although the adjudicator has a general discretion to adjourn by virtue of s. 35(1) of the Immigration Regulations, 1978, where an application under s. 37(1) of the Act is made before a determination is reached on the merits of the immigration inquiry, the adjudicator may exercise this discretion and refuse the adjournment only in those cases where doing so will not compromise the applicant's entitlement to a consideration of his case and a decision from the Minister.

Cases Cited

By Sopinka J.

Distinguished: Ramawad v. Minister of Manpower and Immigration, 1977 CanLII 208 (SCC), [1978] 2 S.C.R. 375; applied: Minister of Employment and Immigration v. Widmont, 1984 CanLII 5368 (FCA), [1984] 2 F.C. 274; Louhisdon v. Employment and Immigration Canada, 1978 CanLII 3614 (FCA), [1978] 2 F.C. 589; Oloko v. Canada Employment and Immigration, 1978 CanLII 3551 (FCA), [1978] 2 F.C. 593; Murray v. Minister of Employment and Immigration, 1978 CanLII 3639 (FCA), [1979] 1 F.C. 518; Stalony v. Minister of Employment and Immigration (1980), 36 N.R. 609; considered: Laneau v. Rivard, 1977 CanLII 3105 (FC), [1978] 2 F.C. 319; Nesha v. Minister of Employment and Immigration, 1981 CanLII 4670 (FC), [1982] 1 F.C. 42; referred to: Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971), 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40; Pierre v. Minister of Manpower and Immigration, 1978 CanLII 3634 (FCA), [1978] 2 F.C. 849; Tam v. Minister of Employment and Immigration, 1982 CanLII 5218 (FCA), [1983] 2 F.C. 31; Minister of Manpower and Immigration v. Tsakiris, 1977 CanLII 3124 (FCA), [1977] 2 F.C. 236; Lodge v. Minister of Employment and Immigration, 1979 CanLII 4168 (FCA), [1979] 1 F.C. 775; Minister of Employment and Immigration v. Hae Soo Han, 1984 CanLII 5302 (FCA), [1984] 1 F.C. 976.

By L'Heureux-Dubé J. (dissenting)

Ramawad v. Minister of Manpower and Immigration, 1977 CanLII 208 (SCC), [1978] 2 S.C.R. 375; Minister of Employment and Immigration v. Widmont, 1984 CanLII 5368 (FCA), [1984] 2 F.C. 274; Louhisdon v. Employment and Immigration Canada, 1978 CanLII 3614 (FCA), [1978] 2 F.C. 589; Oloko v. Canada Employment and Immigration, 1978 CanLII 3551 (FCA), [1978] 2 F.C. 593; Murray v. Minister of Employment and Immigration, 1978 CanLII 3639 (FCA), [1979] 1 F.C. 518; Laneau v. Rivard, 1977 CanLII 3105 (FC), [1978] 2 F.C. 319; Nesha v. Minister of Employment and Immigration, 1981 CanLII 4670 (FC), [1982] 1 F.C. 42; Jiminez-Perez v. Minister of Employment and Immigration, 1982 CanLII 5299 (FCA), [1983] 1 F.C. 163 (C.A.), aff'd in part on another issue 1984 CanLII 127 (SCC), [1984] 2 S.C.R. 565; Beeston v. Minister of Employment and Immigration (1982), 41 N.R. 260.

Statutes and Regulations Cited

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 [now R.S.C. 1985, c. F-7], s. 28.

Immigration Act, 1976, S.C. 1976-77, c. 52 [now R.S.C. 1985, c. I-2], ss. 27(2)(h), (3), 29(1), (5), 30(1), 31(1), 32(6), 37(1), (2), (4), (6), 43(1), 45(1), 57(1) [rep. & subs. 1984, c. 40, s. 36(4)], 113, 115(2).

Immigration Regulations, 1978, SOR/78-172, s. 35(1).

Authors Cited

Wydrzynski, Christopher James. Canadian Immigration Law and Procedure. Aurora, Ont.: Canada Law Book, 1983.

APPEAL from a judgment of the Federal Court of Appeal, [1985] 1 F.C. D-4, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside a deportation order. Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.

Andrew J. A. McKinley, for the appellant.

H. J. Wruck, for the respondent.

//Sopinka J.//

The judgment of Dickson C.J. and McIntyre, Lamer, La Forest and Sopinka JJ. was delivered by

SOPINKA J. -- The issue in this case is whether the adjudicator of an immigration inquiry must adjourn the inquiry to enable the appellant to pursue an application to the Minister under s. 37(1) of the Immigration Act, 1976, S.C. 1976-77, c. 52 (now R.S.C. 1985, c. I-2), as amended. Here the adjudicator refused to grant the appellant's request for an adjournment. The Federal Court of Appeal dismissed an application under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 (now R.S.C. 1985, c. F-7), as amended, to review and set aside the decision of the adjudicator. The appellant appeals to this Court from that dismissal.

The immigration inquiry before the adjudicator arose out of the following circumstances. The appellant, also known as Sandhya Kishun, is a citizen of Fiji. She is neither a permanent resident nor a citizen of Canada. She originally entered Canada as a visitor in 1975 and continued in that status until a deportation order was made against her on September 15, 1982. She was removed from Canada on June 6, 1984, pursuant to that order.

The appellant's stay in Canada between 1975 and 1982 was authorized by a Minister's permit issued under s. 37(1) of the Immigration Act, 1976. This permit was extended a number of times. Following an immigration inquiry, the deportation order of September 15, 1982, was made pursuant to s. 37(6) of the Act. The appellant had been convicted of a number of criminal offences during her stay in Canada.

On August 17, 1984, the appellant re-entered Canada without having first obtained the written consent of the Minister contrary to s. 57(1) of the Act. She then became subject to a report under s. 27(2)(h) of the Act and was arrested.

On November 2, 1984, an inquiry was commenced under s. 27(3) of the Act. At the hearing, the appellant was ordered released upon the posting of a cash bond, and the inquiry was adjourned to November 21, 1984, to permit counsel for the appellant time to prepare.

When the inquiry reconvened, counsel for the appellant delivered to the adjudicator a copy of a letter, dated November 16, 1984, which had been sent to the respondent. In the letter, the appellant applied to the Minister of Employment and Immigration for a Minister's permit authorizing her to remain in Canada pursuant to s. 37(1)(b) of the Act. She also applied to the Governor in Council for exemption from the Regulations pursuant to s. 115(2) and permission to establish permanent residence in Canada. Officials in the Minister's office indicated that they had not received the letter as of the date upon which the inquiry reconvened.

Counsel for the appellant then requested an adjournment of the inquiry to permit her applications to the Minister and to the Governor in Council to be considered. The adjudicator refused the request and proceeded with the inquiry. At the conclusion of the inquiry a deportation order was made against the appellant pursuant to s. 32(6) of the Act.

On March 5, 1985, the Federal Court of Appeal dismissed the appellant's application under s. 28 of the Federal Court Act to review and set aside the decision of the adjudicator. Thurlow C.J., speaking for the Court, considered the court bound by its consistent previous judgments, including the decision in Minister of Employment and Immigration v. Widmont, 1984 CanLII 5368 (FCA), [1984] 2 F.C. 274 (C.A.) The Court held that the adjudicator did not err in refusing an adjournment of the inquiry to permit the appellant to pursue applications under ss. 37(1) and 115(2) of the Immigration Act, 1976. On July 9, 1985, the Federal Court of Appeal granted the appellant leave to appeal its decision to this Court, 1985 CanLII 5529 (FCA), [1985] 2 F.C. 81.

The resolution of this appeal requires a careful examination of the applicable provisions of the Immigration Act, 1976, and the relevant procedures.

Legislation and Procedures

The following are the relevant provisions of the Immigration Act, 1976:

27. . . .

(2) Where an immigration officer or peace officer has in his possession information indicating that a person in Canada, other than a Canadian citizen or a permanent resident, is a person who

(h) came into Canada contrary to section 57,

he shall forward a written report to the Deputy Minister setting out the details of such information unless that person has been arrested without warrant and held in detention pursuant to section 104.

(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection (1) or (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.

31. (1) An adjudicator shall give his decision as soon as possible after an inquiry has been completed and his decision shall be given in the presence of the person concerned wherever practicable.

32. . . .

(6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), he shall, subject to subsections 45(1) and 47(3), make a deportation order against the person unless, in the case of a person other than a person described in paragraph 19(1)(c), (d), (e), (f), or (g) or 27(2)(c), (h) or (i), he is satisfied that

(a) having regard to all the circumstances of the case, a deportation order ought not to be made against the person, and

(b) the person will leave Canada on or before a date specified by the adjudicator,

in which case he shall issue a departure notice to the person specifying therein the date on or before which the person is required to leave Canada.

37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is

(a) in the case of a person seeking to come into Canada, a member of an inadmissible class, or

(b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2).

(2) Notwithstanding subsection (1), a permit may not be issued to

(a) a person against whom a removal order has been made who has not been removed from Canada pursuant to such an order or has not otherwise left Canada, unless an appeal from that order has been allowed;

(b) a person to whom a departure notice has been issued who has not left Canada; or

(c) a person in Canada with respect to whom an appeal made pursuant to section 79 has been dismissed.

(4) The Minister may at any time, in writing, extend or cancel a permit.

57. (1) Subject to section 58, where a deportation order is made against a person, the person shall not, after he is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister unless an appeal from the order has been allowed.

Section 113 of the Act specifies certain of an adjudicator's powers:

113. An adjudicator has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of an inquiry,

(a) issue a summons to any person requiring him to appear at the time and place mentioned therein to testify with respect to all matters within his knowledge relative to the subject-matter of the inquiry and to bring with him and produce any document, book or paper that he has in his possession or under his control relative to the subject-matter of the inquiry;

(b) administer oaths and examine any person on oath;

(c) issue commissions or requests to take evidence in Canada;

(d) engage the services of such counsel, interpreters, technicians, clerks, stenographers and other persons as he deems necessary for a full and proper inquiry; and

(e) do all other things necessary to provide a full and proper inquiry.

Section 35(1) of the Immigration Regulations, 1978, SOR/78-172, as amended, provides:

35.(1) The adjudicator presiding at an inquiry may adjourn the inquiry at any time for the purpose of ensuring a full and proper inquiry.

The applicable inquiry procedures created by these provisions are as follows. An immigration officer may have information that a person in Canada, other than a Canadian citizen or permanent resident, is a person who falls into any of the categories listed in s. 27(2), including being a person who, having been subject to a deportation order, re-entered Canada without the written consent of the Minister. The immigration officer must forward that information in a report to the Deputy Minister. If the Deputy Minister considers it is warranted, an immigration inquiry shall be held.

The inquiry is held before an adjudicator. The subject of the inquiry is present (s. 29(1)) and is entitled to be represented by legal counsel (s. 30(1)). Upon hearing evidence from both sides, the adjudicator will render a decision. If the adjudicator decides that the subject of the inquiry is a person described in s. 27(2), the adjudicator shall make a deportation order against that person.

Submissions of Counsel

Counsel for the appellant submitted that once an application for adjournment is made to the adjudicator, the adjudicator is obliged to adjourn to enable the applicant to pursue an application to the Minister under s. 37 of the Act. The appellant relies on the decision of this Court in Ramawad v. Minister of Manpower and Immigration, 1977 CanLII 208 (SCC), [1978] 2 S.C.R. 375, and on the fact that an order for deportation forecloses any opportunity to obtain the Minister's permit. Although the same argument was made in relation to an application to the Governor in Council under s. 115(2) of the Act in the Federal Court of Appeal, this argument was expressly abandoned by the appellant in this Court.

Counsel for the respondent submitted that by virtue of s. 35(1) of the Regulations, the adjudicator was obliged to refuse a request for an adjournment. He submitted that an application to the Minister under s. 37 is extraneous to the conduct of a full and proper inquiry under s. 27(3) of the Act. In the alternative, counsel for the respondent submitted that the adjudicator has a discretion to refuse the adjournment.

Powers of the Adjudicator

In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion.

In Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971), 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40, the Ontario Court of Appeal was asked to hold that the Labour Relations Board was obliged to adjourn when its jurisdiction was attacked by a motion for certiorari in the High Court. Arnup J.A., speaking for the Court, stressed that the Board was "master of its own house" (p. 49) and was not required to adjourn when served with a notice of motion for certiorari. The Board was free to adopt such procedures as appeared to it to be just and convenient in the particular circumstances. Arnup J.A. concluded, at p. 50:

. . . it is for the Board itself to decide how it shall proceed. If procedural guide lines of a mandatory nature are to be laid down, they should come from the Legislature and not from the Court.

Jackett C.J., in Pierre v. Minister of Manpower and Immigration, 1978 CanLII 3634 (FCA), [1978] 2 F.C. 849, put it this way, at p. 851:

In considering a complaint that a tribunal has refused to grant an adjournment, it must be remembered that, in the absence of some specific rule governing the manner in which the particular tribunal should exercise its discretion to grant an adjournment, the question as to whether an adjournment should be granted is a discretionary matter for the tribunal itself and that a supervisory tribunal has no jurisdiction to review the tribunal's decision to refuse an adjournment unless the refusal results in the decision made by the tribunal at the termination of the hearing being voidable as having been made without complying with the requirements of natural justice.

The power of an adjudicator to adjourn the proceedings is specifically addressed in s. 35(1) of the Regulations and more generally in s. 113(e) of the Act. The effect of these provisions is to confirm a discretion in the adjudicator, the exercise of which is guided by the general principle that a full and proper inquiry be held. I agree with the statement made by Wydrzynski, in Canadian Immigration Law and Procedure (1983), at p. 265:

The adjudicator is given discretion to determine whether an adjournment shall be granted, but, of course, this discretion is guided by the notion of a "full and proper" inquiry. In other words, the discretion must be exercised in accordance with principles of fairness and natural justice.

The appellant does not argue that the inquiry proceedings violated the principles of natural justice. She argues instead that she has a right to apply to the Minister under s. 37 and therefore the adjudicator is required to grant an adjournment to permit her to do so. Such a result can only obtain if s. 37 or some other provision deprives the adjudicator of the discretionary power to adjourn enjoyed by administrative tribunals and confirmed by s. 113(e) of the Act and s. 35 of the Regulations. In light of the usual practice relating to the power to adjourn which I have outlined above, I would expect to find rather explicit language in the statute or regulation if this result were intended.

There is no doubt that the adjudicator has a discretion to adjourn to permit an application under s. 37(1). (See Tam v. Minister of Employment and Immigration, 1982 CanLII 5218 (FCA), [1983] 2 F.C. 31 (C.A.), and Widmont, supra.) In this regard, I respectfully disagree with the respondent's submission that s. 35(1) of the Regulations obliges the adjudicator to reject an application for an adjournment to permit an application under s. 37(1). The contrary proposition then remains to be addressed: is the adjudicator obliged to grant the application for adjournment in these circumstances?

The cornerstone of the appellant's argument is that once a removal order is made the Minister cannot grant an application under s. 37 and therefore the adjudicator must give the appellant this opportunity. This overstates the consequences of the refusal of an adjournment. The application to the Minister is barred only as long as the removal order remains unexecuted. No doubt removal from the country may make such an application more difficult, but did Parliament intend that this potential difficulty requires that the proceedings before the adjudicator be automatically stayed upon application to the Minister under s. 37?

This relationship between a removal order and a Minister's permit under s. 37(1) was created in the first amendments to the Immigration Act of 1952 (S.C. 1966-67, c. 90, s. 26) and has been continued into the present Act. Parliament amended the Immigration Act of 1952 a number of times prior to repealing it in 1976. Its replacement, the present Immigration Act, 1976, has subsequently been frequently amended. However, in not one of these amendments did Parliament remove the statutory bar which an unexecuted removal order poses to the issuance of a Minister's permit. Neither has Parliament seen fit to require an adjudicator to adjourn an inquiry in this circumstance, nor to empower the Minister to impose a stay of inquiry proceedings upon receipt of an application under s. 37(1).

This may be usefully contrasted with other provisions of the Act which explicitly require an adjournment for specified purposes. The adjudicator shall adjourn the inquiry if: the subject of the inquiry is under eighteen years of age and unrepresented by a parent or guardian (s. 29(5)); the subject of the inquiry who is to be removed from Canada claims, during the inquiry, to be a Canadian citizen (s. 43(1)); or the subject of the inquiry who is to be removed from Canada claims, during the inquiry, to be a Convention refugee (s. 45(1)).

Moreover an adjudicator is not required to adjourn an inquiry to await the outcome of other proceedings taken under the Immigration Act such as an application for sponsorship (see Minister of Manpower and Immigration v. Tsakiris, 1977 CanLII 3124 (FCA), [1977] 2 F.C. 236 (C.A.)) As well, the Federal Court of Appeal has held that an adjudicator is not required to adjourn the inquiry to enable the subject of the inquiry to pursue an application under the Canadian Human Rights Act, S.C. 1976-77, c. 33 (now R.S.C. 1985, c. H-6): Lodge v. Minister of Employment and Immigration, 1979 CanLII 4168 (FCA), [1979] 1 F.C. 775. Likewise, an adjudicator is not required to adjourn the inquiry to enable the subject of the inquiry to apply for Canadian citizenship under the Citizenship Act, S.C. 1974-75-76, c. 108 (now R.S.C. 1985, c. C-29): Minister of Employment and Immigration v. Hae Soo Han, 1984 CanLII 5302 (FCA), [1984] 1 F.C. 976. In Han, a deportation order issued at the close of the inquiry, before the processing of the citizenship application, would have precluded the granting of citizenship to the applicant (p. 981).

The logic of the appellant's submission would thus require that the adjudicator adjourn the inquiry whenever the result of that inquiry has the potential to inhibit the subject of that inquiry from pursuing an alternative remedy. This would amount to reading into the legislation an automatic stay. Absent clear statutory language, it is untenable to hinder the adjudication process under the Immigration Act, 1976, by laying down such an inflexible rule for the conduct of an inquiry.

The appellant's submission, therefore must be rejected unless, as the appellant contends, such a conclusion is preordained by this Court's decision in Ramawad v. Minister of Manpower and Immigration, supra. I now turn to consider that decision and cases in which it has been applied. The appellant bolsters her reliance on Ramawad by reference to its interpretation by the Trial Division of the Federal Court in Laneau v. Rivard, 1977 CanLII 3105 (FC), [1978] 2 F.C. 319, and Nesha v. Minister of Employment and Immigration, 1981 CanLII 4670 (FC), [1982] 1 F.C. 42, and by the minority of the Federal Court of Appeal in Louhisdon v. Employment and Immigration Canada, 1978 CanLII 3614 (FCA), [1978] 2 F.C. 589; Oloko v. Canada Employment and Immigration, 1978 CanLII 3551 (FCA), [1978] 2 F.C. 593, and Widmont, supra. On the other hand, the respondent relies on the consistent interpretation of Ramawad by the majority in the Federal Court of Appeal (see Louhisdon, supra; Oloko, supra; Widmont, supra; Murray v. Minister of Employment and Immigration, 1978 CanLII 3639 (FCA), [1979] 1 F.C. 518, and Stalony v. Minister of Employment and Immigration (1980), 36 N.R. 609). Determining which interpretation can be sustained requires a careful examination of what was actually decided in Ramawad.

Ramawad was decided under the former Immigration Act, R.S.C. 1970, c. I-2. The appellant entered Canada as a non-immigrant under s. 7(1)(h) of that Act. Upon his arrival he was granted an employment visa authorizing him to work for one year as a jeweller for Jolyn Jewellery Products. One of the conditions of the visa was that the appellant obtain further authorization from an immigration officer if he altered his conditions of employment. The appellant was subsequently dismissed by his employer, and took work with another jewellery company. The appellant failed to inform immigration officials of his change in employment; they did not become aware of the change until the appellant applied for an extension of his visa at the end of the one-year authorization. Upon being informed that his visa had expired when he breached its condition, the appellant applied for a new employment visa. The appellant was, at that point, deemed to be seeking entry into Canada. Section 3C(1) of the Immigration Regulations, Part I, SOR/73-20, stated:

3C. (1) Subject to section 3F,

(a) no person may enter Canada as a non-immigrant for the purpose of engaging in employment, and

(b) no person other than

(i) a Canadian citizen,

(ii) a permanent resident, or

(iii) a person authorized to enter Canada under a written permit issued by the Minister pursuant to section 8 of the Act that expressly states that the holder thereof is authorized to engage in employment,

shall engage in employment in Canada, unless he is in possession of a valid employment visa.

A Special Inquiry Officer held an inquiry under s. 23(2) of the Immigration Act. Section 3D(2) of the Regulations required that an issuing officer issue an employment visa on application unless "(b) the applicant has violated the conditions of any employment visa issued to him within the preceding two years". The Special Inquiry Officer determined that the appellant had violated his previous visa by changing employers without authorization, thus he could not be issued an employment visa and could not stay in Canada. The appellant was ordered to be detained and deported.

Just prior to the conclusion of the inquiry, counsel for the appellant sought to invoke the benefit of s. 3G(d) of the Regulations. Section 3G read:

3G. Notwithstanding subparagraph 3D(2)(a)(i) and paragraph 3D(2)(b), an employment visa may be issued

(d) to a person in respect of whom subparagraph 3D(2)(a)(i) and paragraph 3D(2)(b) should not, in the opinion of the Minister, be applied because of the existence of special circumstances.

The Special Inquiry Officer responded at p. 380:

With full respect to counsel, I have carefully considered all the evidence adduced at this inquiry and, in my opinion, there are no special circumstances in existence at the present time in order to apply paragraph 3G(d) of the Immigration Regulations as requested by counsel.

This Court allowed an appeal from a judgment of the Federal Court of Appeal dismissing an application to set aside the deportation order. This Court based its decision on the appellant's first ground of appeal: namely, that the Special Inquiry Officer acted without authority when, in the purported exercise of the Minister's authority, the Special Inquiry Officer decided that the "special circumstances" envisaged in s. 3G(d) did not exist. Pratte J., speaking for the Court, held that the authority of the Minister to consider "special circumstances" under s. 3G(d) had not been implicitly delegated to the Special Inquiry Officer. Usurpation of this authority by the Special Inquiry Officer rendered his decision invalid (p. 382).

The main issue having been decided, Pratte J. then went on to hold that the invalid decision made by the Special Inquiry Officer vitiated the deportation order issued by him. The right of the appellant applying for an employment visa to have the Minister consider "special circumstances" under s. 3G(d) of the Regulations was nullified by the Special Inquiry Officer's improper exercise of the Minister's authority. Pratte J. concluded his discussion of the merits with a broadly-worded final paragraph at p. 384:

In my view, the making of an application seeking the opinion of the Minister pursuant to para. 3G(d) has the effect of suspending the authority of the Special Inquiry Officer to issue a deportation order, and the only possible course of action for the Special Inquiry Officer under such circumstances is to adjourn making his decision until such time as the Minister has disposed of the application.

Ramawad involved provisions of the Act and Regulations specific to an application for an employment visa. The determination of that issue depended on whether there was a violation of a condition of a prior employment visa and whether the violation would be waived by the Minister by reason of special circumstances. This issue could not be finally determined without obtaining the decision of the Minister. Obviously the appellant was entitled to the Minister's decision before this issue was resolved against him. The Special Inquiry Officer failed to consider whether the adjournment was necessary for a full and proper inquiry; he simply decided that there were no special circumstances. In doing so, he usurped the Minister's authority. In these circumstances the determination of the applicant's right to an employment visa gave him the right to have the Minister's decision because that issue was to be determined in part by the Minister. I therefore agree with Pratte J. in Louhisdon, supra, at p. 591, that:

[a]ll that was decided in that case [Ramawad], in my opinion, is that a person who is seeking an employment visa under sections 3B et seq of the Immigration Regulations, Part I, and who requests that his case be submitted to the Minister so that the latter may exercise the power conferred on him by section 3G(d) of the Regulations, may not be deported on the ground that he has no employment visa until the matter has been put before the Minister.

In the present case the application to the Minister under s. 37(1) is not an integral part of the proceedings before the adjudicator under s. 27(3) but a remedy that is clearly separate from that proceeding. The mere fact that there is an alternative remedy open to the appellant does not convert it into an automatic concomitant right to have other proceedings adjourned to accommodate the application. Nothing in s. 37 suggests that an application under that section is to be treated any differently than an application for other remedies which, as I have discussed, have not been accorded the recognition of an automatic stay.

As I have decided that Ramawad, supra, must be read in the context of its facts and the particular employment visa provisions at issue, I need not discuss at length the decisions which have interpreted that decision. I will, however, make a few comments on those decisions which have interpreted Ramawad, supra, as authority for the broad proposition which the appellant puts forth.

In Laneau v. Rivard, supra, Decary J. of the Federal Court Trial Division, was the first to use the decision in Ramawad, supra, to require that an adjournment be granted in order that the subject of the inquiry might pursue her application for a Minister's permit. In Laneau, the applicant met all the requirements of the former Immigration Act until she was forced to stop work as a domestic due to complications in her pregnancy. The applicant's fiancé, a Canadian citizen, did not show up for their wedding. The applicant feared that a deportation order might make it impossible for her to pursue a paternity suit against her former fiancé. Thus, the applicant applied to the Minister for a permit over five months prior to the commencement of the inquiry. The timeliness of the application by the applicant was clearly of importance to Decary J. (at p. 320):

It is important to note that this application was made before the immigration authorities summoned or even communicated with applicant;

The merits of the applicant's case heavily influenced a number of the decisions in which Ramawad, supra, was interpreted broadly. In Nesha v. Minister of Employment and Immigration, supra, the applicant had worked steadily as a housekeeper for the five years since her illegal entry into Canada. She wrote a letter to the Minister requesting special consideration immediately upon her arrest under the Immigration Act, 1976. In that letter, the applicant outlined the threats made against her by her common-law husband in Guyana and her belief that she would be killed by him upon her return to that country. In finding that the adjudicator was required to adjourn the inquiry, Smith D.J. commented at p. 51:

It does not seem just, in any event, that genuine cases, in which the known facts indicate there is sufficient merit to warrant a reasonable hope of success, should be frustrated in advance by the issuing of a deportation order. It is difficult for me to think that Parliament intended such an outcome.

It is not my function to pass an opinion on the present applicant's case. I will only say that if the allegations in her letter to the Minister of July 29, 1980, should be shown to be correct, it is not impossible to think her application might succeed.

This passage was cited by MacGuigan J., in dissent in Minister of Employment and Immigration v. Widmont, supra, and followed by this comment at p. 298:

The merits of the application of the respondent here for a Minister's permit seem equally apparent.

In Widmont, the respondent entered Canada legally from Poland and was unaware of the expiry date on her visitor's visa due to her inability to speak either French or English. The respondent herself approached immigration authorities to clarify her status due to her upcoming marriage to a Canadian citizen. Whatever the comparative circumstances of the present appellant may be, I do not believe that sympathy for the circumstances in which the subject of the inquiry finds himself or herself, is sufficient to transform an adjudicator's discretion to adjourn into a duty to adjourn. No doubt such circumstances are relevant to the exercise of the adjudicator's discretion and they will, where warranted, result in an adjournment. They are not, however, per se, a proper basis for appellate review of the adjudicator's discretion.

I conclude that an adjudicator acting pursuant to s. 27(3) of the Act is neither bound to accede to a request for an adjournment to enable an application under s. 37 to be brought, nor is he or she required to refuse it. Rather the adjudicator has a discretion. In some circumstances, an adjournment may well be granted to enable such an application; in other circumstances, it may properly be refused. While the adjudicator must be cognizant that a "full and proper inquiry" be held, the adjudicator must also ensure that the statutory duty to hold an inquiry is fulfilled. As Wydrzynski, op. cit., notes at p. 266:

Above all, there is a need to proceed expeditiously, and adjournments should not be viewed as a method to interminably delay the inquiry.

The adjudicator might consider such factors as the number of adjournments already granted and the length of time for which an adjournment is sought in exercising his or her discretion to adjourn. Where an adjournment is requested in order that an application under s. 37 might be pursued, the adjudicator might also consider the opportunity available to the subject of the inquiry to apply to the Minister prior to the request for an adjournment. In the present appeal, the appellant could have applied at any time between the date of her removal from Canada on June 6, 1984, and the recommencement of the inquiry on November 21, 1984; she did not send a letter to the Minister's office until November 16, 1984.

For these reasons, I would dismiss the appeal.

\L'Heureux-Dubé J.\

The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by

L'HEUREUX-DUBÉ J. (dissenting) -- The facts, set out in my colleague Justice Sopinka's opinion, are not in issue here. It is not for us to decide whether appellant should be given immigrant status in this country. A single question of law is raised in this appeal: did the adjudicator err in refusing to adjourn the immigration inquiry pending a decision on the application made by the appellant prior to the inquiry pursuant to ss. 37(1) and 115(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52?

These sections confer onto the Minister and Governor in Council special powers to grant, in certain cases, the right to remain in Canada. The relief under s. 37 takes the form of a ministerial permit. That provision reads in relevant part as follows:

37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is

(a) in the case of a person seeking to come into Canada, a member of an inadmissible class, or

(b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2).

(2) Notwithstanding subsection (1), a permit may not be issued to

(a) a person against whom a removal order has been made who has not been removed from Canada pursuant to such an order or has not otherwise left Canada, unless an appeal from that order has been allowed;

(b) a person to whom a departure notice has been issued who has not left Canada; or

(c) a person in Canada with respect to whom an appeal made pursuant to section 79 has been dismissed.

Exemptions may be granted as well by the Governor in Council acting pursuant to s. 115(2) of the Immigration Act, 1976, which provides:

115. . . .

(2) The Governor in Council may by regulation exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Governor in Council is satisfied that the person should be exempted from such regulation or his admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian considerations.

The granting of adjournments by the adjudicator is provided for by s. 35(1) of the Immigration Regulations, 1978, SOR/78-172:

35.(1) The adjudicator presiding at an inquiry may adjourn the inquiry at any time for the purpose of ensuring a full and proper inquiry.

The starting point for the analysis of these statutory provisions is the judgment of this Court in Ramawad v. Minister of Manpower and Immigration, 1977 CanLII 208 (SCC), [1978] 2 S.C.R. 375. The appellant in that case entered the country as a non-immigrant pursuant to s. 7(1)(h) of the old Immigration Act, R.S.C. 1970, c. I-2. Upon his arrival, he was given an employment visa which authorized him to work as a jeweller for Jolyn Jewellery Products. One of the conditions under which the visa was issued was a duty on the appellant to seek further authorization from immigration officials prior to changing his employment. Some time after he had started to work, the appellant was fired by his employer and subsequently found employment with another jewellery company. However, the immigration officers were not informed of this change in the conditions of employment until the appellant applied for an extension of his visa.

This oversight by the appellant caused an inquiry to be held by the Special Inquiry Officer under s. 23(2) of the Immigration Act. Under paragraph 3D(2)(b) of the old Immigration Regulations, Part I, the officer was under a duty to renew an employment visa, unless the applicant had "violated the conditions of any employment visa issued to him within the preceding two years." There was also a discretion conferred by para. 3G(d) of the Immigration Regulations, Part I, to issue an employment visa notwithstanding para. 3D(2)(b):

3G. Notwithstanding . . . paragraph 3D(2)(b), an employment visa may be issued.

(d) a person in respect of whom . . . paragraph 3D(2)(b) should not, in the opinion of the Minister, be applied because of the existence of special circumstances.

Near the conclusion of the inquiry, the appellant's counsel invoked the benefit of para. 3G(d). The Special Inquiry Officer answered that there were no special circumstances in existence at that time to apply para. 3G(d) as requested by counsel. The officer then ordered the appellant to be detained and deported.

This Court allowed an appeal from a judgment of the Federal Court of Appeal dismissing an application under s. 28 of the Federal Court Act to set aside the deportation order. Delivering the reasons for the unanimous Court, Pratte J. held that, as a matter of statutory interpretation, the power to grant relief under para. 3G(d) had not been implicitly delegated by the Minister to the Special Inquiry Officer. Accordingly, the officer's determination that there were no special circumstances to grant the relief was "invalid" (p. 382).

It was further held that the invalidity of the officer's decision vitiated the deportation order. Pratte J. said that para. 3G(d) conferred a "substantive right" onto the appellant which the Special Inquiry Officer had no power to abrogate. Under section 8 of the old Immigration Act, the Minister had no power to issue a permit once a deportation order had been issued. Accordingly, when he dismissed the request for an adjournment and issued a deportation order, the officer "effectively denied the appellant his right to have the Minister decide whether the special circumstances envisaged in para. 3G(d) existed" (p. 383). (Emphasis added.) Pratte J. concluded (at p. 384):

In my view, the making of an application seeking the opinion of the Minister pursuant to para. 3G(d) has the effect of suspending the authority of the Special Inquiry Officer to issue deportation order, and the only possible course of action for the Special Inquiry Officer under such circumstances is to adjourn making his decision until such time as the Minister has disposed of the application. [Emphasis added.]

There is no indication in Ramawad purporting to restrict the application of the judgment to the facts of the case nor to the specific provisions of the old Immigration Regulations, Part I. To the contrary, the reasoning in Ramawad was based on a broad appreciation of the statutory scheme and a purposive interpretation of the ministerial powers of relief. Such considerations appeared to some to be likely to help the disposition of other cases; indeed, one author commented: "The application of the Ramawad decision to the right to apply for a Minister's permit would seem to be obvious" (Wydrzynski, Canadian Immigration Law and Procedure (1983), at p. 352). In Laneau v. Rivard, 1977 CanLII 3105 (FC), [1978] 2 F.C. 319, the Trial Division of the Federal Court applied the Ramawad reasoning to prevent the Special Inquiry Officer from proceeding with an inquiry held under the auspices of the old Immigration Act, on the ground that an application for a Minister's permit had been made before the inquiry was ever begun. As well, Ramawad was applied by the Trial Division of the Federal Court to an inquiry brought about in application of the new Immigration Act, 1976. In Nesha v. Minister of Employment and Immigration, 1981 CanLII 4670 (FC), [1982] 1 F.C. 42, an order was issued to stop a special inquiry initiated by a report made pursuant to s. 27(2) of the Immigration Act, 1976, pending the Minister's consideration of an application for a permit pursuant to s. 37 of the Act which had also been made before the inquiry began.

To others, however, the reasoning in Ramawad could not be applied beyond the facts or statutory background of that case. In Louhisdon v. Employment and Immigration Canada, 1978 CanLII 3614 (FCA), [1978] 2 F.C. 589, a majority of the Federal Court of Appeal (Pratte and Ryan JJ.) decided that a Special Inquiry Officer acting pursuant to the old Immigration Act had not erred in refusing to grant a request to adjourn the making of the deportation order and to refer the matter to the Minister for a decision as to whether a special permit should be issued under s. 8 of the Act. Writing for the majority, Pratte J. found that "[s]ection 8 of the Immigration Act simply gives the Minister the power to grant a permit; it does not create any right in favour of those who might benefit from the exercise of this power" (p. 591). Accordingly, Pratte J. held that the appellant in that case could not complain that the making of the deportation order deprived him of the "option of obtaining a permit".

With respect to the decision of this Court in Ramawad, Pratte J. concluded as follows:

In my view, the decision of the Supreme Court in Ramawad cannot help applicant. All that was decided in that case, in my opinion, is that a person who is seeking an employment visa under sections 3B et seq of the Immigration Regulations, Part I, and who requests that his case be submitted to the Minister so that the latter may exercise the power conferred on him by section 3G(d) of the Regulations, may not be deported on the ground that he had no employment visa until the matter has been put before the Minister.

Ryan J. concurred in the reasons expressed by Pratte J. Le Dain J. (as he then was) dissented for the reasons given in the companion case of Oloko v. Canada Employment and Immigration, 1978 CanLII 3551 (FCA), [1978] 2 F.C. 593.

In Oloko, the Special Inquiry Officer had originally granted an adjournment to allow the applicant to seek a Minister's permit under the authority of s. 8 of the Immigration Act. The permit was refused. When the inquiry resumed, the applicant's wife had just given birth to a premature baby and the applicant once again requested an adjournment in order that these new circumstances be considered by the Minister. The request was denied on the ground that the circumstances which might justify consideration on a humanitarian basis had already been fully considered, and a deportation order was made.

A majority of the Federal Court of Appeal (Pratte and Ryan JJ.) dismissed the subsequent application to quash the deportation order. Delivering the reasons of the majority, Pratte J. simply referred to his reasons in Louhisdon.

Le Dain J. wrote a forceful dissent. Contrary to the majority, he was of the view that the reasoning in Ramawad applied. He said that there was as much of a "substantive right" to obtain a decision under s. 8 of the Immigration Act as there was under para. 3G(d) of the old Immigration Regulations, Part I. Further, as in Ramawad, Le Dain J. expressed the view that it was not open for an immigration official not vested with the Minister's authority to prevent an applicant from having his case considered for a permit. In the circumstances before him, Le Dain J. found that in dismissing the request for an adjournment on the ground that all the facts had already been fully considered in the first application, the Special Inquiry Officer usurped the discretion of the Minister to grant a permit. Le Dain J. added (at pp. 601-2):

In my respectful opinion it is a clear implication of the Ramawad decision that when an application is made in the course of an inquiry for the consideration of a case on a humanitarian basis, in other words, for a Minister's permit, and there has not been a previous refusal to grant such a permit, based on the circumstances existing at the time the application is made, the authority of the Special Inquiry Officer to proceed with the inquiry is suspended until the application has been dealt with.

The majority decisions in Louhisdon and Oloko were approved by the Federal Court of Appeal in Murray v. Minister of Employment and Immigration, 1978 CanLII 3639 (FCA), [1979] 1 F.C. 518 (leave to appeal to this Court refused, January 24, 1979, [1979] 1 S.C.R. x), although in that case, no formal application had been made for a ministerial permit prior to the inquiry.

The Louhisdon, Oloko and Murray decisions were reconsidered by the Federal Court of Appeal in Minister of Employment and Immigration v. Widmont, 1984 CanLII 5368 (FCA), [1984] 2 F.C. 274. In Widmont, the applicant sought an order prohibiting the adjudicator presiding an immigration inquiry from rendering a decision before the disposition of an application for a ministerial permit made in the course of the inquiry. A majority of the Federal Court of Appeal (Urie and Mahoney JJ.) allowed the appeal from the decision of the Trial Division which had granted the order sought. Nevertheless, the Court of Appeal stayed execution of the judgment until the expiration of the time fixed to apply for leave to appeal to this Court, which was never done by the applicant.

In his reasons, Mahoney J. remarked that the Immigration Act, 1976, makes "no express provision for the adjournment of an inquiry to allow the Minister to deal with a request for a permit under subsection 37(1)" (p. 285). By contrast, he noted that there are provisions mandating an adjournment in a number of other circumstances (ss. 29(5), 43(1), 45(1) of the Act, and s. 27(3) of the Immigration Regulations, 1978). Commenting on s. 35(1) of the Regulations, which gives a discretion to adjourn "for the purpose of ensuring a full and proper inquiry", Mahoney J. said (at p. 285):

I think it fair to say that the currently accepted view is that the Minister's consideration of whether to issue a permit under subsection 37(1) has nothing at all to do with ensuring a full and proper inquiry and that, therefore, an adjudicator is not required to adjourn for that purpose.

He then considered the Ramawad case and subsequent interpretation in Louhisdon, Oloko and Murray, and concluded that it had been "consistently held that the refusal of an adjudicator to adjourn an inquiry to allow the person concerned to seek relief under either section 37 or 115 did not vitiate the ensuing deportation order or departure notice" (p. 289). Mahoney J. saw no reason to reverse or distinguish these cases (at p. 292):

The majority and dissenting judgments in Louhisdon leave me in no doubt that the Court there fully considered the issue. It chose to restrict the application of Ramawad to its own facts, rather than to apply its principle more generally. It may have been wrong. If it was it is plainly a situation which Parliament, indeed the Governor in Council, is at liberty to alter and the Supreme Court to correct. Whether it be termed judicial comity or an application of the principle of stare decisis, I consider myself obliged to apply Louhisdon. [Emphasis added.]

Urie J. agreed with these reasons. He wrote additional, concurring reasons, saying that Louhisdon and Oloko were not distinguishable "in any meaningful sense", and found himself unable to say that these cases had been wrongly decided because he was not "satisfied that the Courts in Louhisdon, Oloko and Murray cases and in subsequent appeals which followed those cases, failed properly to distinguish the Ramawad case" (p. 282).

MacGuigan J. wrote a strong dissent. Contrary to the majority, he did not feel bound to apply Louhisdon and Oloko, as he believed his "higher duty [was] surely to apply the law as interpreted by the Supreme Court of Canada" (pp. 295-96). He could not agree with the restrictive interpretation of Ramawad adopted in these cases. He emphasized that an applicant had a right to have a demand under s. 37 of the Immigration Act, 1976, considered by the Minister, and that the applicant should be given a genuine opportunity to exercise that right "before that opportunity is forever foreclosed by an order of deportation issued by a lower-level official" (p. 297). In MacGuigan J.'s opinion, it did not matter whether an application was on its face a meritorious or non-meritorious one for ministerial intervention. The judgment to be exercised pursuant to s. 37 of the Act involved not only humanitarian and compassionate considerations, but political ones as well, and, in MacGuigan J.'s view, such powers of appreciation fell outside the adjudicator's sphere of inquiry. Accordingly, he concluded that "an adjudicator must grant an adjournment in all cases when faced with an application for a Minister's permit under subsection 37(1)" (p. 300). (Emphasis added.)

This Court is now being asked to bring a definitive end to this jurisprudential controversy. It is not without significance that this appeal comes to this Court by way of special leave from the Federal Court of Appeal, 1985 CanLII 5529 (FCA), [1985] 2 F.C. 81.

In her oral pleadings, the appellant abandoned her ground of appeal based on the application pursuant to s. 115(2) of the Immigration Act, 1976. I will accordingly limit my own reasons to the request for an adjournment in the context of an application under s. 37(1) of the Act.

Generally speaking, the statutory regime instituted by the Immigration Act, 1976, is a very rigid one. Persons other than Canadian citizens must comply with the strict conditions and requirements of the legislation. Where there exists information indicating that a non-citizen has failed to act in conformity with the statute or has breached the conditions of his right to remain in the country, immigration officials are empowered to submit a report to the Deputy Minister. The latter may in his discretion cause an immigration inquiry to be held, for the purpose of determining whether the allegations in the report are well-founded. If this is found to be so, the adjudicator presiding the inquiry is under a statutory duty to make a removal order against the person concerned. Visitors and immigrants thus find themselves in a more vulnerable situation under the law than Canadian citizens. In addition to criminal justice which applies to all, improper conduct on the part of non-citizens can result further in their removal from the country.

The purpose of s. 37(1) of the Immigration Act, 1976, is to provide some relief from the harshness of the penalties provided by the statutory scheme. This remedial provision allows the Minister or a person designated by him to override the other provisions of the Act in order to tailor particular solutions to suit the needs of individual cases. It holds out to persons subjected to a pending inquiry that there is for them a possibility to remain in Canada notwithstanding the fact that a technical application of the statute may result in their deportation. As pointed out by Wydrzynski, op. cit., at p. 350, "permits are normally made available in situations of hardship involving humanitarian and compassionate circumstances". In this context, while I think it clear that a person suffering hardship of this kind has no legal right to obtain a permit under s. 37(1) of the Immigration Act, 1976, it appears equally clear to me that such a person has a right in the sense of a legal entitlement to obtain a decision from the Minister as to whether his or her case is deserving of special relief. The Minister has no power to issue a permit to a person against whom a removal order has been made, pursuant to s. 37(2) of the Immigration Act, 1976, although such a person might otherwise be deserving of special consideration. Accordingly, the denial of a request to adjourn the immigration inquiry pending disposition of the application for a Minister's permit generally will constitute the denial of the right to obtain a decision from the Minister as well. In my view, this result could not have been intended by Parliament. Because of the type of persons and situations s. 37 of the Act contemplates, it must rather have been intended that a priority be attached to the processing of an application for a ministerial permit. This point is clearly dealt with by Le Dain J. in his dissenting reasons in Oloko. Speaking with characteristic persuasiveness, he explained (at pp. 600-601):

With great respect I am unable to see how this reasoning [in Ramawad] does not apply to an application in the course of an inquiry that a case be considered for a Minister's permit. There is in my opinion as much of a "substantive right" to obtain a decision as to whether a Minister's permit will be granted in a particular case as there is to obtain the Minister's decision as to whether a failure to comply with the conditions of an employment visa should be waived on the ground of special circumstances. Both decisions are discretionary in nature and a favourable answer may be regarded as a matter of "privilege", but the right in each case is the right to have one's application considered and dealt with, one way or another. The power to issue a Minister's permit was conferred, it seems to me, at least in part for the benefit of persons seeking to enter or to remain in the country and not as a power to be exercised only on the Minister's initiative. I think it must have been intended that it should be possible for a person seeking to enter or remain in the country to apply for a Minister's permit and to receive a decision from the Minister or a person authorized to exercise his authority. I would take the view that a person must not be effectively prevented by action of the immigration authorities from having an application for a Minister's permit considered before it is too late -- that is, before an order of deportation is pronounced against him. It is true that an application for a Minister's permit may be made outside the country before a person seeks admission. There may also be an opportunity for a person who is in the country and who seeks to remain therein to apply for a Minister's permit before deportation proceedings are commenced. But there will often be circumstances in which a person has had no reason to suspect the possible need of a Minister's permit, and for whom the first effective opportunity to apply for such a permit arises in the course of an inquiry. It may not be until the conclusion of an inquiry that a person concerned becomes aware of the need to seek a Minister's permit. It may not be until he sees the nature of the evidence adduced and hears the Special Inquiry Officer's summing up that he realizes that his case is one calling for the humanitarian consideration permitted under section 8 of the Act. [Emphasis added.]

Moreover, the expanding doctrine of administrative fairness strongly militates in favour of ensuring that the inquiry is not held in a way which denies the applicant his entitlement to a decision from the Minister (see, in the context of an Order-in-Council under s. 115(2) of the Immigration Act, 1976, Jiminez-Perez v. Minister of Employment and Immigration, 1982 CanLII 5299 (FCA), [1983] 1 F.C. 163 (C.A.), at p. 171, aff'd in part on another point 1984 CanLII 127 (SCC), [1984] 2 S.C.R. 565).

The language of s. 35(1) of the Immigration Regulations, 1978, must accordingly be interpreted in light of this priority which attaches to applications for a ministerial permit. As a general rule, where an application for a permit is made pursuant to s. 37(1) of the Immigration Act, 1976, the adjudicator must adjourn the immigration inquiry pending the disposition of the applicant's request by the Minister or someone authorized to exercise the Minister's authority. This will be the case where "there has not been a previous refusal to grant such a permit, based on the circumstances existing at the time the application is made" (Oloko, supra, at p. 601, per Le Dain, dissenting). Although the adjudicator has discretion to adjourn by virtue of s. 35(1) of the Immigration Regulations, 1978, where an application under s. 37(1) of the Act is made before a determination is reached on the merits of the immigration inquiry, the adjudicator may exercise this discretion and refuse the adjournment in those cases where doing so will not compromise the applicant's entitlement to a consideration of his case and a decision from the Minister.

The respondent argues that the recognition of such a priority to applications for a ministerial permit would "result in considerable and needless delays" and would ultimately "disrupt and paralyze the conduct of immigration inquiries". In my view there is no merit to this contention. There already are a great number of applications made for ministerial permits at various stages of the immigration process. An administrative structure has been put into place to consider and deal with these applications as efficiently as possible. It appears that the Minister has delegated his authority to issue permits to Managers of Canada Immigration Centres, which speeds up the procedure (see Beeston v. Minister of Employment and Immigration (1982), 41 N.R. 260 (F.C.A.)) In Widmont, supra, at p. 293, Mahoney J. said in this respect: "I cannot conceive that anything should be much easier or inexpensive than for the Minister to so order his bureaucracy that applications under section 37 would routinely be dealt with speedily and with no resulting adverse effect, including undue delay, on the adjudicative process". I share this confidence in the flexibility of the immigration system and would only add that any additional expense which might be required to bring the existing administrative structures in line with Parliament's intention and the requirements of administrative fairness is no extravagant luxury given the need for remedial provisions such as s. 37 in a public service mindful of individual concerns and especially those individuals who are in a more vulnerable position.

For these reasons, I would allow the appeal, set aside the deportation order issued against the appellant and remit the matter in the hands of the adjudicator for a redetermination of the request for an adjournment.

Appeal dismissed, WILSON and L'HEUREUX-DUBÉ JJ. dissenting.

Solicitors for the appellant: Rothe & Co., Vancouver.

Solicitor for the respondent: The Department of Justice, Vancouver.