[1995] 2 F.C. 680
A-500-93
Jiri Bubla (Appellant) (Respondent)
v.
Solicitor General (Respondent) (Applicant)
Indexed as: Canada (Solicitor General) v. Bubla (C.A.)
Court of Appeal, Hugessen, Strayer and Desjardins JJ.A.—Vancouver, March 17; Ottawa, March 31, 1995.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Interpretation of transitional provisions (ss. 109, 110) of S.C. 1992, c. 49 amending Immigration Act — S. 110 not applicable herein — S. 109 applicable but law governing validity of deportation order presumed to be law in force when order issued unless clear intention to contrary in amending Act.
Federal Court jurisdiction — Immigration — No inherent power in one F.C.T.D. judge to review merits of decision of another to grant leave to seek judicial review — As decision on leave to commence application for judicial review not appealable to F.C.A., question thereon should not have been certified and will not be answered.
The appellant, originally from Czechoslovakia, became a permanent resident of Canada in 1986. In 1987, he was convicted in Austria of importing heroin and was sentenced to five years imprisonment there. On March 3, 1992, after an inquiry in Canada under the Immigration Act, an adjudicator ordered the appellant deported pursuant to subsection 32(2) of the Act as a person described in paragraph 27(1)(a) of the Act concerning permanent residents who, if immigrants, would be denied landing as members of the inadmissible class described in paragraph 19(1)(c). An appeal was filed on the same day to the Appeal Division of the Immigration and Refugee Board. Amendments to sections 19 and 27 of the Act came into effect on February 1, 1993, before the appeal was heard. The Appeal Division concluded, on its own initiative, that the substantive law as amended was applicable and that the amendments invalidated the order. The amending Act provided in section 109 that the amendments applied “in respect of every application, proceeding or matter under that Act or … regulations … that is pending or in progress immediately before the coming into force of that provision”. Section 110 provided that the amendments did not apply with respect to “any inquiry or hearing … that was commenced before the coming into force of the amendment”. The Appeal Division came to that conclusion on the basis that the appellant would no longer be a person described in the paragraphs referred to specifically in the deportation order because the paragraphs had been renumbered. That decision was delivered orally on February 2, 1993 but was not signed until February 22, 1993.
On April 3, 1993, the Minister applied for leave to commence an application for judicial review. The Trial Judge granted the application without making any reference to the appellant’s contention that the filing was out of time.
On that issue, the second Trial Judge who heard the application for judicial review concluded that the Judge who granted the application for leave could not have granted the application unless he found special reasons, since it was late-filed. He further found that since the first Judge did grant the application, he must have found special reasons. He did, however, certify a question (question number 2) as to whether a judge dealing with an application for leave can find “special reasons” within the meaning of subsection 82.1(5) to permit late filing, where no application has been filed for an extension of time.
As to what law should have been applied by the Appeal Division, the Trial Judge held that by virtue of section 110 of the amending Act, the law existing prior to the amendments should have been applied. He certified a question (question number 1) as to whether in these circumstances, section 109 should apply as concluded by the Appeal Division, a question which embraces both the relevance of section 109 in this case and its implication if it does apply.
This was an appeal from that decision.
Held, the appeal should be dismissed. Question number 1 was answered in the negative. The Court refused to answer question number 2.
The Trial Judge wrongly concluded that section 110 applied to this matter. The “inquiry” before the Adjudicator was completed on March 3, 1992 with the making of the deportation order, before the amendments came into effect. The “hearing” before the Appeal Division commenced on February 2, 1993, the day after the amendments came into effect. The appeal before the Appeal Division was a proceeding which was pending when the amendments came into effect.
As to the Appeal Division’s finding of invalidity of the deportation order based on a simple renumbering of the applicable sections, subsection 40(2) of the Interpretation Act provided that a reference to an enactment was deemed to be a reference to the enactment as amended.
In considering whether one or more of the 1993 amendments could have a retrospective effect so as to invalidate deportation orders already made, the Appeal Division should have careful regard to the following: (1) section 43 of the Interpretation Act provides that a repeal would not “affect any … obligation or liability … incurred” under the repealed enactment; (2) it is a fundamental principle of law that an appeal body is obliged to determine whether the decision of the body appealed from was correct at the time it was made and in the circumstances under which it was made (see paragraph 70(1)(a) of the Immigration Act). Therefore, section 109 applied to the appeal proceedings before the Appeal Division, but the law governing the validity of the deportation order made on March 3, 1992 must be presumed to be that law in force at that date unless Parliament has clearly indicated a contrary intention in a specific provision of S.C. 1992, c. 49.
Question number 2 should not have been certified and cannot be answered. The second Trial Judge should have refused to deal with the question as to whether the first Trial Judge properly granted leave to seek judicial review. There is no inherent power in one judge to review the merits of a decision of another judge of coordinate jurisdiction. The hearing of an application for judicial review is not an occasion for hearing an appeal from the decision to grant leave to seek that judicial review. Furthermore, the question should not have been certified to the Court of Appeal since section 82.2 provides that no appeal lies to the Court of Appeal from on the Trial Division’s decision on an application for leave to seek judicial review under the Federal Court Act.
The order of the Trial Judge was varied so as to refer the matter back for redetermination on the basis of these reasons.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, ss. 109, 110, 112.
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(c) (as am. by S.C. 1992, c. 49, s. 11), (c.1) (as enacted idem), 27(1)(a) (as enacted idem, s. 16) (a.1)(i) (as am. idem), 32(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 22), 70(1) (as am. idem, s. 18), 82.1(3) (as am. by S.C. 1992, c. 49, s. 73), (5) (as am. idem), 82.2 (as am. idem).
Interpretation Act, R.S.C., 1985, c. I-21, ss. 40(2), 43.
APPEAL from a decison of the Trial Division ([1993] F.C.J. No. 853 (T.D.) (QL)) quashing a decision of the Appeal Division, Immigration and Refugee Board ([1993] I.A.D.D. No. 18 (I.R.B.) (QL), sub nom. Bubla v. Canada (Minister of Employment and Immigration)) quashing a removal order against the appellant.
COUNSEL:
Dennis G. McCrea for appellant (respondent).
Leigh A. Taylor for respondent (applicant).
SOLICITORS:
McCrea & Associates, Vancouver, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Strayer J.A.:
Decision Appealed From
This is an appeal from a decision of the Trial Division [[1993] F.C.J. No. 853 (QL)] in which the learned Trial Judge quashed the decision of the Appeal Division, Immigration and Refugee Board, signed February 22, 1993 [[1993] I.A.D.D. No. 18 (QL)] which decision had quashed a removal order against the appellant dated March 3, 1992. The learned Trial Judge referred the matter back to the Appeal Division for rehearing and redetermination:
… in the light of the substantive provisions of the Immigration Act as they read on the 3rd day of March, 1992 ….
The learned Trial Judge also certified the following questions [at pages 13-14]:
1. Does section 109 of S.C. 1992, c. 49 apply as concluded by the Appeal Division of the Immigration and Refugee Board in the circumstances that were before it and before the Federal Court—Trial Division on this application for judicial review and in analogous circumstances?
2. Can a judge of the Federal Court—Trial Division find “special reasons” within the meaning of subsection 82.1(5) of the Immigration Act in the absence of a motion for leave to file late an application for judicial review in support of which special reasons are alleged?
Facts
The appellant, originally from Czechoslovakia, became a permanent resident of Canada on February 24, 1986. According to the decision of the Appeal Division of the Board, the appellant was convicted in Austria on November 24, 1987 for importing heroin and was sentenced to five years imprisonment there. Subsequently he was brought before an adjudicator for an inquiry under the Immigration Act [R.S.C., 1985, c. I-2]. On March 3, 1992 the Adjudicator ordered the appellant deported pursuant to subsection 32(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11] of the Act, his order stating the reasons as follows:
… BECAUSE YOU ARE A PERSON DESCRIBED in paragraph 27(1)(a) of the Immigration Act, as you are a permanent resident who, if you were an immigrant, would not be granted landing by reason of being a member of the inadmissible class described in paragraph 19(1)(c) of the Act, in that you have been convicted of an offence outside Canada that constitutes an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed.
The same day the appellant filed an appeal of the Adjudicator’s decision to the Appeal Division of the Immigration and Refugee Board pursuant to subsection 70(1) [as am. idem, s. 18] of the Act.
At the time of the making of the deportation order, the provisions referred to in it read as follows:
19. (1) No person shall be granted admission who is a member of any of the following classes:
…
(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence.
…
27. (1) Where an immigration officer or a peace officer is in possession of information indicating that a permanent resident is a person who
(a) if that person were an immigrant, would not be granted landing by reason of his being a member of an inadmissible class described in paragraph 19(1)(c), (d), (e) or (g) or in paragraph 19(2)(a) due to his having been convicted of an offence before having been granted landing,
…
the immigration officer or peace officer shall forward a written report to the Deputy Minister setting out the details of such information.
Before the appeal launched by the appellant on March 3, 1992 was heard by the Appeal Division, several amendments to the Immigration Act were brought into force on February 1, 1993.[1] The above provisions were changed as follows:
19. (1) No person shall be granted admission who is a member of any of the following classes:
…
(c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more;
(c.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more … .
…
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(a) is a member of an inadmissible class described in paragraph 19(1)(c.2), (d), (e), (f), (g), (k) or (l);
(a.1) outside Canada,
(i) has been convicted of an offence that, if committed in Canada, constitutes an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more ….
The amending legislation also contained the following provisions.
109. Subject to sections 110 to 120, every provision of the Immigration Act as enacted by this Act shall, on the coming into force of that provision, apply in respect of every application, proceeding or matter under that Act or the regulations made thereunder that is pending or in progress immediately before the coming into force of that provision.
110. Any inquiry or hearing under any provision of the Immigration Act amended or repealed by this Act that was commenced before the coming into force of the amendment or repeal shall continue to a determination as though that provision had not been amended or repealed.
…
112. Notwithstanding section 110,
…
(b) any order, including any removal order or conditional deportation order, made as a result of any inquiry or hearing referred to in that section shall be made on the basis of the provisions of the Immigration Act in force on the day the order is made.
The actual sitting of the Appeal Division on the appeal commenced on February 2, 1993, the day after these amendments came into force. It appears that both parties took the position there that the substantive law as it existed at the date of the making of the deportation order should still apply for the disposition of the appeal. The Appeal Division, however, on its own initiative, concluded that the substantive law as amended should apply to determine the validity of the deportation order and that such amendments invalidated the order. The Appeal Division apparently came to this conclusion on the basis that section 110 did not apply to the situation since the “hearing” before the Appeal Division did not commence until after the law was amended. Therefore the matter was not excepted from the general provisions of section 109 which provides that in any “proceeding” which is “pending” before the coming into force “every provision” of the amendments should apply. The Appeal Division then stated [at page 23]:
If the Appeal Division is to apply the amendments made by S.C. 1992, c. 49 to the removal order against the appellant, the removal order clearly does not have any foundation. The Appeal Division therefore finds that the appellant is not a person described in paragraphs 27(1)(a) and 19(1)(c) of the Immigration Act as amended by S.C. 1992, c. 49. As a result, the removal order is invalid in law.
As nearly as I can ascertain, the surprising rationale of this conclusion is that the deportation order issued on March 3, 1992 refers to the appellant as a [at page 4]:
… PERSON DESCRIBED IN paragraph 27(1)(a) of the Immigration Act… being a member of the inadmissible class described in paragraph 19(1)(c) of the Act ….
but as a result of the amendments, the relevant provisions allegedly descriptive of the appellant would now be subparagraphs 19(1)(c.1)(i) and 27(1)(a.1)(i). Therefore according to this remarkable reasoning of the Appeal Division the appellant would no longer be a person described in the paragraphs referred to specifically in the deportation order.
This decision of the Appeal Division was apparently pronounced orally on February 2, 1993 but was not signed until February 22, 1993. On April 8, 1993 the Minister filed an application for leave and for judicial review. In his submissions on the application for leave the present appellant Bubla contended that the filing was out of time because subsection 82.1(3) [as am. by S.C. 1992, c. 49, s. 73] requires that such an application be filed and served within fifteen days from the date the applicant for judicial review was notified of the decision or order whose review is sought. The Minister as applicant took the position that the time started to run on February 22, 1993, the date when the order was signed whereas the present appellant Bubla took the position that the time started to run on February 2, 1993 when the decision of the Appeal Division was announced orally. MacKay J. granted the application for leave on June 8, 1993 without making any reference to the question of delay.
Before the second Trial Judge who subsequently heard the application for judicial review the appellant Bubla argued that the application should not proceed because leave had not been properly granted. He so argued on the ground that MacKay J. had not indicated in his order that he had either found for the Minister on the question of the counting of the time or that he had found against the Minister on that issue but nevertheless granted an extension of time. The Trial Judge entertained this argument and held as follows:
The judge who granted the application for leave could not have granted the application unless he found special reasons, since, in my view at least, it was clearly late-filed. He did grant the application for leave. I therefore conclude that he found special reasons.[2]
While therefore finding against Bubla on the question of delay he did certify question number 2, quoted above, as to whether a judge dealing with an application for leave can find “special reasons” within the meaning of subsection 82.1(5) [as am. idem] to permit late filing, where no application has been filed for an extension of time.
With respect to the substantive question as to what law should have been applied by the Appeal Division to the determination of the appeal, the learned Trial Judge held that by virtue of section 110 of the transitional provisions, quoted above, the law existing prior to the amendments should have been applied. He came to this conclusion on the basis that the “inquiry”, commenced before the Adjudicator, had not yet been “determined” because the decision flowing from it was under appeal and the appeal thus fell within section 110. He therefore quashed the decision of the Appeal Division on the basis that it had wrongly had resort to section 109. Having concluded this he obviously did not find it necessary to consider the implications which the Appeal Division had attached to the application of section 109. Again while finding against the appellant and quashing the decision of the Appeal Division he certified question 1, as quoted above as to whether in these circumstances section 109 should “apply as concluded by the Appeal Division”, a question which embraces both the relevance of section 109 to this case and its implications if it does apply.
Analysis
It therefore remains to answer the two questions which will be addressed in the order in which they were asked.
Question 1
Does section 109 of S.C. 1992, c. 49 apply as concluded by the Appeal Division of the Immigration and Refugee Board in the circumstances that were before it and before the Federal Court — Trial Division on this application for judicial review and in analogous circumstances?
In my view the learned Trial Judge wrongly concluded that section 110 applies to this matter. It appears to me that in this context the term “inquiry” must be taken to refer to the inquiry before the Adjudicator which was completed on March 3, 1992 with the making of the deportation order against the appellant. Further, the reference to “hearing” in section 110 must I think be taken to refer to the actual sitting of the Appeal Division at which oral evidence and argument were presented to the Board commencing on February 2, 1993, the day after the amendments came into effect. Therefore the situation did not fall within the special provisions of section 110 which make an exception to the general provisions of section 109. Section 109 applies, inter alia, to:
… every … proceeding … that is pending or in progress immediately before the coming into force of [the amendments].
The appeal which was launched on March 3, 1992 and was heard commencing February 2, 1993 must be taken to be a proceeding which was pending on February 1, 1993 when the amendments came into effect. Therefore section 109 does make the amendments applicable to that proceeding.
The important question is, however, as to how if at all those amendments by their own terms affect the appeal proceeding.
I must first reject the absurd conclusion of the Appeal Division that the deportation order had to be treated as invalid because between the time of its issue and the time of the hearing of the appeal the section numbers had been changed so that the references to section numbers in the deportation order no longer referred to relevant provisions of the Immigration Act. The simple answer to this startling proposition is of course subsection 40(2) of the Interpretation Act[3] which provides as follows:
40. …
(2) A citation of or reference to an enactment is deemed to be a citation of or reference to the enactment as amended.
It is inconceivable that Parliament intended by section 109 to override this normal rule of interpretation so as to invalidate any deportation or other order which might refer to a section number where that section has been renumbered by the 1993 amendments. It is not surprising that neither party took such a position before the Appeal Division.
It is conceivable that Parliament did intend one or more of the 1993 amendments to have retrospective effect so as to invalidate deportation orders already made. That is a possibility which the Appeal Division may have to consider on rehearing this matter, if so argued. No such amendment was brought to our attention. In considering whether any of the amendments might have this effect the Appeal Division must have careful regard to rules of statutory interpretation. The normal rules as to the effect of the repeal of an enactment are set out in part as follows in section 43 of the Interpretation Act.[4]
43. Where an enactment is repealed in whole or in part, the repeal does not
…
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed.
Paragraph 43(c) is particularly pertinent in providing that a repeal would not “affect any … obligation or liability … incurred” under the repealed enactment. In the present case this would mean that the validity of the deportation order, if properly made under the law as it stood on March 3, 1992, would not, unless a contrary intention is clearly expressed by Parliament, be affected by subsequent changes in the Immigration Act.
It is also a fundamental principle of law that an appeal body, unless clearly empowered otherwise, is obliged to determine whether the decision of the body appealed from was correct at the time it was made and in the circumstances under which it was made. The authority of the Appeal Division both before and after these amendments is set out in subsection 70(1) of the Immigration Act as follows:
70. (1) Subject to subsection (4), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
It will be noted that under paragraph 70(1)(a) the Appeal Division may on an appeal consider questions of law or fact, or mixed law and fact. This means that the Appeal Division may, inter alia, consider the correctness in law of the decision to issue a deportation order, but clearly that involves examining the law as it stood at the time the deportation order was made. It is true that under paragraph 70(1)(b) the Appeal Division can consider “all the circumstances of the case” to see if the person should be removed from Canada. This obviously may include factors not before the Adjudicator on the inquiry. But the Appeal Division in the present case never directed its mind to its jurisdiction under paragraph 70(1)(b), because it treated the deportation order as in effect being wrong in law. The latter finding was based, not on the correctness of the deportation order at the time it was made, but on the law as it existed after February 1, 1993. The jurisdiction of the Appeal Division remains exactly as it was before, and that jurisdiction is to determine the correctness in law of a decision already taken by the Adjudicator. Such correctness must be measured by the law in force at the time the Adjudicator decided unless Parliament has clearly indicated otherwise.
Therefore for somewhat different reasons I agree with the principal result reached by the learned Trial Judge, namely that this matter should be referred back to the Appeal Division. However I would restate the reference to be:
“for rehearing and redetermination on the basis that section 109 of S.C. 1992, c. 49 applies to the appeal proceedings, the effect of that section to be interpreted in accordance with these reasons”.
Similarly I would answer question number 1 in the negative as follows:
Yes, section 109 applies to the appeal proceedings before the Appeal Division, but the law governing the validity of the deportation order made on March 3, 1992 must be presumed to be that law in force at that date unless Parliament has clearly indicated a contrary intention in a specific provision of S.C. 1992, c. 49.
Question 2
Can a judge of the Federal Court—Trial Division find “special reasons” within the meaning of subsection 82.1(5) of the Immigration Act in the absence of a motion for leave to file late an application for judicial review in support of which special reasons are alleged?
This question should not have been certified and cannot be answered. Although the learned Trial Judge at the judicial review hearing was obviously invited by counsel, at some length, to decide whether MacKay J. had properly granted leave to seek this judicial review, in my respectful view he should have refused to deal with that matter. There is no inherent power in one judge to review the merits of a decision of another judge of coordinate jurisdiction. Nor is the decision of a superior court judge open to review in collateral proceedings. While it may be open to the judge who disposes of an application for leave to reconsider the matter himself in certain limited circumstances, it is not open to another judge to sit on appeal from that decision. The hearing of an application for judicial review is not an occasion for hearing an appeal from the decision to grant leave to seek that judicial review. Therefore the learned Trial Judge should have declined to deal with the attack by Bubla’s counsel on the validity of the order of MacKay J. granting leave.
Further, this question should not have been certified to the Court of Appeal. The Immigration Act provides as follows [section 82.2 (as am. by S.C. 1992, c. 49, s. 73]:
82.2 No appeal lies to the Federal Court of Appeal from a judgment of the Federal Court—Trial Division on an application under section 82.1 for leave to commence an application for judicial review under the Federal Court Act.
Question 2 as certified is in effect an appeal to this Court of MacKay J.’s judgment granting leave. This Court therefore must refuse to answer the question.
Conclusions
The appeal is therefore dismissed. The order of the learned Trial Judge is varied so as to refer the matter back for redetermination on the basis of the present reasons. Question 1 is answered as indicated above and no answer is given to question 2.
Hugessen J.A.: I agree.
Desjardins J.A.: I agree.