Judgments

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A-33-74
In the matter of the Immigration Act and in the matter of Malcolm Lee Morrison
Court of Appeal, Jackett C.J., Pratte J. and Sheppard D.J.—Vancouver, June 11 and 12, 1974.
Judicial review—Immigration—Temporary admission to Canada as a visitor—Remaining after expiry of period for visit Application for employment visa—Found to lack documents and good faith in application —Deportation order upheld—Immigration Act, R.S.C. 1970, c. I-2 ss. 2, 5-7, 18, 19, 22, 23, 27, 35, 57(c); (amen. S.C. 1973-74, c. 28, s. 1) and Immigration Regulations 3A, 28—Federal Court Act, s. 28.
Without having Canadian citizenship or domicile and without having documents under the Immigration Act and Immigration Regulations, the applicant caused or permitted the immigration officer at the border to think that he was entering as a visitor, for business or recreation, and was allowed entry in April 1973. In August, the applicant visited an immigration officer with reference to an employment visa. In October, the applicant was interviewed by another immigration officer, whose report to a Special Inquiry Offi cer led to an inquiry and an order for deportation. The applicant moved to set aside the order, under section 28 of the Federal Court Act.
Held, dismissing the application, the applicant, having obtained entry as a visitor under section 7(1Xc) and (h) of the Immigration Act, allowed the maximum visiting period, under section 3A of the Regulations, of three months to elapse before his partial disclosures to an immigration offi cer in seeking an employment visa. From that time, the applicant was deemed to be "a person seeking admission to Canada" within section 7(3), bringing into play sections 22 and 23 and leading to the subsequent order. The Special Inquiry Officer's finding under section 5(p) that the appli cant was not a bona fide non-immigrant was supported by the evidence and involved no error in law. The finding that the applicant lacked the documentation required by the section 28 of the Immigration Regulations, was also justi fied. The officer's conduct of the inquiry afforded no basis for attack.
Podlaszecka v. Minister of Manpower and Immigration [1972] S.C.R. 733, distinguished; The King v. Dominion Bridge Company Limited [1940] S.C.R. 487, considered.
APPLICATION. COUNSEL:
Gerald G. Goldstein for applicant. G. C. Carruthers for respondent.
SOLICITORS:
John R. Taylor & Associates, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered orally in English by
JAcKETT C.J.: This is a section 28 application to set aside a deportation order made against the applicant by a Special Inquiry Officer under section 27(3) of the Immigration Act.
The material facts, as they appear from the evidence placed before the Special Inquiry Offi cer, are as follows:
1. The applicant came into Canada on April 25, 1973, intending to reside permanently in Canada.
2. Prior to coming into Canada, the applicant had received no visa, letter of pre-examina tion or other document conferring status under the Immigration Act, but he was allowed by the Immigration Officer at the border to come into Canada because he caused or permitted that officer to think that he was coming into Canada as a visitor for business or recreational purposes.
3. On August 16, 1973, after having been in Canada for more than three months, the appli cant visited an Immigration Officer, who became aware that the applicant had come into Canada as a visitor and had stayed for more than three months without any grant of further status under the Immigration Act and who informed the applicant, in effect, that, if he would bring in appropriate documentary evidence of his situation in Canada, consider ation would be given to granting him an employment visa, sometimes referred to as a work permit.
4. The applicant did not return for a further interview with an Immigration Officer until October 25, 1973, when he was interviewed by a second Immigration Officer to whom the relevant departmental file had been trans-
ferred. As a result of that interview, the second Immigration Officer made a report, expressed to be a report under section 22 of the Immigration Act, which, as amended on November 7, 1973, reads as follows:
1. Malcolm Lee Morrison entered Canada as a non- immigrant at Douglas, B.C. on 25 April, 1973, 7(1Xc) for a period of six months. He has now reported to the undersigned in accordance with subsection 7(3) of the Immigration Act and is seeking admission to Canada as a non-immigrant.
2. Pursuant to Section 22 of the Immigration Act I have to report that I have interviewed and examined Mal- colm Lee Morrison and, in my opinion, he is not a Canadian citizen or a person who has acquired Canadi- an domicile.
3. I am also of the opinion that it would be contrary to the Immigration Act and Regulations to grant him admission to Canada as a non-immigrant because
(a) he is a member of the prohibited class of person described in paragraph (p) of Section 5 of the Immi gration Act in that, in my opinion he is not a bona fide non-immigrant because
(i) he seeks admission to Canada to avoid prosecu tion on two criminal indictments presently out standing in the U.S.A., namely:
1. Inter-State transportation of three United States Treasury bills valued at one hundred thou sand dollars each.
2. Inter-State transportation of a number of United States Stock Certificates in excess of five thousand dollars
knowing both to have been stolen.
5. On November 15, 1973, a Special Inquiry Officer commenced an inquiry under the pur ported authority of section 23 of the Immigra tion Act and that Inquiry proceeded, with adjournments from time to time, until January 24, 1974, when it terminated with the Special Inquiry Officer making the deportation order that is the subject matter of this section 28 application. That deportation order reads as follows:
... On the basis of the evidence adduced at the Inquiry held at the Canada Immigration Centre on the 15th November 1973, 7th, 13th, 14th and 20th December 1973, 3rd, 11th, 16th, 18th and 24th of January 1974, I have reached the decision that you may not come into or remain in Canada as of right in that:
(i) you are not a Canadian citizen,
(ii) you are not a person having Canadian domicile,
(iii) you are a member of a prohibited class•of per sons described in paragraph 5(p) of the Immigration Act in that in my opinion you are not a bona fide non-immigrant because you are an immigrant,
(iv) you are a member of a prohibited class of per sons described in paragraph 5(t) of the Immigration Act in that you do not comply with the requirements of the Immigration Regulations Part I by reason of the fact that you are not in possession of a letter of pre-examination in the form prescribed by the Minis ter as required by subsection 28(2) of the Immigra tion Regulations, Part I.
I HEREBY ORDER THAT YOU BE DETAINED AND BE DEPORTED.
6. Not only was no visa or other document conferring status issued to the applicant under the Immigration Act before he came to Canada, but no such document was issued to him after he came to Canada.
On the facts as they were established by the Inquiry before the Special Inquiry Officer it would seem, on first view,
(a) that the applicant should not, if he had divulged the facts to the Immigration Officer at the border, have been admitted to Canada in April, 1973, and
(b) that, once he came into Canada, he was subject to deportation.
The prohibition against the applicant's admis sion to Canada, if he had told the truth to the Immigration Officer, is found in section 5(t) of the Immigration Act, which prohibits admission to Canada of any person who does not comply with, inter alia, any of the requirements of the Regulations, and Regulation 28, 1 which requires every "immigrant" 2 who seeks to land 3 in Canada to have a valid and subsisting immigrant
Regulation 28 is made under section 57(c) of the Immi gration Act.
2 `immigrant" is defined by section 2 of the Act to be a person who seeks admission to Canada for permanent residence.
"landing" is defined by section 2 of the Act to mean the lawful admission of an immigrant to Canada for permanent residence.
visa or letter of pre-examination. 4 (See Regula tion 28(1) and (2).) The applicant came into Canada intending to reside permanently in Canada. It follows, it would seem, that he should have been treated when he came into Canada as a person seeking to "land", and, as he had at that time no subsisting immigrant visa or letter of pre-examination, he did not comply with Regulation 28, and his admission was pro hibited by section 5(t).
The authority for the applicant's deportation once he was in Canada is to be found in section 18(1) of the Immigration Act, which imposes a duty on inter alia an immigration officer who has knowledge thereof to send a written report to the Director of the Immigration Branch of the Department of Manpower and Immigration, or to a person authorized to act for the Director, concerning inter alia any person (other than a Canadian citizen or a person with Canadian domicile) who
(a) was a member of a prohibited class at the time of his admission to Canada (paragraph (e)(iv)),
(b) entered Canada as a non-immigrant and remains after ceasing to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant (paragraph (e)(vi)), or
(c) came into Canada by reason of misleading information (paragraph (e)(viii)),
and section 18(2), which provides that a person who is found upon an inquiry duly held by a Special Inquiry Officer to be such a person is subject to deportation. 5
* I do not mean to say that a person planning to come to Canada cannot, while his application for landing is under consideration, pay a visit to Canada. A visit to attend a funeral in Canada is an obvious example. Here, however, it would appear that the applicant planned a permanent move and made a permanent move. The stories about visits were for immigration purposes only.
I am not saying that proceedings should have been commenced under section 18. As far as I know, it may not have been evident to the Immigration Officers that the applicant was an "immigrant" until after the Inquiry. It nowhere appears that the applicant told them that he had come to Canada for permanent residence.
The only real difficulty that I encounter in this matter arises from the fact that the steps leading up to the Inquiry did not purport to have been taken under section 18, and the fact that the deportation order was framed as though the applicant was seeking admission to Canada, which, in fact, he was not, and was not framed as though he was a person in Canada and sub ject to deportation, which, in fact, he was.
What has to be decided, in that connection, is whether section 7(3) of the Immigration Act is sufficient authority, on the facts of this matter, for the proceedings that were taken and the form of the deportation order, and, if that ques tion is decided in the negative and section 7(3) is not sufficient authority, whether the irregularities of procedure and form invalidate the deportation order even though the applicant was subject to deportation at the time that the deportation order was made.
Section 7(3) of the Immigration Act' reads as follows:
(3) Where any person who entered Canada as a non-immi grant ceases to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant and, in either case, remains in Canada, he shall forthwith report such facts to the nearest immigration officer and present himself for examination at such place and time as he may be directed and shall, for the purposes of the examination and all other purposes under this Act, be deemed to be a person seeking admission to Canada.
The situation in so far as section 7(3) is concerned must be ascertained by considering what happened in fact in relation to the relevant provisions of the statute and of the Regulations.
When the applicant crossed the border into Canada in April, 1973, he was examined by an Immigration Officer under section 19 of the Act, 6 and, as a result of that examination, the Immigration Officer let him "come into Cana-
6 Section 19(3) reads as follows:
(3) Unless the examining immigration officer is of opin ion that it would or may be contrary to a provision of this Act or the regulations to grant admission to or otherwise let a person examined by him come into Canada, he shall, after such examination, immediately grant admission to or let such person come into Canada.
da" as a "visitor" under section 7(1)(c) or as a business man under section 7(1)(h) of the Act, which provisions authorize inter alia "visitors" and "persons engaged in a legitimate ... trade ... entering Canada ... for the temporary exer cise of their ... callings" to be allowed to enter Canada "as non-immigrants". The applicant, not having been issued any document when he was so admitted, must have been admitted for three months or less .' The applicant was, therefore, immediately after he came into Canada, in April, 1973, a person who had entered Canada as a non-immigrant as a visitor or business man for a period of no more than three months, a period that would expire, at the latest, in July, 1973. 8
7 This follows from regulations adopted in December, 1972, the relevant parts of which read as follows:
3A. (1) Every person who seeks to enter Canada as a non-immigrant for a limited time longer than three months, othèr than as a member of a class of non-immi grants described in paragraph 7(1)(a) or (b) of the Act, shall make application to an immigration officer at the port of entry on a prescribed form for registration as a non-immigrant, and if, after examination by an immigra tion officer, he is granted entry for a limited time longer than three months, his entry shall be registered by the immigration officer on a prescribed form.
(5) Where an immigration officer registers the entry of a person as a non-immigrant on a form pursuant to subsection (1), (2) or (3), he shall complete that form in triplicate and
(a) give one copy thereof to the person whose entry as a non-immigrant is registered thereon;
(6) Where a person is granted entry as a non-immigrant and his entry
(a) is registered pursuant to this section, the purpose and the limited time for which that person is granted entry are the purpose and the limited time shown on the copy of the form referred to in paragraph (5)(6); or
(b) is not registered pursuant to subsection (1), (2) or (3), he shall, unless he was granted entry as a member of a class of non-immigrants described in paragraph 7(1)(a) or (b) of the Act, be deemed to have been granted entry for a limited time of not more than three months.
8 There was no suggestion anywhere during the Inquiry that this period was extended at any time before it expired.
At all times from August 16, 1973, when the applicant had an interview with an Immigration Officer during which he made his situation par tially known, until the opening of the Inquiry, the situation was as follows:
(a) the applicant was a person who had entered Canada as a non-immigrant of a par ticular class, namely, as a visitor or business man for a period of not more than three months, which period had expired;
(b) as the period for which the applicant had entered as a visitor or business man had expired, the applicant had "ceased ... to be in the particular class in which he was admit ted as a non-immigrant"; and
(c) the applicant had reported the facts estab lishing the situation set out in paragraphs (a) and (b) to the Immigration Officer as required by section 7(3) of the Immigration Act.
It follows that, from August 16, 1973, until the opening of the Inquiry, the applicant was, by virtue of section 7(3), deemed to be a person seeking admission to Canada. 9
' Two notes should be inserted here:
(a) As the applicant was, on the occasion of the August visit, deemed to be a person seeking admission to Canada, and as no document had been issued to him in connection with his immigrant status, the suggestion, which was made during the Inquiry on behalf of the applicant, that the Immigration Officer verbally granted him an employment visa on that occasion, must be rejected. This appears from subsections (2) and (5) of section 3A of the Regulations adopted in December, 1972. Those provisions read as follows:
3A. (2) Where a person who entered Canada as a non-immigrant reports to an immigration officer in accordance with subsection 7(3) of the Act and again seeks entry as a non-immigrant, the immigration officer who examines that person shall, if he grants entry to him, register the entry of that person on a prescribed form.
(5) Where an immigration officer registers the entry of a person as a non-immigrant on a form pursuant to subsection (1), (2) or (3), he shall complete that form in triplicate and
The effect, from a procedural point of view, of the applicant having been deemed to be a person seeking admission to Canada was to bring into play sections 22 and 23 of the Immi gration Act, which read as follows:
22. Where an immigration officer, after examination of a person seeking to come into Canada, is of opinion that it would or may be contrary to a provision of this Act or the regulations to grant admission to or otherwise let such person come into Canada, he may cause such person to be detained and shall report him to a Special Inquiry Officer.
23. (1) Where the Special Inquiry Officer receives a report under section 22 concerning a person who seeks to come into Canada from the United States or St. Pierre and Mique- lon, he shall, after such further examination as he may deem necessary and subject to any regulations made in that behalf, admit such person or let him come into Canada or make a deportation order against such person, and in the latter case such person shall be returned as soon as practi cable to the place whence he came to Canada.
(2) Where the Special Inquiry Officer receives a report under section 22 concerning a person, other than a person referred to in subsection (1), he shall admit him or let him come into Canada or may cause such person to be detained for an immediate inquiry under this Act.
When the Immigration Officer who interviewed the applicant on October 25, 1973, became aware of the facts that brought section 7(3) into play, he was required to treat the applicant as though he were "a person seeking admission to Canada". When, therefore, he formed the opin ion that it would be contrary to the Immigration Act to let the applicant "come into Canada", he was required, by section 22, to report him to a
(a) give one copy thereof to the person whose entry as a non-immigrant is registered thereon;
(b) The application of section 7(3) of the Immigration Act' to these facts is based on the view that, when section 7(3) speaks of the "particular class in which he was admitted as a non-immigrant", the "limited time" for which he was admitted enters into the definition of the "class" as opposed to the view that the section refers only to the classes enumerated in section 7(1), which latter view is the view suggested by a superficial reading of section 7(1) and (3). I have adopted this view because the definition of "entry" in section 2 clearly indicates that a non-immigrant is to be admitted not only for "a special or temporary purpose" but is also to be admitted for "a limited time" and because the machinery of the Act would be useless to enforce the limitations on time unless such a limitation enters into the definition of a "particular class" for the purposes of section 7(3).
Special Inquiry Officer. As already indicated, this is what he did.
Applying section 23(2), the Special Inquiry Officer, having decided not to admit the appli cant or let him come into Canada, was required to cause him to be detained for an immediate inquiry and it appears that this is what he did.'°
Having concluded that the Inquiry was duly authorized by virtue of section 7(3), I turn now to the substance of the deportation order.
The Special Inquiry Officer's duty, at the conclusion of the hearing of the Inquiry, was defined by section 27 of the Immigration Act, which reads, in part, as follows:
27. (1) At the conclusion of the hearing of an inquiry, the Special Inquiry Officer shall render his decision as soon as possible and shall render it in the presence of the person concerned wherever practicable.
(2) Where the Special Inquiry Officer decides that the person concerned is a person who
(a) may come into or remain in Canada as of right;
10 When the section 22 report came before the Special Inquiry Officer, that officer might have asked himself whether the effect of section 7(3) was
(a) to deem the applicant to be "a person who seeks to come into Canada from the United States" so as to bring section 23(1) into play, or
(b) merely to deem the applicant to be "a person who seeks to come into Canada" so as to bring section 23(2) into play.
The view that a person who has been admitted as a non- immigrant from the United States is deemed, by section 7(3) when the facts make it apply, to be "a person seeking admission to Canada" from the United States so as to bring section 23(1) into play is not an untenable view. (Compare The King v. Dominion Bridge Co. Ltd. [1940] S.C.R. 487.) However, the words of the statute do not compel such a view and I am of opinion that the better view is that in accordance with which section 7(3) brings section 23(2) into play in the circumstances of this case. The alternative is too harsh. As I read section 23, in the case of a person seeking to come into Canada from the United States or St. Pierre and Miquelon, upon receipt of a section 22 report, a Special Inquiry Officer may make a deportation order without an "inquiry" first being held, while, in the case of any other person seeking to come into Canada, no deportation order can be made without an inquiry. A deportation order made without affording the subject the protection of an inquiry is too harsh a result to be accepted, if it can be avoided, having regard to section 35, which forbids admission to the subject of such an order without consent of the Minister.
(b) in the case of a person seeking admission to Canada, is not a member of a prohibited class; or
(c) in the case of a person who is in Canada, is not proved to be a person described in paragraph 18(1Xa),(6),(c),(d) or (e),
he shall, upon rendering his decision, admit or let such person come into Canada or remain therein, as the case may be.
(3) In the case of a person other than a person referred to in subsection (2), the Special Inquiry Officer shall, upon rendering his decision, make an order for the deportation of such person.
The result of subsections (2) and (3) of this section in the case of a person who is deemed to be "seeking admission to Canada" (leaving aside persons coming in "as of right") is that, if the Special Inquiry Officer decides that he is "not a member of a prohibited class", 11 he must admit or let such person come into Canada (subsection (2)) and, if he finds that he is a member of such a class, he must make a depor tation order against him (subsection (3)).
As the applicant was deemed to be seeking admission to Canada, even though he was actu ally in Canada, it would seem that, for the purpose of deciding whether the applicant was in one of the prohibited classes, the Special Inquiry Officer had to think of him at the con clusion of the Inquiry as though he were at that moment actually at the border seeking to be admitted to Canada. The Special Inquiry Officer appeared so to look at the matter and concluded that the applicant was in two different prohib ited classes, as appears from the following por tion of the deportation order:
(iii) you are a member of a prohibited class of persons described in paragraph 5(p) of the Immigration Act in that in my opinion you are not a bona fide non-immigrant because you are an immigrant,
(iv) you are a member of a prohibited class of persons described in paragraph 5(t) of the Immigration Act in that you do not comply with the requirements of the Immigra tion Regulations Part I by reason of the fact that you are not in possession of a letter of pre-examination in the form prescribed by the Minister as required by subsection 28(2) of the Immigration Regulations, Part I.
" A "prohibited class" is defined by section 2 of the Act to mean any of the classes of persons designated in section 5.
The relevant part of section 5 reads as follows:
5. No person, other than a person referred to in subsec tion 7(2), shall be admitted to Canada if he is a member of any of the following classes of persons:
(p) persons who are not, in the opinion of a Special Inquiry Officer, bona fide immigrants or non-immigrants;
(t) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders lawfully made or given under this Act or the regulations.
As the applicant, throughout the interview of October, 1973, with an Immigration Officer and throughout the Inquiry before the Special Inqui ry Officer, seemed to have been seeking non- immigrant status although the evidence adduced at the Inquiry established that, from some time prior to coming to Canada, the applicant's inten tion had always been to reside permanently in Canada, the finding that the applicant fell within section 5(p) does not seem to be open to attack. Moreover, if, in fact, the applicant should have been treated as an immigrant, 12 then, as already explained, he fell within the prohibited class set out in section 5(t) because he did not have the documentation required by Regulation 28(1) and (2).
Counsel for the applicant, as I understood him, put forward no submission against the validity of the deportation order in so far as it was based on section 5(p)—that is the finding of the Special Inquiry Officer that the applicant was not, in his opinion, a bona fide non-immi- grant—except that that finding was wrong on the evidence. It is not, however, for this Court, on a section 28 application, to re-weigh the evidence. There was evidence upon which the Special Inquiry Officer could find as he did and he did not err in law in doing so. Indeed, on my reading of the evidence, I do not see how he
12 Compare section 6 of the Immigration Act, which reads:
6. Every person seeking to come into Canada shall be presumed to be an immigrant until he satisfies the immi gration officer examining him that he is not an immigrant.
could have come to any other conclusion. (I might add that, in my view, that ground is sufficient to support the deportation order even if the applicant's attack in law on the deporta tion order in so far as it is grounded on section 5(t), to which I will now come, were sound.)
The attack on the deportation order in so far as it is grounded on section 5(t)—that is the applicant's failure to have the documentation required by section 28 of the Regulations—is based on counsel's contention that it is estab lished by the decision of the Supreme Court of Canada in Podlaszecka v. Minister of Manpower and Immigration 13 that such requirement cannot be applied in such a case as the present. In the Podlaszecka case, the Supreme Court, of Canada had under consideration a deportation order one of the grounds of which was that the person against whom it had been made was not in possession of a valid and subsisting immigrant visa issued pursuant to Regulation 28(1), which at that time, read as follows:
28. (1) Every immigrant who seeks to land in Canada shall be in possession of a valid and subsisting immigrant visa issued to him by a visa officer and bearing a serial number which has been recorded by the officer in a register pre scribed by the Minister for that purpose, and unless he is in possession of such visa, he shall not be granted landing in Canada.
Laskin J. (as he then was), delivering the judg ment of the majority of the judges in the Supreme Court of Canada, said at page 741 that the person in question "was entitled to apply in Canada for permanent residence" and that Regulation 28(1) could not "be applied to her without destroying her status under section 7(3) of the Act" and that he "would not give it that effect when it has subject-matter in its proper context". Subsequent to that decision, on November 6, 1972, [SOR/72-443] Regulation 28(1) was revoked and re-enacted to read as follows:
28. (1) Every immigrant who seeks to land in Canada, including an immigrant who reports pursuant to subsection (3) of section 7 of the Act, shall be in possession of a valid and subsisting immigrant visa issued to him by a visa officer and bearing a serial number which has been recorded by the officer in a register prescribed by the Minister for that
13 [1972] S.C.R. 733.
purpose, and unless he is in possession of such visa, he shall not be granted landing in Canada.
By section 1 of chapter 28 of the Statutes of 1973, it was provided, "for greater certainty" that Regulation 28(1), as so re-enacted, shall be deemed for all purposes to have had the same force and effect "as if it had been made .. . pursuant to an Act of Parliament that authorized the making of that subsection". The new Regu lation 28(1) makes it clear on the face of it that it applies to an "immigrant" who reports pursu ant to section 7(3) and any possible doubt as to its validity has, in my view, been removed by chapter 28 of the Statutes of 1973. That being so, there can be no ground in the reasoning in the Podlaszecka case for not giving full effect to the words of Regulation 28(2), which reads:
(2) The Minister may exempt any group or class of persons from the requirements of subsection (1) but no person coming within any group or class so exempted may be granted landing in Canada unless at the time of his application for landing he is in possession of a letter of pre-examination in the form prescribed by the Minister.
Either there was an exemption order under Regulation 28(2) that applied to the applicant, in which event he required a letter of pre-examina tion, which he did not have, or there was no such exemption order, in which event he was, under Regulation 28(1), required to have an immigrant visa, which he did not have. The applicant can only escape from the requirement of Regulation 28(2) by bringing himself under the requirement of Regulation 28(1). As he did not comply with either, such an exercise cannot result in invalidating the deportation order.
For the above reasons, I am of opinion that the attack on the deportation order in so far as it is grounded on section 5(p) or 5(t) of the Immi gration Act must be rejected.
It remains to consider the attacks of the appellant upon the manner in which the Special Inquiry Officer conducted the "Inquiry" in this case.
In so far as such attacks can be ascertained from the appellant's memorandum in this Court, they consist of allegations that the Special Inquiry Officer was biased, did not conduct the Inquiry fairly and did not discharge his decision- making function properly. I have read and reread the transcript of the Inquiry and I am of opinion that, in spite of the most extraordinary difficulties, the Special Inquiry Officer carried on the Inquiry in a manner that more than meets all the requirements of the law and of natural justice. The only point of attack that warrants special consideration is the fact that the Special Inquiry Officer finally cut off the examination of one of the applicant's witnesses and the presentation of further evidence on behalf of the applicant. Prima facie, such action on the part of a hearing officer would constitute a refusal of an opportunity to present the party's full case. However, the Special Inquiry Officer in this case had, prior to taking such action and after having granted the applicant several adjournments, permitted the very experienced lawyer acting for the applicant to lead evidence having nothing to do with the questions to be decided at great length, and had finally said:
... Unless you have some further relevant information to present at this time I ask you to submit your summary as far as your client is concerned.
and the applicant's lawyer had nevertheless per sisted in the course that he had followed throughout the Inquiry of giving no indication of any evidence relevant to the issues that he pro posed to adduce.
During the course of argument in this Court, counsel for the applicant was invited to show us any occasion in the course of the proceedings before the Special Inquiry Officer where coun sel for the applicant had sought an opportunity to bring evidence of any relevant fact and had been refused it. Counsel was not able to show us any such occasion. In the circumstances, I am of the view that there is no basis for attack ing the manner in which the hearing was con ducted by the Special Inquiry Officer.
I am, for the aforesaid reasons, of the view that the section 28 application should be dismissed.
* * *
PRATTE J. concurred.
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SHEPPARD D.J. concurred.
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