T-5076-78
Brij S. Pratap (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Smith D.J.—Winnipeg, December
5 and 18, 1978.
Prerogat i ve wr i ts — Mandamus — Immigration — Whether
or not Adjudicator has jurisdiction to reopen inquiry held by
Special Inquiry Officer prior to coming into force of the
Immigration Act, 1976 — Application allowed — Immigration
Act, R.S.C. 1970, c. I-2, s. 28 — Immigration Act, 1976, S.C.
1976-77, c. 52, s. 35(1) — Interpretation Act, R.S.C. 1970, c.
I-23, s. 36(c),(d).
APPLICATION.
COUNSEL:
Ron Wilinofski for applicant.
Brian Meronek for respondent.
SOLICITORS:
Carbert & Company, Winnipeg, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This motion for an order of man-
damus was heard in the City of Winnipeg on the
5th day of December, 1978. The issue involved is
whether the Adjudicator Mr. K. Flood, has juris
diction to reopen an inquiry held by a Special
Inquiry Officer prior to the coming into force of
the new Immigration Act, 1976, S.C. 1976-77, c.
52. The relevant provisions which need considera
tion are section 28 of the former Immigration Act,
R.S.C. 1970, c. I-2, and section 35 of the new Act
which came into force on April 10, 1978. These
sections read as follows:
28. An inquiry may be reopened by a Special Inquiry Officer
for the hearing and receiving of any additional evidence or
testimony and a Special Inquiry Officer has authority, after
hearing such additional evidence or testimony, to confirm,
amend or reverse the decision previously rendered.
and in the new Act,
35. (1) Subject to the regulations, an inquiry by an
adjudicator may be reopened at any time by that adjudicator or
by any other adjudicator for the hearing and receiving of any
additional evidence or testimony and the adjudicator who hears
and receives such evidence or testimony may confirm, amend or
reverse any decision previously given by an adjudicator.
In my opinion the adjudicator has jurisdiction to
reopen such an inquiry. In the first place there is
nothing in the new Act which either authorizes or
prohibits an adjudicator from reopening an inquiry
held by a Special Inquiry Officer, but the function
of the adjudicator in this respect, under the new
Act appears to be identical with the Special Inqui
ry Officer under the old Act and in my view it is
inconceivable that Parliament which had pre
scribed the same procedure under the new Act as
it had prescribed under the old Act would intend
that a person who had been ordered deported as a
result of an inquiry held by a Special Inquiry
Officer should not have a right under the new Act
to apply to an adjudicator to reopen the inquiry.
This view is supported by subsections (c) and (d)
of section 36 of the Interpretation Act, R.S.C.
1970, c. I-23.
While I have concluded that the Adjudicator
should consider the question of reopening the
inquiry, it would appear that since his authority
under section 35 is stated in the words "an inquiry
by an adjudicator may be reopened", he has a
discretion in the matter. It is my view that the
discretion is not arbitrary but because I think he
has a discretion, the order of mandamus does not
require him to reopen the inquiry but only exercise
his jurisdiction and consider that question.
Since the matter is urgent I affixed a time limit
of two weeks from the receipt of this order for the
Adjudicator to make his decision.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.