A-435-85
Caesar Gray (Petitioner)
v.
Yvon Fortier (Respondent)
and
Employment and Immigration Commission (Mis-
en- cause)
Court of Appeal, Pratte, Ryan and Hugessen JJ.—
Montreal, June 13; Ottawa, July 11, 1985.
Immigration — Application to quash refusal by Adjudica
tor to reopen inquiry pursuant to s. 35 — Under s. 35, inquiry
to be reopened for sole purpose of adducing new evidence
warranting change or reversal of previous decision — "Deci-
sion" referring to determination under s. 32 as to whether
subject of inquiry described in s. 14(1) or s. 27 — "Decision"
not order or notice issued as result of decision — S. 35 not
authorizing reopening to receive evidence related to order
made at conclusion of inquiry — Application dismissed on
ground applicant seeking to show illegality of deportation
order — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 14(1),
27, 32, 35, 45(1), 46(2), 71(1) — Immigration Regulations,
1978, SOR/78-172, s. 39 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
An immigration inquiry was adjourned to permit the appli
cant's claim that he was a Convention refugee to be disposed of.
The Minister and the Immigration Appeal Board both rejected
the claim. While section 28 proceedings against the Board's
decision were pending the inquiry was resumed and a deporta
tion order was pronounced against the applicant. In due course,
the section 28 application was allowed and the decision of the
Board quashed. The applicant then sought to have the inquiry
reopened so that the deportation order could be revoked. The
Adjudicator refused to reopen the inquiry on the ground that he
lacked power to do so. This section 28 application is directed
against that refusal.
Under section 35 of the Immigration Act, 1976, an inquiry
may be reopened for the hearing and receiving of additional
evidence and the adjudicator may confirm, amend or reverse
any decision previously given by an adjudicator.
Held (Hugessen J. dissenting), the application should be
dismissed.
Per Pratte J. (Ryan J. concurring): Section 35 of the Act
does not confer on adjudicators an unqualified power to reopen
inquiries and review their previous decisions. Under subsection
35(1), an inquiry may be reopened for the sole purpose of
receiving new evidence which may warrant a change or reversal
of a decision previously given.
The word "decision" in subsection 35(1) must be given a
very precise and narrow meaning. The decision that may be
changed or reversed under that subsection is not the order or
notice made at the conclusion of the inquiry. The word "deci-
sion" refers to the determination made by an adjudicator under
section 32 of the Act that a person is or is not either described
in subsection 14(1) or admissible or described in section 27.
Once the decision is arrived at, the adjudicator must take the
action prescribed by section 32 and issue a deportation order,
an exclusion order or a departure notice. Section 35 does not
authorize the reopening of an inquiry for the purpose of
receiving evidence related only to the order made at the conclu
sion of the inquiry. This section 28 application must therefore
be dismissed since the applicant requested a reopening of the
inquiry for the purpose of adducing evidence which would show
the illegality of the deportation order but which would not
affect in any way the validity of the decision on which that
order was based.
Per Hugessen J. (dissenting): The Minister's argument based
on a distinction in the English text of the statute between the
"decision" and the "order or notice" issued as a result of that
decision is unacceptable. It has no basis in the French text:
whereas each of the subsections of section 32 begins with the
words "Where an adjudicator decides", the French version
opens with the words "L'arbitre, après avoir conclu que". Even
in the English text, it requires an unacceptably narrow reading
of the language used, for, if the "decision" which can be revised
is strictly limited to the single determination which is described
by section 32 as being a decision, it would not be necessary to
give power to revise "any" previous decision. A "decision" is
anything that is decided by a person having authority to do so,
and it would require far stronger language than has been used
in the Act to restrict it only to that which is called a "decision".
In the context of the present case, the Adjudicator who
presided at the applicant's resumed inquiry was obliged to
apply the provisions of subsection 46(2) of the Act. That
subsection requires the adjudicator to "decide" whether the
subject of the inquiry is a person described in paragraphs
46(2)(a) or (b); it is only as a result of the "decision" that he
can make a removal order or issue a departure notice. That
"decision" is to be based on evidence. In the case at bar, the
reopening of the inquiry is sought so that the Adjudicator may
receive evidence to show that the applicant is not a person
described in paragraphs (a) or (b). Such evidence is likely to be
conclusive. It will normally result in the Adjudicator reversing
his previous decision and quashing the deportation order; the
inquiry will then have to be readjourned until such time as the
conditions of subsection 46(2) have been met. In the circum
stances, the Adjudicator has not only the power but the duty to
reopen the inquiry.
COUNSEL:
W. Melvin Weigel for petitioner.
Suzanne Marcoux- Paquette for respondent
and mis -en-cause.
SOLICITORS:
Weigel, Duong & Kliger, Westmount,
Quebec, for petitioner.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a decision of an Adjudicator under the
Immigration Act, 1976 [S.C. 1976-77, c. 52]
refusing to reopen an inquiry at the conclusion of
which he had pronounced a deportation order
against the applicant.
During the course of that inquiry, the applicant
had claimed that he was a Convention refugee.
Before concluding the inquiry, the Adjudicator
had complied with section 45 of the Immigration
Act, 1976 and adjourned the inquiry so that the
applicant's claim be disposed of. The Minister
rejected the claim. The applicant then applied to
the Immigration Appeal Board for a redetermina-
tion of his claim. The Board rejected that applica
tion summarily pursuant to subsection 71(1). The
applicant attacked that decision under section 28
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10]. That section 28 application was still
pending when, on January 4, 1985, the Adjudica
tor resumed the inquiry and pronounced a deporta
tion order against the applicant. The section 28
application was heard on April 15, 1985, and, on
that day, the Court allowed that application, set
aside the decision that the Immigration Appeal
Board had made under subsection 71(1) and
referred the matter back to the Board. Counsel for
the applicant then wrote the Adjudicator who had
pronounced the deportation order and asked that
he reopen the inquiry, so that the judgment of this
Court setting aside the decision of the Immigration
Appeal Board be proved and that, as a conse
quence, the deportation order be quashed on the
ground that it had been made without jurisdiction.
The Adjudicator refused to accede to that request
since, in his view, he did not have the power to
reopen the inquiry for the purpose of receiving
evidence showing that he had acted without juris
diction when he had resumed the inquiry and
pronounced the deportation order.
The reopening of inquiries is governed by sec
tion 35 of the Immigration Act, 1976 and section
39 of the Immigration Regulations, 1978 [SOR/
78-172]:
35. (1) Subject to the regulations, an inquiry by an adjudica
tor may be reopened at any time by that adjudicator or by any
other adjudicator for the hearing and receiving of any addition
al 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.
(2) Where an adjudicator amends or reverses a decision
pursuant to subsection (1), he may quash any order or notice
that may have been made or issued and where he quashes any
such order or notice, he shall thereupon take the appropriate
action pursuant to section 32.
(3) Where an order or notice is quashed pursuant to subsec
tion (2), that order or notice shall be deemed never to have
been made or issued.
39. An inquiry may be reopened by an adjudicator pursuant
to subsection 35(1) of the Act at the written request or with the
written permission of the person concerned or where the deci
sion made at the inquiry will be amended to the benefit of the
person concerned.
Section 35 of the Act does not give adjudicators
an unqualified power to review their decisions and
reopen inquiries. The powers conferred by that
section are more limited.
Subsection 35(1) gives adjudicators the power to
reopen inquiries for the sole purpose of receiving
new evidence which may warrant a change or
reversal of a decision previously given. An
adjudicator, therefore, may not reopen an inquiry
for the sole purpose of changing a decision (with-
out receiving new evidence) or for receiving evi
dence which could not lead to a change or reversal
of a previous decision. This conclusion is not with
out importance because subsection 35(2) makes
clear that the word "decision", in subsection
35(1), must be given a very precise and narrow
meaning.
Under subsection 35(2), when an adjudicator,
after having reopened an inquiry and received new
evidence, amends or reverses a decision pursuant
to subsection (1), he may quash any order or
notice that may have been made and when he
quashes any such order or notice, he shall there
fore take the appropriate action pursuant to sec-
tion 32. In order to understand that provision, it is
necessary to refer to section 32 which clearly
indicates that, at the conclusion of an inquiry, an
adjudicator must first make certain decisions and
must also, after those decisions are made, issue
orders or notices. In the case of an inquiry held
following a section 20 report, the adjudicator must
first decide whether the subject of the inquiry is a
person described in subsection 14(1) and, if he is
not, whether he is admissible in the country; in the
case of an inquiry held following a section 27
report, the adjudicator must first decide whether
the subject of the inquiry is a person described in
section 27. Once one of these decisions has been
arrived at, the adjudicator must take the action
prescribed by section 32 and, in certain circum
stances, must make a deportation order or an
exclusion order or issue a departure notice. Those
are the orders and notices which, according to
subsection 35(2), may be quashed when an
adjudicator has amended or reversed a decision
pursuant to subsection 35(1). The decision that
may be changed or reversed under subsection
35(1) is not the order or notice that was made or
issued at the conclusion of the inquiry. The word
"decision" in that subsection clearly refers to the
determination made by an adjudicator that a
person is or is not either described in subsection
14(1) or admissible or described in section 27.
Section 35, therefore, does not authorize the reo
pening of an inquiry for the purpose of receiving
evidence related only to the order made at the
conclusion of the inquiry. It follows that this sec
tion 28 application must be dismissed since the
applicant requested a reopening of the inquiry for
the purpose of adducing evidence which would
show the illegality of the deportation order but
which would not affect in any way the validity of
the decision on which that order was based.
I would dismiss the application.
RYAN J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J. (dissenting): The applicant was
the subject of an inquiry under the Immigration
Act, 1976. During that inquiry, he made a claim
for refugee status. As required by subsection
45(1), the inquiry was adjourned pending determi
nation of the refugee claim. When that claim was
rejected by the Minister, the applicant applied to
the Immigration Appeal Board for redetermina-
tion. The Immigration Appeal Board summarily
dismissed the application for redetermination pur
suant to subsection 71(1). The applicant applied to
this Court, under section 28 of the Federal Court
Act, to quash the decision of the Immigration
Appeal Board but, while those proceedings were
pending, the inquiry under the Immigration Act,
1976 was resumed and a deportation order was
pronounced against the applicant. In due course,
the section 28 proceedings before this Court were
allowed, the decision of the Immigration Appeal
Board was quashed and the matter was referred
back to the Board for the holding of a proper
hearing on the applicant's application for redeter-
mination of his claim for refugee status. Pending
the holding of a hearing by the Immigration
Appeal Board, the applicant applied to the
Adjudicator who presided the inquiry under the
Immigration Act, 1976 to have that inquiry reo
pened so that it could be shown that the decision of
the Immigration Appeal Board had been quashed
and that the deportation order previously issued
should therefore be revoked. The Adjudicator
refused to reopen the inquiry for these purposes,
holding that he had no power to do so. The appli
cant now applies to this Court, under section 28, to
have that refusal set aside.
The power of an adjudicator to reopen an inqui
ry and to revise his own prior decisions is con
tained in section 35 of the Immigration Act, 1976:
35. (1) Subject to the regulations, an inquiry by an adjudica
tor may be reopened at any time by that adjudicator or by any
other adjudicator for the hearing and receiving of any addition
al 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.
(2) Where an adjudicator amends or reverses a decision
pursuant to subsection (1), he may quash any order or notice
that may have been made or issued and where he quashes any
such order or notice, he shall thereupon take the appropriate
action pursuant to section 32.
(3) Where an order or notice is quashed pursuant to subsec
tion (2), that order or notice shall be deemed never to have
been made or issued.
Counsel for the Minister bases her argument in
support of the Adjudicator's refusal to reopen in
the present case on an extremely narrow and legal
istic reading of the section. Counsel's argument, as
I understand it, is based on a distinction in the
English text of the statute between the "decision"
and the "order or notice" which is issued as a
result of that decision. The "decision" is restricted
to the determination which the adjudicator is
called upon to make by the opening words of each
of the subsections of section 32: "Where an
adjudicator decides".* The adjudicator has power
to reopen and receive new evidence only if that
evidence is susceptible of bringing about a change
in the "decision" and not if it is directed only to
the "order or notice" or to some other matter
which the adjudicator is called upon to determine
during the course of his inquiry.
This interpretation produces surprising results.
It allows an adjudicator the broadest powers to
vary the underlying "decision" while denying him
power to make any change whatever in the result
ing order or notice. To take a commonplace exam
ple, it would deny to an adjudicator who has issued
a deportation order the power to receive new evi
dence whose purpose was to persuade him to
revoke that deportation order and issue in its place
a departure notice. It would even deny an
adjudicator the power to make a simple change in
the date on a departure notice.
Quite apart from its results, however, I find the
argument to be unacceptable. As I have previously
pointed out, it has no basis in the French text.
Even in the English text it requires an unaccept
ably narrow reading of the language used, for, if
the "decision" which can be revised is strictly
limited to the single determination which is
described by section 32 as being a decision, it
* The French text lends no support to this argument; each of
the subsections of section 32 opens with the words, "L'arbitre,
après avoir conclu que".
would not be necessary to give power to revise
"any" previous decision. In the normal use of
language, I would have thought that the deport/
depart determination was at least as much a
matter for "decision" by the adjudicator as any of
the other things he is called upon to do. A "deci-
sion", in my view, is anything that is decided by a
person having authority to do so, and it would
require far stronger language than has been used
in the Act to restrict it only to that which is called
a "decision".
In the context of the present case, the Adjudica
tor who presided at the applicant's resumed inqui
ry was obliged to apply the provisions of subsection
46(2):
46....
(2) Where a person
(a) has been determined by the Minister not to be a Conven
tion refugee and the time has expired within which an
application for a redetermination under subsection 70(1)
may be made, or
(b) has been determined by the Board not to be a Convention
refugee,
the adjudicator who presides at the inquiry caused to be
resumed pursuant to subsection (1) shall make the removal
order or issue the departure notice that would have been made
or issued but for that person's claim that he was a Convention
refugee.
As I read this text, it requires the adjudicator to
make up his mind, i.e. to "decide", whether the
subject of the inquiry is a person described in
paragraphs (a) or (b); it is only as a result of that
"decision" that he can make a removal order or
issue a departure notice. Furthermore, that "deci-
sion" is one which I would normally expect to be
based upon evidence. Here the Adjudicator is
being asked to reopen his inquiry so that he may
receive evidence to show that, contrary to what
was previously thought, the applicant is not a
person described in paragraphs (a) or (b). In the
nature of things, such evidence is likely to be
conclusive. It will normally result in the Adjudica
tor reversing his previous decision and quashing
the deportation order; the inquiry will then have to
be readjourned until such time as the conditions of
subsection 46(2) have been met. In the circum-
stances, in my view, the Adjudicator has not only
the power but the duty to reopen the inquiry.
I would allow the application, set aside the
impugned decision and return the matter to the
Adjudicator for redetermination on the basis that
he has a duty to reopen an inquiry for the purpose
of receiving evidence to show that at the resumed
inquiry the person concerned was not a person
described in paragraphs (a) or (b) of subsection
46(2).
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.