Judgments

Decision Information

Decision Content

A-1419-84
Madhur Lata Prassad (Applicant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Mahoney, Hugessen and Mac- Guigan JJ.—Ottawa, July 9, 1985.
Practice — Appeals — Motion for leave to appeal to Supreme Court of Canada — S. 31 of Federal Court Act charging Court of Appeal with duty, upon application, of determining whether case ought to be submitted to Supreme Court for decision — Practice generally to refuse leave: Min ister of National Revenue v. Creative Shoes Ltd., [19721 F.C. 1425 (C.A.) — Question for submission whether inquiry ought to be adjourned to permit application to Minister and Gover nor in Council, pursuant to ss. 37 and 115 of Immigration Act, 1976 — Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375 narrowly interpreted, with strong dissents, by Federal Court of Appeal — Leave granted -- Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 31(2) — Immi gration Act, 1976, S.C. 1976-77, c. 52, ss. 37, 115.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Minister of National Revenue v. Creative Shoes Ltd., [ 1972] F.C. 1425 (C.A.); Ramawad v. Minister of Man power and Immigration, [1978] 2 S.C.R. 375; Louhisdon v. Employment and Immigration Canada, [1978] 2 F.C. 589 (C.A.); Oloko v. Canada Employment and Immi gration, [1978] 2 F.C. 593 (C.A.); Minister of Employ ment and Immigration v. Widmont, [1984] 2 F.C. 274; 56 N.R. 198 (C.A.).
WRITTEN REPRESENTATIONS BY:
Reiner O. Rothe and Andrew McKinley for applicant.
Rebecca W. Hunter for respondent.
SOLICITORS:
Rothe & Company, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
HUGESSEN J.: This is a motion brought pursu ant to section 31 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] for leave to appeal to the Supreme Court of Canada from a judgment of this Court, rendered March 5, 1985 [A-1419-84, not yet reported], dismissing the applicant's applica tion under section 28 of the Federal Court Act. This Court's judgment held that an adjudicator does not err in refusing an adjournment of an inquiry under the Immigration Act, 1976 [S.C. 1976-77, c. 52], where such adjournment is sought for the purposes of permitting the applicant to pursue applications to the Minister and to the Governor in Council, under sections 37 and 115 respectively. The question sought to be put to the Supreme Court is whether this Court erred in so holding.
I am well aware that the practice of this Court is generally to refuse leave, especially since such refusal is, in any event, without prejudice to the applicant's right to apply for leave to the Supreme Court itself. The leading case on the matter in this Court is Minister of National Revenue v. Creative Shoes Ltd., [ 1972] F.C. 1425 (C.A.), where the Court held that leave ought not to be granted save in the most obvious cases and that, generally speaking, the Supreme Court should be allowed to set its own agenda. That reasoning is even more cogent today than it was in 1972 and the advent of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] has imposed upon the Supreme Court an even heavier burden as the country's final court of appeal. It remains, however, that section 31 of the Federal Court Act charges this Court with the duty, when application is made to it, of determin ing whether a case is one which "ought to be submitted to the Supreme Court for decision". That is a duty which cannot be avoided. Until such time as Parliament sees fit to change the law, litigants are entitled, as of right, to have our view as to whether a question is one of such national importance that it ought to go to the court of last resort.
Here the question sought to be submitted is one which some might think has already been decided by the Supreme Court (Ramawad v. Minister of Manpower and Immigration, [ 1978] 2 S.C.R. 375). This Court, however, has interpreted Rama- wad very narrowly in the majority decisions in Louhisdon v. Employment and Immigration Canada, [1978] 2 F.C. 589 (C.A.) and Oloko v. Canada Employment and Immigration, [1978] 2 F.C. 593 (C.A.). In each of these cases there was a strong dissent. More recently, in the case of Min ister of Employment and Immigration v. Wid- mont, [1984] 2 F.C. 274; 56 N.R. 198 (C.A.), this Court, again with a strong dissent, felt itself bound to follow its own previous decisions in Louhisdon and Oloko. It is not without significance that in Widmont the Court stayed execution of its own judgment until the latter of: expiry of time to apply for leave to appeal to the Supreme Court, refusal of such leave, or the giving of judgment by the Supreme Court on the merits if leave should be granted. By the same token, the panel of the Court which rendered the judgment presently sought to be submitted to the Supreme Court indicated specifically that it found itself bound by the deci sion in Widmont. Notwithstanding this, there has apparently been no application made to the Supreme Court for leave in Widmont and the normal delays for doing so have now long expired.
In the circumstances and notwithstanding the great reluctance which I feel in adding yet another case to the already overloaded list of the Supreme Court, it is my view that the question raised herein is one which ought to be submitted to the Supreme Court for decision and, that being so, it is our duty to grant the leave sought.
MAHONEY J.: I agree. MACGUIGAN J.: I agree.
 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.