A-223-89
Her Majesty the Queen and the Minister of
Employment & Immigration (Appellants)
(Defendants)
v.
Canadian Council of Churches (Respondent)
(Plaintiff)
INDEXED AS: CANADIAN COUNCIL OF CHURCHES V. CANADA
(C.A.)
Court of Appeal, Pratte, Mahoney and Mac-
Guigan JJ.A.—Toronto, January 23, 24 and 25;
Ottawa, March 12, 1990.
Practice — Parties — Standing — Public interest — Appeal
from refusal to strike statement of claim — Respondent
comprised of various churches helping refugees — Action
seeking declaration immigration legislation unconstitutional
— Respondent's corporate status not bar to public interest
standing — Whether any other reasonable and effective
manner in which to bring issue before Court — Legislation
examined to determine whether other directly affected group
which could itself raise challenge — Broad public interest
asserted same as that of refugee claimants — Judicial notice
of daily challenges by directly affected group (refugee claim
ants) — Whether statement of claim constituting such inter
nally integrated attack on legislation as to be beyond capabili
ties of directly affected groups — Trial Judge erred in
considering statement of claim as whole — No principles of
integration — Appeal allowed except for few claims regarding
statutory provisions giving rise to public interest standing,
reasonable cause of action.
Practice — Pleadings — Motion to strike — Statement of
claim seeking declaration immigration legislation unconstitu
tional — Reasonable cause of action disclosed neither in
allegations depending on regulations not yet made nor in
allegations right to counsel denied by criminal sanctions
imposed on those aiding entry into Canada of undocumented
persons — Claimants affected beyond scope of Charter as
non-citizens with no claim to admission.
Constitutional law — Charter of Rights — Incorporated
church organization seeking declaration immigration legisla
tion unconstitutional — Charter, ss. 7 and 15 not applicable to
corporations — Corporate status not preventing respondent
from meeting two criteria for public interest standing: serious
issue and genuine interest in validity of legislation — Those
bringing significant issues before courts should not be denied
resources, expertise of public interest corporations.
Immigration — Church organization seeking declaration
under Constitution Act, 1982, s. 52 immigration legislation
unconstitutional — Appeal from refusal to strike statement of
claim — Question of standing — Whether reasonable cause of
action raised — Appeal allowed in part — Action may proceed
regarding certain statutory provisions giving rise to public
interest standing, reasonable cause of action.
The Canadian Council of Churches was established to coor
dinate action on issues of common concern. Member churches
are involved in assisting refugees. It brought an action for a
declaration under subsection 52(1) of the Constitution Act,
1982 that most of the operative provisions of the new Immigra
tion Act, as well as several provisions of the old Act, were
unconstitutional as in contravention of the Charter and the
Canadian Bill of Rights. This was an appeal from the denial of
an application for an order dismissing the action. The issues
were whether the respondent had standing to seek such a
declaration and whether the statement of claim disclosed a
reasonable cause of action. It was argued that the respondent's
corporate status was a bar to meeting the first and second
criteria for public interest standing set out in Minister of
Justice et al. v. Borowski, because the constitutional provisions
relied upon by the respondent to invalidate the legislation
(Charter, sections 7 and 15, Canadian Bill of Rights, para
graph 1(a)) have been held not to apply to corporations. The
respondent contended that the statement of claim constituted
an internally integrated attack on the legislation which none of
the directly affected parties would be able to mount particular
ly since it is able to proceed by action, rather than by adminis
trative review.
Held, the appeal should be allowed except with respect to
certain claims which should be allowed to proceed provided
that an appropriate further amended statement of claim be
filed within 30 days.
Public interest standing is a matter of judicial discretion. To
be entitled to public interest standing, a litigant must establish
that: (1) there is a serious issue; (2) the plaintiff has a genuine
interest as a citizen in the validity of the legislation; and (3)
there is no other reasonable and effective manner in which the
issue may be brought before the Court.
As to the respondent's corporate status, in Energy Probe v.
Canada (Attorney General), the Ontario Court of Appeal took
a broad view of the participation in litigation of the non-profit
public interest corporation. Carthy J.A. expressed the Court's
view that those seeking to bring significant issues before the
courts should not be deprived of the expertise and resources
needed for effective presentation. There should not be an
absolute rule of exclusion. If an action by a corporation offers
the only effective means for judicial review of an issue, it is
within the reasonable exercise of judicial discretion to allow
that action. The first and second criteria were met as the very
comprehensiveness of the action laid prima facie claim to the
raising of a serious issue, and the respondent's motivation is a
public interest one, based upon a profound concern for the
public welfare.
As to the third criterion, the principles set out in the cases
are clear: public interest standing will be allowed only where
there is no directly affected group which could itself raise a
challenge to the legislation or where, although such a group
exists, no member of the group is thought likely to do so, or the
group directly affected is not affected as to the greater public
issue. In order to determine the advisability of public interest
standing, it was necessary to look closely at the legislation. In
addition to refugee claimants themselves, others who might be
affected by the legislation are Canadian citizens and residents
who might become liable to prosecution for their work in
assisting refugee claimants. This group could include church
members and members of the legal profession. However, even
these other persons would be affected in relation to refugee
claimants, who constitute the group overwhelmingly affected
by the legislation. The appellants argued that the new Act is a
regulatory statute which is certain to produce an abundance of
real cases. In McNeil, where standing was granted to challenge
legislation although others were more directly affected by its
regulatory nature, they were not affected in relation to the
broadest public interest at stake. Here, the broad public inter
est asserted by the respondent is the same as that brought
forward by the directly affected group. Although Borowski
indicated that public interest standing can be recognized even if
there is someone with a more direct interest, that can be so only
where the Court, as in Borowski, believes that challenges from
the more directly affected group are unlikely. Judicial notice
had to be taken that challenges were coming forward daily.
The Motions Judge erred in deciding that the respondent
should be given standing to pursue the allegations in the
statement of claim taken as a whole. The statement of claim
should be taken as a whole only where it asserts closely related
causes of action. The statement of claim revealed that it was
not an integrated attack on the legislation. There were no real
principles of integration, and a number of claims were without
merit, in that they were based on a misapprehension of the
legislation, disregarded cases already deciding the issues, raised
issues which could be brought by any Canadian resident who
might be charged under the legislation or were premature, since
they challenged what may possibly be done by the Government
under regulations not yet made. Furthermore, section 52
requires that the alleged violation must arise because of a
conflict with the Constitution. Allegations based on the
Canadian Bill of Rights or international standards had to be
struck.
Upon an examination of each of the allegations in the
statement of claim, it appeared that standing should be granted
where it would be difficult for claimants to challenge the
provision because they were on their way out of the country or
the time limits imposed by the legislation may be inadequate to
instruct counsel. Such provisions gave rise to a claim for public
interest standing and constituted a reasonable cause of action.
Although the criminal sanctions imposed for aiding and abet
ting the entry into canada of persons not in possession of
required documents may constitute a denial of the right to
counsel (by deterring lawyers from advising undocumented
refugees) and could found a right of standing, it could not
constitute a reasonable cause of action since the claimants
affected would all be non-citizens with no claim to admission to
Canada and therefore beyond the scope of the Charter.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c I-2, ss. 20(2), 23(5),
30(3) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 9),
43(4) (as am. idem, s. 14), 49(1)(a) (as am. idem, s.
16), (b) (as am. idem), 69(1) (as am. idem, s. 18), (4)
(as am. idem), (5) (as am. idem), 70(3) (as am. idem),
85(1)(b) (as am. idem, s. 20), 114(1)(a),(r).
Canadian Bill of Rights, R.S.C., 1985, Appendix III,
s. 1(a).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 2, 7, 8, 9, 10, 12, 15, 24(1).
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(î).
Federal Court Rules, C.R.C., c. 663, R. 419(1).
Immigration Regulations, 1978, SOR/78-172.
CASES JUDICIALLY CONSIDERED
APPLIED:
Thorson v. Attorney General of Canada et al., [1975] 1
S.C.R. 138; Nova Scotia Board of Censors v. McNeil,
[1976] 2 S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55
D.L.R. (3d) 632; 32 C.R.N.S. 376; 5 N.R. 43; Minister
of Justice et al. v. Borowski [Borowski No. 1], [1981] 2
S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1
W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24
C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v.
Canada (Minister of Finance), [1986] 2 S.C.R. 607;
(1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23
Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338;
Energy Probe v. Canada (Attorney General) (1989), 68
O.R. (2d) 449 (C.A.); Mohammad v. Minister of
Employment and Immigration (1988), 55 D.L.R. (4th)
321; 21 F.T.R. 240; 91 N.R. 121 (F.C.A.); leave to
appeal refused, [1989] 2 S.C.R. xi; Sethi v. Canada
(Minister of Employment and Immigration), [1988] 2
F.C. 552; (1988), 52 D.L.R. (4th) 681; 31 Admin. L.R.
123; 22 F.T.R. 80; 87 N.R. 389 (C.A.); Kindler v.
MacDonald, [1987] 3 F.C. 34; (1987), 41 D.L.R. (4th)
78; 26 Admin. L.R. (2d) 186; 3 Imm. L.R. (2d) 38; 80
N.R. 388 (C.A.); Attorney General of Canada v. Inuit
Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980),
115 D.L.R. (3d) 1; 33 N.R. 304; Operation Dismantle
Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441;
(1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13
C.R.R. 287; 59 N.R. 1.
REVERSED:
Canadian Council of Churches v. Canada, [1989] 3 F.C.
3 (T.D.).
CONSIDERED:
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d)
417; 94 N.R. 167; R. v. Wholesale Travel Group Inc.
(1989), 70 O.R. (2d) 545; 63 D.L.R. (4th) 325 (C.A.);
Smith, Kline & French Laboratories Limited v. Attorney
General of Canada, [1986] 1 F.C. 274; (1985), 24 D.L.R.
(4th) 321; 7 C.P.R. (3d) 145; 19 C.R.R. 233; 12 F.T.R.
81 (T.D.); affd 119871 2 F.C. 359; (1986), 34 D.L.R.
(4th) 584; 11 C.I.P.R. 181; 12 C.P.R. (3d) 385; 27
C.R.R. 286; 78 N.R. 30 (C.A.); leave to appeal refused,
[1987] 1 S.C.R. xiv.
REFERRED TO:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
(1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3
W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385;
13 C.R.R. 64; 85 C.L.L.C. 14,023; 58 N.R. 81 (C.A.);
National Anti-Poverty Organization v. Canada (Attor-
ney General), [1989] 3 F.C. 684; (1989), 60 D.L.R. (4th)
712; 26 C.P.R. (3d) 440; 28 F.T.R. 160; 99 N.R. 181
(C.A.); New Brunswick Broadcasting Co., Limited v.
Canadian Radio-television and Telecommunication
Commission, [1984] 2 F.C. 410; 13 D.L.R. (4th) 77; 2
C.P.R. (3d) 433; 12 C.R.R. 249; 55 N.R. 143 (C.A.).
COUNSEL:
Graham R. Garton for appellants (defend-
ants).
Barbara Jackman, Marlys Edwardh and
Nancy Goodman for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (defendants).
Jackman, Zambelli & Silcoff, Toronto, for
respondent (plaintiff).
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This case deals with two
issues: whether the respondent has standing to
bring this declaratory action and whether its state
ment of claim discloses a reasonable cause of
action.
The respondent was founded in 1945 and incor
porated by Act of Parliament in 1956. It was
established as a forum for the different denomina
tional Churches in Canada to discuss and coordi
nate issues of common concern. The member
Churches belonging to the respondent include the
Anglican Church of Canada, the Armenian
Church of America—Diocese of Canada, the Bap
tist Convention of Ontario and Québec, the Chris-
tian Church (Disciples of Christ), the Coptic
Orthodox Church of Canada, the Ethiopian
Orthodox Church in Canada, the Evangelical Lu-
theran Church in Canada, the Greek Orthodox
Diocese of Toronto (Canada), the Presbyterian
Church in Canada, the Polish National Catholic
Church, the Council of Reformed Church in
Canada Corporation, the Religious Society of
Friends Canada Yearly Meeting, the Salvation
Army—Canada and Bermuda and the United
Church of Canada. The Canadian Conference of
Catholic Bishops is an associate member of the
respondent. The member churches as well as non
member churches participate in inter-church com
mittees which serve specific common purposes and
which are guided by and linked to the respondent.
One such committee, the Inter-Church Commit
tee for Refugees, has the specific mandate of
coordinating church policies and actions related to
the protection and resettlement of refugees both
within and outside Canada. The member and
associated churches of the respondent are also
involved in direct assistance to refugees and
refugee claimants, both within and outside
Canada.
Effective January 1, 1989, extensive amend
ments' ("the amendments" or "the new Act") to
' An Act to amend the Immigration Act, 1976 and to amend
other Acts in consequencè thereof, S.C. 1988, c. 35 and An Act
to amend the Immigration Act, 1976 and the Criminal Code in
consequence thereof, S.C. 1988, c. 36, now R.S.C., 1985 (4th
Supp.), c. 28 and 29 respectively.
the Immigration Act, 1976, S.C. 1976-77, c. 52 2
("the old Act") came into effect, particularly to
those sections which dealt with the Convention
refugee determination process. The respondent, its
member churches and the Inter-Church Commit
tee for Refugees had lobbied in Parliament against
the amendments, and on January 3, 1989, the
respondent filed a statement of claim 3 in the Trial
Division, seeking a declaration that most of the
operative provisions of the new Act, as well as
several provisions of the old Act, were unconstitu
tional as being in contravention of certain provi
sions 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.) [R.S.C., 1985, Appendix II, No. 44]] and
the Canadian Bill of Rights [R.S.C., 1985,
Appendix III]. In all, the respondent seeks to
invalidate 91 provisions of the consolidated Act
and one provision of the Immigration Regulations,
1978 [SOR/78-172], as amended, through some
53 distinct allegations.
The appellants applied to the Trial Division
[[1989] 3 F.C. 3] under Rule 419(1) [Federal
Court Rules, C.R.C., c. 663] for an order striking
out the statement of claim and dismissing the
action, on the bases that the respondent lacked the
requisite standing to seek declarations of legisla
tive invalidity and that the statement of claim
disclosed no reasonable cause of action. The
application was dismissed by the Motions Judge on
April 26, 1989, and this appeal is taken from that
decision.
In its statement of claim, the respondent
brought its declaratory action pursuant to both
subsection 24(1) of the Charter and subsection
52(1) of the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982 c. 11 (U.K.)], but in the
course of oral argument abandoned its reliance on
subsection 24(1). Subsection 52(1) reads as
follows:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
2 The old Act appears in R.S.C., 1985, c. 1-2.
3 The statement of claim was amended in minor respects on
May 30, 1989.
I
Because of the breadth of declaratory actions and
their abstraction from a factual foundation, they
have historically been considered as more appro
priately brought by Attorneys General, who are
recognized as guardians of the public interest, than
by individual persons. Indeed, an individual person
was thought to have no status or standing to
challenge the constitutionality of an Act of Parlia
ment unless specially affected or exceptionally pre
judiced by it. However, the law has evolved, and
the criteria now governing public interest standing
have been laid down by the Supreme Court of
Canada in a number of recent cases which make it
clear that such standing is a matter of judicial
discretion: Thorson v. Attorney General of Canada
et al., [1975] 1 S.C.R. 138; Nova Scotia Board of
Censors v. McNeil, [1976] 2 S.C.R. 265; Minister
of Justice et al. v. Borowski [Borowski No. 1],
[1981] 2 S.C.R. 575; Finlay v. Canada (Minister
of Finance), [1986] 2 S.C.R. 607. In particular,
the following statement by Martland J. in Borow-
ski No. 1, at page 598, commenting on the law as
established by Thorson and McNeil, is usually
taken to represent the present state of the law:
I interpret these cases as deciding that to establish status as a
plaintiff in a suit seeking a declaration that legislation is
invalid, if there is a serious issue as to its invalidity, a person
need only to show that he is affected by it directly or that he
has a genuine interest as a citizen in the validity of the
legislation and that there is no other reasonable and effective
manner in which the issue may be brought before the Court.
Under this new approach litigants have the choice
of showing either that they are affected personally
or that they are entitled to public interest standing.
In the latter case three criteria must be met: (1)
there must be a serious issue; (2) the plaintiff must
have a genuine interest as a citizen in the validity
of the legislation; and (3) there must be no other
reasonable and effective manner in which the issue
may be brought before the Court.
These three criteria are analysed by Le Dain J.
in Finlay with reference to the policy consider
ations underlying them (at pages 631-634):
The traditional judicial concerns about the expansion of public
interest standing may be summarized as follows: the concern
about the allocation of scarce judicial resources and the need to
screen out the mere busybody; the concern that in the determi
nation of issues the courts should have the benefit of the
contending points of view of those most directly affected by
them; and the concern about the proper role of the courts and
their constitutional relationship to the other branches of gov
ernment. These concerns are addressed by the criteria for the
exercise of the judicial discretion to recognize public interest
standing to bring an action for a declaration that were laid
down in Thorson, McNeil and Borowski ... .
The concern about the proper role of the courts and their
constitutional relationship to the other branches of government
is addressed by the requirement of justiciability, which Laskin
J. held in Thorson to be central to the exercise of the judicial
discretion whether or not to recognize public interest standing
The judicial concern about the allocation of scarce judicial
resources and the need to screen out the mere busybody is
addressed by the requirements affirmed in Borowski that there
be a serious issue raised and that a citizen have a genuine
interest in the issue. I think the respondent meets both of these
requirements. The issues of law raised with respect to the
alleged provincial non-compliance with the conditions and
undertakings to which the federal cost-sharing payments are
made subject by the Plan and with respect to the statutory
authority for such payments are in my opinion far from frivol
ous. They merit the consideration of a court. The, status of the
respondent as a person in need within the contemplation of the
Plan who complains of having been prejudiced by the alleged
provincial non-compliance shows that he is a person with a
genuine interest in these issues and not a mere busybody.
The judicial concern that in the determination of an issue a
court should have the benefit of the contending views of the
persons most directly affected by the issue—a consideration
that was particularly emphasized by Laskin C.J. in Borowski—
is addressed by the requirement affirmed in Borowski that
there be no other reasonable and effective manner in which the
issue may be brought before a court. In Thorson, McNeil and
Borowski that requirement was held to be satisfied by the
nature of the legislation challenged and the fact that the
Attorney General had refused to institute proceedings although
requested to do so. In Borowski, the majority and the minority
differed essentially, as I read their reasons, on the question
whether there was anyone with a more direct interest than the
plaintiff who would be likely to challenge the legislation. Here
it is quite clear from the nature of the legislation in issue that
there could be no one with a more direct interest than the
plaintiff in a position to challenge the statutory authority to
make the federal cost-sharing payments.
I take it that the concern about the proper role
of the courts in constitutional cases is seldom in
issue, for the reason that Laskin J. (as he then
was) gave in Thorson (at page 151):
The question of the constitutionality of legislation has in this
country always been a justiciable question.
It was at issue in Finlay since it was not a
constitutional case. The underlying substantive
question there was whether the continued pay
ments by Canada to the province of Manitoba
under the Canada Assistance Plan [R.S.C. 1970,
c. C-1] were illegal, because of the province's
alleged breach of conditions and undertakings to
which such payments were made subject by the
Plan. In a matter so directly touching the political
realm, the question was naturally enough in the
mind of the Court, and Le Dain J. dealt with it
this way (at page 632):
The requirement of justiciability was considered by this Court
in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R.
441, where reference was made to both the institutional and
constitutional aspects of justiciability. The question of justicia-
bility in that case was considered in the context of a challenge,
based on the Canadian Charter of Rights and Freedoms, to the
constitutionality of a decision of the executive government of
Canada in the realms of foreign policy and national defence. As
I read the reasons of Wilson J., with whom Dickson J. (now
C.J.) concurred on the question of justiciability, they affirm
that where there is an issue which is appropriate for judicial
determination the courts should not decline to determine it on
the ground that because of its policy context or implications it
is better left for review and determination by the legislative or
executive branches of government. That was, of course, said in
the context of the judicial duty to rule on issues of constitution
ality under the Charter, but I take it to be equally applicable to
a non-constitutional issue of the limits of statutory authority.
There will no doubt be cases in which the question of provincial
compliance with the conditions of federal cost-sharing will raise
issues that are not appropriate for judicial determination, but
the particular issues of provincial non-compliance raised by the
respondent's statement of claim are questions of law and as
such clearly ....
In a case such as the present one, I believe the
issue of justiciability does not arise as a separate
consideration, and it is not categorized by Mart-
land J. among the three criteria for public interest
standing. In my view justiciability is best thought
of, not so much as a separate concern, but as one
underlying the three criteria, and which needs to
be dealt with explicitly only in rare cases.
The appellants raised the corporate status of the
respondent as a bar to its meeting both the first
and second criteria for public interest standing. I
propose to deal with it principally in relation to the
second.
The appellants correctly asserted that the consti
tutional provisions relied upon by the respondent
to invalidate the legislation do not apply to corpo
rations. This has been so held by the Supreme
Court with reference to the "life, liberty and secu
rity of the person" guarantee in section 7 of the
Charter: Irwin Toy Ltd. v. Quebec (Attorney Gen
eral), [1989] 1 S.C.R. 927. The protection in
subsection 15 (1) of the Charter is extended, not to
persons but only to individuals ("Every individual
is equal before and under the law"), as is that of
paragraph 1(a) of the Canadian Bill of Rights
("the right of the individual to life, liberty, secu
rity of the person"), and in any event each has
been held by this Court not apply to corporations
(respectively, National Anti-Poverty Organization
v. Canada (Attorney General), [1989] 3 F.C. 684
(C.A.); and New Brunswick Broadcasting Co.,
Limited v. Canadian Radio-television and Tele
communication Commission, [1984] 2 F.C. 410
(C.A.). On this basis the appellants argued that, as
a corporation, the respondent is not eligible for
public interest standing.
There is, indeed, a good case to be made for this
point of view. Irwin Toy involved an action for a
declaration that certain provisions of the Québec
Consumer Protection Act [R.S.Q. 1977, c. P-40]
were ultra vires, and it was in this context that the
Supreme Court held that the plaintiff, as a corpo
ration, had no standing to invoke section 7 of the
Charter. The only exemption the Court recognized
to this exclusionary rule was where the corporation
is itself accused under a penal law, an exemption it
had already recognized in R. v. Big M Drug Mart
Ltd. et al., [1985] 1 S.C.R. 295 (C.A.). In the
same vein, Tarnopolsky J.A. in R. v. Wholesale
Travel Group Inc. (1989), 70 O.R. (2d) 545
recently wrote for the Ontario Court of Appeal
that "it seems clear that Irwin Toy and Big M
Drug Mart, taken together, produce the proposi
tion that, while a corporation cannot rely upon s. 7
in circumstances such as an application for a
declaration that a law is invalid, it cannot be
committed under a law that violates it". [Empha-
sis added.]
Nevertheless, the matter is not free from doubt.
In Irwin Toy the corporation was so directly
affected by the legislation that penal (188 charges
of contravention of the Act), injunctive and con
tempt proceedings had been brought against it in
relation to its alleged violations of the legislation.
It was not therefore, seeking public interest stand
ing altruistically to defend the putative rights of
the public, but was engaged in protecting its own
interests as a corporation. It is not at all clear that
it would have been denied standing to make a
section 7 claim if it had been seeking to advance it
on behalf of the public as a whole. Its disability on
its own behalf does not necessarily disable it from
helping others.
In Smith, Kline & French Laboratories Limited
v. Attorney General of Canada, [1986] 1 F.C. 274,
at page 316 (T.D.); affd on other grounds [1987] 2
F.C. 359 (C.A.), leave to appeal refused, S.C.C.,
April 9, 1987 [[1987] 1 S.C.R. xiv], Strayer J. in
obiter seemed prepared to accept standing for
corporate plaintiffs in relation to section 15 of the
Charter "where no other possibility existed for
judicial review."
Moreover, in Energy Probe v. Canada (Attorney
General) (1989), 68 O.R. (2d) 449 (C.A.), the
Ontario Court of Appeal allowed a public interest
corporation standing in order to seek a declaration
of ultra vires relative to certain sections of the
Nuclear Liability Act [R.S.C., 1985, c. N-28], on
the ground that those sections were inconsistent
with sections 7 and 15 of the Charter. It is true
that the result may have been influenced by the
fact that some eleven individuals and two corpora
tions had engaged a single counsel to advance their
views, and the Court indicated that at least as far
as the municipal corporation was concerned, that
factor was material to the result. Nevertheless, it
took a broader view of the participation of the
public interest corporation. Carthy J.A. said for
the Court (at page 467):
The issue is ... whether a genuine interest in the validity of
legislation can be shown. Mr. Borowski had no direct or future
contingent interest in the abortion issue other than as a citizen
with an interest in constitutional behaviour. Would his status
have been differently considered if he had presented himself in
the role of "Borowski Inc.", a non-profit organization devoted
to issues related to abortion laws? I think not, and furthermore,
if in this case it was decided that the individuals have status but
the corporations do not, it would be a disservice to the purpose
of the exception in effectively bringing significant issues before
the court, by depriving one side of the litigation of the expertise
and resources needed to assure effective presentation.
If the City was the only applicant before the court other
considerations might apply, especially as to whether there is a
more effective manner of bringing the issue to the court, but
since all parties are represented by one counsel there cannot be
any detriment to the respondents by its inclusion, and there will
be some benefit by providing an increased potential for recov
ery of costs. In the circumstances, I would not treat the City
any differently than Energy Probe and, within the Borowski,
supra, principle, classify them both as having "a genuine
interest as a citizen in the validity of the legislation".
On balance, I am of the same mind. The deci
sion as to public interest status is, after all, a
discretionary one, and it seems to me that there
should therefore be no absolute rule of exclusion.
If an action by a corporation offers the only effec
tive means for judicial review of an issue, then I
believe it is within the reasonable exercise of judi
cial discretion to allow that action. Perhaps, as
Strayer J. may have wished to imply, it should be
scrutinized strictly in relation to the third criteri
on. But it should not be absolutely barred.
The present respondent is perhaps not a "public
interest corporation" in the same sense as the
corporate litigant in Energy Probe, but it seems to
me that no one could doubt that, in relation to the
legislation in question, its motivation is a public
interest one, based upon a profound concern for
the public welfare. As even the appellants admit
ted in their factum (paragraph 28) "the Respond-
ent has in general terms evinced the same kind of
`interest' in persons who claim to be refugees as
did the plaintiff in Borowski in the rights of
human foetuses." In my view, the respondent
should be recognized as having met the second
criterion, "a genuine interest as a citizen in the
validity of the legislation."
As to the first criterion, "a serious issue," sever
al of the cases have noted some overlap with the
broader issue of a reasonable cause of action. In
this case it seems to me that the very comprehen
siveness of the action lays prima facie claim to the
raising of a serious issue, subject to a more
detailed examination of the statement of claim.
For the moment at least, I am prepared to pass on
to the third criterion, which I see as the principal
battleground.
It is clear from the four Supreme Court deci
sions on standing that the character and ambit of
the legislation which is in question is crucial to the
determination of standing. In Thorson the Official
Languages Act [R.S.C. 1970, c. O-2] was found to
be "not a regulatory type of statute" but one that
was "both declaratory and directory" (at page
151). It created no offences and imposed no penal
ties. There were no duties laid upon members of
the public. Only the public service might be said to
be affected, and that apparently indirectly, in that
it was the public service that had to provide ser
vices in both official languages. This led Laskin J.
(as he then was) to the conclusion that (at
page 161):
[W]here all members of the public are affected alike, as in the
present case, and there is a justiciable issue respecting the
validity of legislation, the Court must be able to say that as
between allowing a taxpayers' action and denying any standing
at all when the Attorney General refuses to act, it may choose
to hear the case on the merits.
Scrutiny of the statute led the majority to the view
that the constitutionality of the statute would
never be subject to challenge if it were not chal-
lengeable by any taxpayer.
In McNeil there was a group directly regulated
by the Nova Scotia Theatres and Amusements Act
[R.S.N.S. 1967, c. 304], viz., film exchanges,
theatre owners, cinematograph operators and
apprentices. But the public was also being effec
tively regulated in its film-going. Laskin C.J.C.
summed it up this way (at page 271):
[J]oined to a regulatory scheme applicable to a manageable
group of entrepreneurs in the theatre and film distribution
businesses there is as well, and as a central piece, an apparently
unlimited power in the Board to determine what members of
the public may view in theatres or other places of public
entertainment.
Since the issue of validity does not fall for determination here
and, indeed, has not even been argued in relation to the
question of standing, I would not, in this case, go beyond the
tentative conclusion that there is an arguable case under the
terms of the challenged legislation that members of the Nova
Scotia public are directly affected in what they may view in a
Nova Scotia theatre, albeit there is a more direct effect on the
business enterprises which are regulated by the legislation. The
challenged legislation does not appear to me to be legislation
directed only to the regulation of operators and film distribu
tors. It strikes at the members of the public in one of its central
aspects.
In my view, this is enough, in the light of the fact that there
appears to be no other way, practically speaking, to subject the
challenged Act to judicial review, to support the claim of the
respondent to have the discretion of the Court exercised in his
favour to give him standing. [Emphasis added.]
Again, an analysis of the statute itself in its effect
on society led the Court to the conclusion that
there was "no other way, practically speaking," in
which the Act could ever be effectively challenged.
In Borowski the majority and minority agreed
on the principles and disagreed precisely on the
issue of who else might effectively challenge the
provisions of the Criminal Code dealing with abor
tion. Laskin C.J.C., this time in dissent, said (at
pages 584-585):
The only question that remains is whether, neither the Thorson
case nor the McNeil case being strictly applicable according to
the character of the legislation there and here, this is an
appropriate case for the Court to exercise its discretion to
accord standing. My reason for distinguishing the legislative
situation is that here there are persons with an interest in the
operation of s. 251(4), (5) and (6) who might challenge it as
offending the Canadian Bill of Rights. I refer to doctors and to
hospitals, both having a clearer interest in the operation of s.
251(4), (5) and (6) than does the plaintiff. Husbands who
might object to their pregnant wives seeking a therapeutic
abortion also have a clearer interest. It may be that in their
case there would be a dilemma, having regard to the inexorable
progress of a pregnancy. In short, even if the statutory require
ments for a therapeutic abortion were satisfied, it might be
difficult to initiate and exhaust the judicial processes to obtain
a ruling as to the compatibility of s. 251(4), (5) and (6) with
the Canadian Bill of Rights before the abortion or birth, as the
case might be, takes place. In principle, however, this should
not be preclusive; the point will have been decided at the
instance of a person having an interest and not at that of a
person having no interest other than as a citizen and taxpayer.
The Chief Justice added a further consideration
as well (at page 587):
The present case lacks concreteness despite the fact that it
raises a highly charged issue. Moreover, it appears to me that
to permit the issue to be litigated in as abstract a manner as
would be the case in having the plaintiff alone carry it against
two Ministers of the Crown would hardly do justice to it,
absent even any interveners who might, with the same obses-
siveness on the opposite side of the issue, argue for the valid
operation of the challenged provisions. Even accepting, as is
probable, that if standing was accorded to the plaintiff, other
persons with an opposite point of view might seek to intervene
and would be allowed to do so, the result would be to set up a
battle between parties who do not have a direct interest, to
wage it in a judicial arena.
The majority, speaking through Martland J.,
categorized the statute differently (at
pages 596-597):
The legislation under attack here is not declaratory or direc
tory as in the case of the Official Languages Act nor is it
regulatory as in the case of the Theatres and Amusements Act.
It is exculpatory in nature. It provides that in certain specified
circumstances conduct which otherwise would be criminal is
permissible. It does not impose duties, but instead provides
exemption from criminal liability. That being so, it is difficult
to find any class of person directly affected or exceptionally
prejudiced by it who would have cause to attack the legislation.
Doctors who perform therapeutic abortions are protected by
the legislation and would have no reason to attack it. Doctors
who do not perform therapeutic abortions have no direct inter
est to protect by attacking it, and, consequently, an attack by a
doctor in that category would be no different from that made
by any other concerned citizen. The same thing applies to
hospitals. A hospital which appoints a therapeutic abortion
committee has no reason to attack the legislation. A hospital
which does not appoint such a committee has no direct reason
to attack the legislation.
There is no reason why a pregnant woman desirous of
obtaining an abortion should challenge the legislation which is
for her benefit. The husband of a pregnant wife who desires to
prevent an abortion which she desires may be said to be directly
affected by the legislation in issue in the sense that by reason of
that legislation she might obtain a certificate permitting the
abortion if her continued pregnancy would be likely to endan-
ger her life or health and thus prevent the abortion from
constituting a crime. However, the possibility of the husband
bringing proceedings to attack the legislation is illusory. The
progress of the pregnancy would not await the inevitable
lengthy lapse of time involved in court proceedings leading to a
final judgment. The abortion would have occurred, or a child
would have been born long before the case had been finally
terminated, perhaps in this Court.
The legislation proposed to be attacked has a direct impact
upon the unborn human foetuses whose existence may be
terminated by legalized abortions. They obviously cannot be
parties to proceedings in court and yet the issue as to the scope
of the Canadian Bill of Rights in the protection of the human
right to life is a matter of considerable importance. There is no
reasonable way in which that issue can be brought into court
unless proceedings are launched by some interested citizen.
Martland J. repeated his conclusion in slightly
different words (at page 598):
There are in this case no persons directly affected who could
effectively challenge the legislation.
The majority's test is of course the third criterion
of Martland J. as set out at the beginning of this
section: "there is no other reasonable and effective
manner in which the issue may be brought before
the Court."
In Finlay, where the underlying substantive
issue revolved around federal-provincial cost-shar
ing arrangements, and the challenger was a person
in need within the meaning of the Canada Assist
ance Plan whose sole source of support was his
provincial social allowance (an interest which the
Court found fell just short of personal standing),
the Court (per Le Dain J.) again concluded (at
pages 633-634):
Here it is quite clear from the nature of the legislation in issue
that there could be no one with a more direct interest than the
plaintiff in a position to challenge the statutory authority to
make the federal cost-sharing payments.
The test which is applied in all of these cases is a
very limited one. Public interest standing will be
allowed only where there is no directly affected
group which could itself raise a challenge to the
legislation (Thorson, Finlay) or where, although
such a group exists, no member of the group is
thought likely to do so (Borowski). McNeil is
perhaps somewhere closer to Thorson and Finlay:
the group directly affected is not affected as to the
greater public issue, viz., film censorship; in rela-
tion to censorship, there is really no affected
group, or rather, everyone is equally affected.
In Energy Probe the Ontario Court of Appeal
perhaps went a tittle beyond the Supreme Court.
There was a group affected, viz., victims of a
nuclear accident whose claims would be limited by
liability limitations, limitation periods and proce
dural requirements. But this group would, in all
likelihood come into being, if at all, only in the
indefinite future. In the meantime, there was a
present danger, viz., an increase in the use of
nuclear energy and so of risk, and with respect to
this danger there was no affected group (at
pages 468-469):
In the case at hand we do have very specific allegations or
fact and very specific allegations of present threat to security of
the person. While the framework of the allegations under
headings (b), (c), and (d) relates to limits upon the potential of
future recovery and limitations periods that can only apply in
the future, the effect of those provisions is said to create a
present harm—more nuclear plants and more risk. Once that is
recognized then it is easy to conclude that "there is no other
reasonable and effective manner in which the issue may be
brought before the court".
When I see serious individuals, such as the appellants in this
case, presenting concerns that are of fundamental significance
to all citizens, I have no hesitation in concluding that this is not
an abuse of the public interest exception, but rather tends to
serve it very well. If the action should succeed and the Act be
declared in part inoperative, that declaration would serve the
immediate benefit of forcing both the industry and Parliament
to re-evaluate the risks, benefits, and policy alternatives related
to nuclear energy in the context of rights that have been
established through a ruling by the court.
Under close scrutiny Energy Probe turns out to be
an updated version of McNeil: there is no specially
affected group with respect to the principal public
issue.
The principles, it seems, then, are clear, and in
order to determine the advisability of public inter
est standing in this case, it will be necessary to
look closely at the legislation here in question.
II
The new Act provides for a slightly altered defini
tion of "Convention refugee", for new procedures
for the consideration of Convention refugee claim
ants, and, to consider their claims, for a new
Immigration and Refugee Board, divided into a
Convention Refugee Determination Division and
an Appeal Division.
In addition to refugee claimants themselves,
others who might be affected by the legislation are
Canadian citizens and residents who might become
liable to prosecution for their work in assisting
refugee claimants. This group could include
church members and members of the legal profes
sion. However, even these other persons would be
affected in relation to refugee claimants, and it is
clear that refugee claimants constitute the group
overwhelmingly affected by the legislation.
It was argued by the appellants that the new
Act is clearly a regulatory statute which, in the
ordinary course of its operation, is certain to pro
duce an abundance of real cases. Indeed, the Court
must take judicial notice of the fact that such real
cases are actually coming forward for judicial
review at the present time.
It was not denied by the respondent that the Act
is a regulatory statute, but the respondent contend
ed that in McNeil the Supreme Court granted
standing to challenge legislation even when others
were more directly affected by the regulatory
nature of the legislation. However, this argument
cannot be sustained, except in the limited sense
already seen, viz., that the others who were direct
ly affected were not so affected in relation to the
broadest public interest at stake. In the case at
bar, the broad public interest asserted by the
respondent, that of refugee claimants, is precisely
the same as the interest being brought forward by
the directly affected group itself.
The Motions Judge applied the third criterion of
public interest standing as follows (at
pages 11-13):
Finally, I am satisfied that there exists no reasonable, effec
tive or practical manner for the class of persons more directly
affected by the ... issues raised in the plaintiff's statement of
claim. There is little question that this new legislation has
accelerated the procedure for those persons making application
for refugee status in this country. Such applicants are subject to
a seventy-two hour removal order. In that short period of time
an applicant must consult with counsel; a procedure which in
itself may take a fair amount of time due to language barriers
and the difficulty of a solicitor establishing a proper solicitor-
client relationship with an individual who, in some instances,
may be from a country where human rights have been disre
garded and who is understandably slow to trust anyone in
authority.
Even accepting the defendants' argument that a refugee who
has had a removal order made against him may seek a stay or
injunction from the Federal Court in order to challenge the
removal order, such an injunction cannot be considered by the
Court before a minimum of ten days has elapsed from the time
of filing the applicant's materials. Consequently, the harm to
the refugee will have already occurred and any remedy granted
by the Court may be illusory given that the refugee will be
under the jurisdiction of another state.
As I view this case, it closely parallels the situation which
existed in Borowski. Certainly there were persons more directly
affected by the abortion legislation in question than Mr.
Borowski himself. In his decision, Martland J. uses the example
of the husband of a pregnant wife who wished to prevent an
abortion. [The Motions Judge then quotes from Martland J. in
Borowski].
In my view, the plaintiff in this case has also met the test and
status is hereby accorded to it so that it may proceed with its
action.
The respondent, following the Motions Judge,
also relied on Borowski for the proposition that
public interest standing can be recognized even if
there is someone with a more direct interest. But
that can be so only where the Court, as in Borow-
ski, believes that challenges from the more directly
affected group are unlikely, whereas in the case at
bar this Court must take judicial notice of the fact
that to our knowledge such challenges are coming
forward daily.
The fundamental problem with the approach
taken by the learned Motions Judge is that he took
the statement of claim as a whole rather than in all
its individual allegations. Such an approach can be
justified, it seems to me, only where the statement
of claim asserts closely related causes of action.
Here, in the statement of claim itself the
respondent urged that the legislation needed to be
dealt with in its totality because it is "fundamen-
tally constitutionally flawed". That, as I have said,
cannot as such be a reason for standing unless the
issues would not otherwise be likely to come for-
ward. But in oral argument the respondent pre
sented this contention in more arguable form, viz.,
that its statement of claim constituted an internal
ly integrated attack on the legislation such as none
of the directly affected parties would be able to
mount, particularly since it is able to proceed by
action, rather than by administrative review, and
so would be able to build a factual foundation for
its integrated claim.
This contention necessitates an examination of
the statement of claim itself.
III
It does not in fact require a close study of the
statement of claim to conclude that it cannot stand
as an integrated attack on the legislation. Not only
are no real principles of integration made appar
ent, but a number of the claims are palpably
without merit.
To begin with, the thrust of the declaration
sought by the respondent as a public interest liti
gant is and must be a general one, that is, that a
provision is unconstitutional as applied to all
refugee claimants, or at least to all those within
the reach of the provision. A case that exists only
in hypothetical or particular circumstances might
well be appropriate for a personally affected
claimant caught in those circumstances, but is not
adequate for public interest standing. Second, the
alleged violation must arise because of a conflict
with the Constitution itself, not with the Canadian
Bill of Rights or alleged international standards,
since that is what section 52 requires. I would
accordingly strike all the allegations based on the
Canadian Bill of Rights or international stand
ards.
More specifically, in paragraph 3(d) of the
statement of claim the respondent argued as
follows:
3....
(d) Clause 18, sections 71(4) and (5) of An Act to Amend
the Immigration Act, 1988, c. 35 fail to ensure that a person
under the age of 18 years or unable to appreciate the nature
of the proceedings is guaranteed a right to counsel, in that
they fail to require the appointment of a guardian and they
permit the Refugee Division to designate a person at the
Board's expense to represent a minor or incompetent person
in the proceedings before the Division who need not be
adequately trained and experienced in the law relating to
immigration and refugee matters.
However, this claim reflects a complete misunder
standing of subsections 69(4) and (5) of the Act
[as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18].
These provisions ensure the appointment of a
"guardian ad litem" for claimants under 18 or
who are unable to appreciate the nature of the
proceedings. Such an appointment is in supple
ment to, and not in derogation of, the right to
counsel provided by subsection 69(1) [as am.
idem] of the Act. The attack is therefore entirely
without substance.
Second, in paragraph 5(b) of the statement of
claim, the respondent contended, as follows:
5....
(b) Clause 14, sections 47(1), 48(1), 48.01(2), 48.01(6),
48.02, and 48.03 of An Act to Amend the Immigration Act,
1988, c. 35 provide that an immigration adjudicator appoint
ed under the provisions of the Public Service Employment
Act and the Immigration Act, 1976 is the decision maker
who is the presiding officer at the inquiry or hearing concern
ing a refugee claim and is one of the two decision makers
statutorily authorized to determine whether a refugee seek
ing protection in Canada may proceed to a full hearing
before the Refugee Division of the Immigration and Refugee
Board. An immigration adjudicator is not independent and
impartial, thereby depriving the refugee of the right to a fair
hearing in accordance with the principles of fundamental
justice ....
This issue, however, has already been decided
against the respondent's point of view by this
Court in Mohammad v. Minister of Employment
and Immigration (1988), 55 D.L.R. (4th) 321;
leave to appeal refused, S.C.C., April 27, 1989
[[19891 2 S.C.R. xi]. This Court cannot reason
ably be asked to reopen the question of the in
dependence of adjudicators a little more than a
year after having decided the issue.
Third, in paragraph 5(c) of the statement of
claim, the respondent made the following argu
ment:
5....
(c) Clause 14, sections 48(1), 48.01, 48.02 and 48.03 of An
Act to Amend the Immigration Act, 1988, c. 35 provide that
a member of the Refugee Division appointed under the
provisions of the Immigration Act, 1976 is one of the two
decision makers who is statutorily authorized to determine
whether a refugee seeking protection in Canada may proceed
to a full hearing before the Refugee Division of the Immigra
tion and Refugee Board. A member of the Refugee Division
is not independent and impartial, in that he/she does not have
security of tenure pursuant to section 63(1) and (2) of the
said Act and is dependent on the Governor in Council for
renewal and continuation of his/her appointment thereby
depriving a refugee of the right to a fair hearing in accord
ance with the principles of fundamental justice. At present,
members of the Refugee Division hold appointments for
periods of one to 5 years.
Essentially the same argument is made by the
respondent in paragraph 11(a). This issue is in my
view a foregone conclusion in the light of Sethi v.
Canada (Minister of Employment and Immigra
tion), [1988] 2 F.C. 552 (C.A.).
Fourth, in paragraph 5(f) of the statement of
claim, the respondent says:
5....
(J) Clause 14, section 48.01(7) of An Act to Amend the
Immigration Act, 1988, c. 35 grants the Minister of Employ
ment & Immigration, who plays a prosecutorial role in the
initial hearing or inquiry, the right to determine in that same
hearing or inquiry whether a credible basis for the refugee
claims exists (this power is presently delegated to the case
presenting officer who is the prosecutor in the proceedings).
The Minister and his delegate are thereby granted an
adjudicative power of determination and they do not grant
the refugee a hearing prior to the exercise of the power. The
refugee is thereby denied a hearing before an independent
and impartial decision maker, to the detriment of those
refugees who have not been determined by the Minister to
have a credible basis for their claim.
The Court decided a similar issue in Kindler v.
MacDonald, [1987] 3 F.C. 34 (C.A.); where it
found that a provision that essentially is made for
the benefit of an immigrant claimant rather than
against gives rise to no issue of fairness.
These examples, it seems to me, go to show that
the statement of claim, far from being a tightly
woven case of meritorious argument, is rather a
loosely assembled congeries of separate assertions,
many entirely lacking in merit.
In addition, the part of the claim concerning
criminal sanctions in relation to humanitarian
assistance to refugees (paragraph 15 generally,
except perhaps for 15(b), to which I shall return),
raises issues which can and would be brought
forward by any resident of Canada who might ever
be charged under these provisions of the Act.
Finally, other parts of the statement of claim
(notably paragraphs 6(c) and 7(a)) are at best
premature, since they challenge what may possibly
be done by the Government under regulations
made pursuant to paragraph 114(1)(r) of the Act
but as to which there are as yet no regulations, and
therefore no context in which to consider issues of
constitutionality.
All in all, I can only conclude that the Motions
Judge was in error in deciding that the respondent
should be given standing to pursue the allegations
in the statement of claim taken as a whole.
Nevertheless, in light of this Court's power
under paragraph 52(b)(i) of the Federal Court Act
[R.S.C., 1985, c. F-7] to give the judgment that
the Trial Division should have given, the question
should be asked whether there are some allega
tions in the statement of claim with respect to
which the respondent should be granted standing,
and, if so, whether they raise a reasonable cause of
action.
As to the latter, it is trite law that the mere
invocation of the Charter does not automatically
raise a triable issue. The applicable law was
referred to by the Supreme Court of Canada in
several recent cases. In Attorney General of
Canada v. Inuit Tapirisat of Canada et al., [1980]
2 S.C.R. 735, at page 740, Estey J. stated that a
court should strike out a claim "only in plain and
obvious cases and where the court is satisfied that
'the case beyond doubt'." The onus is on the party
seeking to strike. In Operation Dismantle Inc. et
al. v. The Queen et al., [1985] 1 S.C.R. 441, at
pages 449-450, Dickson C.J. endorsed what was
said by Wilson J. (at pages 486-487) in the same
case:
The law then would appear to be clear. The facts pleaded are
to be taken as proved. When so taken, the question is do they
disclose a reasonable cause of action, i.e. a cause of action
"with some chance of success" (Drummond-Jackson v. British
Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J.
put it in Dowson v. Government of Canada (1981), 37 N.R.
127 (F.C.A.), at p. 138, is it "plain and obvious that the action
cannot succeed".
In applying this principle to the allegation in the
statement of claim for which standing was grant
ed, I take the view that allegations are so specula
tive as not to be reasonable where they depend
upon the context of regulations under paragraph
114(1)(r) of the Act which have not yet been
made and may never be made. Hypotheticals of
that type do not in my view disclose a cause of
action with any chance of success, but are, at t best,
premature.
IV
Paragraph 3 alleges that specific provisions of the
legislation contravene section 7 and paragraph
10(b) of the Charter by limiting or denying a
person's right to counsel. In general, constitutional
challenges to limitations on the right to counsel
may not easily be made by affected claimants, and
so might be appropriate for standing by a public
interest litigant. However, paragraphs 3(b) and
3(d) are based on unreasonable constructions of
the statute, and paragraph 3(a) does not raise a
section 52 issue.
This leaves only the claim in paragraph 3(c) to
consider. It challenges subsection 30(3) [as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 9] of the Act as
requiring the availability of a barrister or solicitor
to take instructions from the claimant within 24
hours after the making of a removal order. Given
the shortness of time allowed for consultation, it
might be difficult for a refugee to mount an
adequate challenge to the very time period. It is
also not evident that the issue would not be
arguable. I would allow this claim to proceed as to
the section 7 challenge, but not on the basis of
paragraph 10(b), since such an infringement
would pertain only to detainees, not to all refugee
claimants.
Paragraph 4 alleges that specific provisions of
the legislation violate sections 7, 9 and 12 of the
Charter by subjecting specified classes of persons
to cruel and unusual treatment and punishment
and by providing for their mandatory and arbi
trary detention. These classes of persons could
effectively raise any appropriate issues on their
own. Moreover, the persons affected by the chal
lenged provisions are not refugees as such but
rather convicted criminals and subversives, catego
ries for which the respondent did not claim public
interest status in paragraph 2(b).
By paragraph 5 the respondent alleges that cer
tain provisions of the legislation contravene section
7 of the Charter through their failure to provide a
fair hearing in relation to the making of a refugee
claim in accordance with the principles of funda
mental justice. These claims could all easily be
made by refugee claimants themselves.
Paragraph 6 alleges that certain provisions con
travene section 7 of the Charter through their
failure to provide substantive protection of a
refugee's life, liberty and security of the person
that accords with the principles of fundamental
justice. These provisions - would exclude certain
claimants from having their claims considered,
either temporarily (6(a)) or permanently (6(b)
(f)), in the determination process.
Precisely by reason of the fact that such claim
ants would have no access to the statutory refugee
process and might easily be removed from Canada
without having any real opportunity to challenge
the legislation, it seems to me that there would be
"no other reasonable and effective manner" in
which these issues might be brought forward for
judicial review than by allowing the respondent
status to challenge the relevant legislative provi
sions in this declaratory action.
However, the allegations in paragraphs 6(b) and
6(c) are entirely speculative, as they depend upon
the promulgation of regulations under paragraph
114(1)(a) of the Act which would limit refugee
claims to those from certain countries.
The claims in paragraphs 6(d) — (f) all turn on
the existence of particular circumstances which
could not be taken into account in an action for a
general declaration under section 52.
In paragraph 6 this leaves only paragraph (a). It
refers initially to subsection 43(4) [as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 14] of the Act,
which provides for a refugee claimant residing or
sojourning in the United States to be directed back
to that country pending the availability of a
member of the Refugee Division to take part in an
inquiry. In my opinion this provision would be
difficult for claimants to challenge on their way
out of the country, and public interest standing
would be appropriate. Paragraph 6(a) goes on to
make a similar claim with respect to the unavaila-
bility, respectively, of a senior immigration officer
or an adjudicator under subsections 20(2) and
23(5). These latter provisions are not restricted to
refugee claimants, but they do apply to all claim
ants who find themselves in a position where immi
gration officials are unavailable. Standing would
again be appropriate. The challenge to paragraph
85(1)(b) [as am. by R.S.C., 1985 (4th Supp.), c.
28, s. 20] of the Act, since it is consequential upon
subsections 43(4), 20(2) and 23(5), should also be
allowed to proceed. I also find arguable causes of
action.
In paragraph 7 the respondent claims that spe
cific provisions contravene section 15 of the Chart
er by failing to ensure that all refugees seeking
recognition and protection in and by Canada as
Convention refugees are treated equally before and
under the law and that they have equal protection
and equal benefit of the law without discrimina
tion. Since the effect of the challenged provisions
is to deny certain refugee claimants the right to
have their claims determined at all, these are
appropriate matters for public interest standing.
However, in my view they are speculative for the
same reason as paragraphs 6(b) and (c).
Paragraph 8 claims that specific provisions of
the Act contravene section 7 of the Charter
through their failure to provide substantive protec
tion of life, liberty and security of the person.
Since those affected are persons who have been
finally determined to be Convention refugees, but
have nevertheless to surmount additional hurdles,
there is no reason for public interest standing,
since, as persons already in Canada, they can
adequately litigate on their own behalf.
Paragraph 9 claims that certain of the provi
sions already raised in paragraph 8 contravene
section 15 of the Charter. Again, and for the same
reason, there is no reason for public interest
standing.
In paragraph 10 the respondent claims that
certain provisions relating to removal from Canada
contravene section 7 of the Charter. Paragraph
49(1)(b) [as am. by R.S.C., 1985 (4th Supp.), c.
28, s. 16] of the Act, which is challenged by
paragraph 10(a), stays the execution of a removal
order, where the claimant has the right to seek
leave to review the removal order under the Feder
al Court Act, only for 72 hours after the time the
order is pronounced. Since such a short period may
be inadequate for the claimant to properly instruct
counsel, this seems to me to be an appropriate
claim for public interest standing. I also find that
it states a reasonable cause of action. However,
assuming there is no issue as to adequate time for
consultation, claimants' other grievances as to re
moval, as set forth by paragraphs 10(b) and (c),
could be effectively brought by the claimants
themselves.
Paragraph 11 claims contravention of section 7
of the Charter through the Act's failure to provide
a fair hearing before the Immigration and Refugee
Board. I have already dealt with paragraph 11(a).
Any reasonable cause of action raised by para-
graph 11 could effectively be raised by any claim
ant whose alleged rights were infringed.
In paragraph 12 the respondent claims the con
travention of section 7 on the ground that subsec
tion 70(3) (as am. by R.S.C., 1985 (4th Supp.), c.
28, s. 18], of the Act precludes a Convention
refugee from appealing to the Appeal Division on
compassionate or humanitarian grounds. This is a
claim that could be effectively made by any
refugee claimant affected.
Paragraph 13 claims that specific provisions of
the legislation contravene section 15 of the Chart
er. In my view no part of this claim can more
effectively be raised by a public interest plaintiff
than by directly affected claimants.
Paragraph 14 claims contravention of both sec
tions 7 and 15 of the Charter by certain provisions
of the Act. Paragraphs 14(a) and (b) relate to
limitations on the right to judicial review by the
Federal Court of Canada and the Supreme Court
of Canada. Such issues can adequately be raised
by refugee claimants themselves.
Paragraph 14(d) attacks the absence of review
on the merits from negative decisions by either
division of the Board. Similarly, this is an issue
which can effectively be raised by claimants
themselves.
Finally, paragraph 14(c) challenges the consti
tutionality of paragraphs 49(1)(a) [as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 16] and (b) of
the Act. Paragraph 49(1)(a) of the Act permits
the removal of a refugee claimant with a right to
appeal to the Appeal Division 24 hours after being
informed of the right to appeal pursuant to section
36 of the Act where a notice of appeal is not filed
within the 24 hours. Paragraph 49(1)(b) of the
Act permits the removal of a claimant with a right
to file an application or other proceeding under
section 18 or 28 of the Federal Court Act 72 hours
after the order of removal is pronounced.
The time limits may well be inadequate to allow
time for sufficient consultation with counsel to
determine the best course of action, including a
challenge to the limits themselves. The consider
ations are similar to those in relation to paragraph
3(c). This is in my opinion both a proper claim for
public interest standing and a reasonable cause of
action.
In paragraph 15 the respondent claims viola
tions of sections 2, 7, 8 and 10(b) of the Charter in
relation to certain criminal sanctions, including
those which criminalize the aiding and abetting of
the entry into Canada of persons not in possession
of required visas, passports or travel documents. In
my analysis all such provisions can effectively be
challenged by the claimants themselves or by the
other persons who may also be charged with
infractions, with the possible exception of the
claim in paragraph 15(b) to the effect that, by
deterring lawyers from giving proper advice to
undocumented refugees through threat of sanc
tions, the Act may deny claimants the right to
counsel. This could found a right of standing, but
cannot constitute a reasonable cause of action
since the claimants affected would all be non-citi
zens outside Canada with no claim to admission,
and therefore beyond the scope of the Charter.
In paragraph 16 the respondent claims that the
transitional provisions of the legislation contravene
sections 7 and 15 of the Charter by not providing
that persons who had claimed Convention refugee
status before the commencement date of the legis
lation be allowed to complete their claims under
the pre-existing law. It is alleged that such persons
are unfairly affected by the retrospectivity of the
amending legislation and are denied the equal
benefit of the law accorded to other persons of
similar standing who were able to have their
claims concluded before the commencement date.
In my view there is no need for public interest
standing in relation to this paragraph.
V
In the result, the appeal should be allowed except
as to the allegations of paragraphs 3(c) in part,
6(a), 10(a) and 14(c). On those claims alone the
action should be allowed to proceed, provided that
within 30 days the respondent files a further
amended statement of claim limited to the allega
tions in those claims relevant to the relief sought,
viz. a declaration that the particular provisions of
the Act are inconsistent with the Constitution and
of no force and effect under subsection 52(1) of
the Constitution Act, 1982. This amended state
ment of claim should identify those provisions only
by their correct numeration in the consolidated
Immigration Act. 4
Given the divided success, the appellants should
be entitled to recover one-half at their costs in this
Court as well as in the Trial Division.
PRATTE J.A.: I agree.
MAHONEY J.A.: I agree.
4 The use by the respondent of the clause numbers from the
Parliamentary Bills creates confusion and, worse, the section
numbers those Bills employed are not always exact.
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.