Soukhaniouk v. Canada ( Minister of Employment and Immigration )
IMM-3537-93
McKeown J.
28/9/94
5 pp.
Application for judicial review of CRDD decision applicants, citizens of Ukraine, not Convention refugees -- Claims heard by normal two-member panel, one member leaving Board before decision issued -- Applicant not consenting to single member determining claim as contemplated by s. 69.1(8) -- Immigration Act, s. 63(2) providing where member unable to take part in disposition of matter, remaining members, if any, may make disposition -- S. 69.1(7) providing two members constituting quorum -- S. 69.1(8) providing one member may hear, determine claim if claimant consenting thereto -- S. 63 referring specifically to both Refugee and Appeal Divisions -- Given plain meaning of words, and Interpretation Act, s. 33(2), "members" including both singular and plural -- Alternatively mischief rule applies -- Parliament seeking to remedy situation where person participating in hearing, but unable to participate in disposition -- If plural of "members" interpreted as meaning Appeal Division or hearing of Refugee Division under s. 69.2, for which three members constituting quorum, no effect given to complete reading of s. 63(2) -- Parliament intending to permit decision to be given where hearing completed and only disposition of hearing remaining -- In Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.), Mahoney J.A. allowing appeal on basis decision made by only one of two members of Refugee Division hearing claim -- No statement in record therein as to why matter decided by one member -- Here decision clearly stating claim decided by one member as other leaving Board -- Reasons for decision disclosing why s. 63(2) properly engaged -- Application dismissed -- Effect should be given to s. 63(2) and decision of single member upheld -- Serious question of general importance: whether s. 63(2) permitting single member of Refugee Division to make negative determination of Convention refugee claim where claimant not consenting to single member determining claim as contemplated by s. 69.1(8) -- Question presuming complete statement of material circumstances relating to second member's inability to participate in decision put on record or in reasons for decision -- Immigration Act, R.S.C., 1985, c. I-2, ss. 63(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 69.1 (as enacted idem; S.C. 1992, c. 49, s. 60), 69.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61) -- Interpretation Act, R.S.C., 1985, c. I-21, s. 33(2).