Fan v. Canada ( Minister of Citizenship and Immigration )
IMM-1537-97
Hugessen J.
19/8/98
7 pp.
Application for declaration Immigration Regulations, 1978, s. 2 definition of "adopted" ultra vires Parliament of Canada-Application to sponsor child adopted in China pursuant to Chinese law as immigrant to Canada refused-Applicants not bringing present proceedings until almost one year later without obtaining extension of time-Federal Court Act, s. 18.1(2) permitting application for judicial review "in respect of" decision or order of federal board, commission or other tribunal within 30 days after decision or order communicated to party directly affected thereby-"In respect of" broad enough to encompass relief sought herein-Application out of time-Also not application within meaning of s. 82.1(2), "with respect to application to visa officer", thus not enjoying exemption from leave provided by s. 82.1(2)-No leave obtained herein-No merit to submission definition of "adopted" trenches upon exclusive provincial jurisdiction to legislate with regard to adoption-Regulations, s. 2 about immigration, not adoption-Within federal competence under Constitution Act, 1867, s. 91(25): "Naturalization and Aliens"-Definition of "adopted" in s. 2 not altering civil status of persons to whom applies-Applicants' child simply not able to enter Canada as adopted child-Definition of "adopted" in Immigration Regulations not impacting in any way upon application of provincial legislation-Adopted child will enjoy all rights flowing to adopted child-No question certified-Since application out of time, proposed question would not be determinative and Court of Appeal would be simply asked to give obiter opinion as to correctness of obiter opinion-Extension of time not justified since no merit to constitutional question-Immigration Regulations, 1978, SOR/78-172, s. 2 "adopted" (as am. by SOR/93-44, s. 1)-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5)-Immigration Act, R.S.C., 1985, c. I-2, s. 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; 1992, c. 49, s. 73)-Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(25).