A-268-74
Dario Pennacchio (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, November 12, 1974.
Jurisdiction—Immigration—Deportation order—Applica-
tion for order setting aside, on consent—Material neces-
sary—Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s.
23—Federal Court Act, s. 52(c), Federal Court Rule 324.
The general powers of the Court of Appeal are set in
section 52 of the Federal Court Act but the powers are
limited where appeals are taken from the decisions of the
Immigration Appeal Board by section 23 of the Immigration
Appeal Board Act. There is no objection in principle to a
consent judgment being given where the judgment appealed
from is founded on error of law or jurisdiction (grounds of
appeal provided in section 23 of the Immigration Appeal
Board Act). If the parties agree that the judgment below was
open to such an objection and that it should be set aside
accordingly, the substance of the objection and the facts
giving rise to it should be set out in the consent, with some
reference to where such facts appeared in the record before
this Court. The order of this Court should set out succinctly
the reason why this Court adjudges that the judgment
appealed from should be set aside.
APPLICATION in writing under Rule 324.
COUNSEL:
D. C. Besant for appellant.
H. Erlichman for respondent.
SOLICITORS:
Amourgis & Amourgis, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
THURLOW J.: In this appeal an application has
been made pursuant to Rule 324 for an order
allowing the appeal, setting aside the order
under appeal, and remitting the matter to the
Immigration Appeal Board to be re-heard. In
support of the application a consent in the same
terms signed by the solicitors for both parties
has been filed. This raises a question as to when
a judgment in such an appeal may be given on
consent.
Under section 52(c) of the Federal Court Act,
on an appeal of this kind, this Court has juris
diction to give the decision that should have
been given by the Board or to refer the matter
back for determination in accordance with such
direction as the Court considers appropriate.
The jurisdiction of the Court to hear and deter
mine appeals from decisions of the Immigration
Appeal Board is not, however, general. It is
limited by section 23 of the Immigration Appeal
Board Act to appeals on questions of law or
jurisdiction.
There is, in my opinion, no objection in prin
ciple to a judgment on such an appeal being
given on consent where the judgment appealed
from is founded on an error of law or jurisdic
tion. But it seems to me that where the appeal is
to be allowed the facts which raise the question
of law or jurisdiction or show the error of law in
respect of which the appeal is to be allowed
must form part of the record of this Court. Such
facts will in most cases appear from the record
of proceedings of the Board and when they do a
brief reference to what appears therefrom as
showing an error of law will be sufficient to
show the basis on which this Court proceeds.
But where the necessary facts do not appear
from the Board's record they must be estab
lished by some other means, including affidavits
as to what has transpired.
Apart from the necessity of such facts as the
basis for this Court's intervention it appears to
me that whenever the judgment of this Court is
that the matter is to be referred back, whether
with or without specific directions, a statement
of the reason for setting aside the decision,
either in reasons for judgment of this Court or
in the judgment itself is necessary to ensure that
the Board is informed of the basis of this
Court's judgment and of the error which vitiated
the Board's decision.
In this case the record or some part of the
record of the Immigration Appeal Board was
before the Court on the application for leave to
appeal but nothing in the record of the present
appeal or in the consent or the proposed order
gives any indication of any respect in which the
judgment appealed from is objectionable in
point of law.
If the parties are in agreement that the judg
ment appealed from is open to such an objec
tion and that the judgment should on that
account be set aside the substance of the objec
tion and the facts giving rise to it should, as it
seems to me, be set out in the consent, with
some reference to where such facts appear in
the record before this Court, and the order of
this Court should set out succinctly the reason
why this Court adjudges that the judgment
appealed from should be set aside. This, as I see
it, would serve both to show the jurisdiction of
this Court to intervene and at the same time
apprise the Board of what this Court considered
to be erroneous in the Board's decision.
The present application may be re-submitted
on further materials as indicated.
* * *
JACKETT C.J.: I concur.
* * *
PRATTE J.: I concur.
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.