74-A-346
Veronica Mills (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, December 2, 1974.
Immigration—Appeal Board dismissing appeal—Applica-
tion for re-opening appeal to hear evidence—Dismissal by
Board of application—No appeal from Board to Court of
Appeal—Immigration Appeal Board Act, R.S.C. 1970, c.
1-3, ss. 14, 15, 23—Federal Court Rule 324.
After the Immigration Appeal Board dismissed her appeal,
the applicant applied to the Board for a re-opening of the
hearing to hear new evidence under section 15 of the
Immigration Appeal Board Act. The Board refused the
application. The applicant, in writing under Rule 324, sought
leave to appeal to the Court of Appeal.
Held, the application should be dismissed. The question
was whether the applicant was seeking to appeal "from a
decision of the Board on an appeal", within section 23(1) of
the Immigration Appeal Board Act. There was a right of
appeal from a decision under section 15, as such a decision
was part of the decision on the appeal from deportation
under section 14: Boulis v. Minister of Manpower and
Immigration [1974] S.C.R. 875. But that right could not be
extended to the present case, where an appeal was sought
from a refusal by the Board to grant an application to
re-open the hearing for the purpose of hearing new evidence
under section 15.
APPLICATION.
COUNSEL:
F. H. Zemans for applicant.
G. R. Garton for respondent.
SOLICITORS:
Parkdale Community Legal Services,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
JACKETT CJ.: The question in this case is
whether the Court has jurisdiction under section
23 of the Immigration Appeal Board Act to
entertain an appeal from a decision of the Immi
gration Appeal Board dismissing an application
to re-open the hearing of an appeal in the exer
cise of the power of the Board recognized by
the Supreme Court of Canada in Boulis v. Min
ister of Manpower and Immigration' (after it
has dismissed an appeal and refused to exercise
its section 15 powers) until the deportation
order has actually been executed "to re-open an
appeal, hear new evidence and, if it sees fit to
do so, to revise its former decision and exercise
its discretion under section 15". 2
1 [1974] S.C.R. 875.
2 See sections 14 and 15 of the Immigration Appeal
Board Act:
14. The Board may dispose of an appeal under section 11
or section 12 by
(a) allowing it;
(b) dismissing it; or
(c) rendering the decision and making the order that the
Special Inquiry Officer who presided at the hearing
should have rendered and made.
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation
pursuant to paragraph 14(c), it shall direct that the order be
executed as soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident
at the time of the making of the order of deportation,
having regard to all the circumstances of the case, or
(b) in the case of a person who was not a permanent
resident at the time of the making of.the order of deporta
tion, having regard to
(i) the existence of reasonable grounds for believing
that if execution of the order is carried out the person
concerned will be punished for activities of a political
character or will suffer unusual hardship, or
(ii) the existence of compassionate or humanitarian
considerations that in the opinion of the Board warrant
the granting of special relief,
direct that the execution of the order of deportation be
stayed, or quash the order or quash the order and direct the
grant or entry, or landing to the person against whom the
order was made.
(Continued on next page)
The right of appeal to this Court from a
refusal to re-open exists, if it exists at all, under
section 23(1) of the Immigration Appeal Board
Act, which reads:
23. (1) An appeal lies to the Supreme Court of Canada on
any question of law, including a question of jurisdiction,
from a decision of the Board on an appeal under this Act if
leave to appeal is granted by that Court within fifteen days
after the decision appealed from is pronounced or within
such extended time as a judge of that Court may, for special
reasons, allow.
(2) The Governor in Council may make rules governing
the practice and procedure in relation to applications for
leave to appeal and appeals to the Supreme Court of Canada
pursuant to this section, and such rules shall be binding
notwithstanding any rule or practice that would otherwise be
applicable.
(3) No order as to costs shall be made in respect of an
application for leave to appeal or an appeal to the Supreme
Court of Canada pursuant to this section.
Once the Board has re-opened the appeal,
heard the new evidence and rendered its judg
ment refusing to exercise its powers under sec
tion 15, there is a right of appeal from such
judgment which is a decision under section 15,
the powers under which may be exercised
"Where the Board dismisses an appeal against
an order of deportation ...." This was so held
(Continued from previous page)
(2) Where, pursuant to subsection (1), the Board directs
that execution of an order of deportation be stayed, it shall
allow the person concerned to come into or remain in
Canada under such terms and conditions as the Board may
prescribe and shall review the case from time to time as it
considers necessary or advisable.
(3) The Board may at any time
(a) amend the terms and conditions prescribed under
subsection (2) or impose new terms and conditions; or
(b) cancel its direction staying the execution of an order
of deportation and direct that the order be executed as
soon as practicable.
(4) Where the execution of an order of deportation
(a) has been stayed pursuant to paragraph (1)(a), the
Board may at any time thereafter quash the order; or
(b) has been stayed pursuant to paragraph (1)(b), the
Board may at any time thereafter quash the order and
direct the grant of entry or landing to the person against
whom the order was made.
and see per Abbott J. at page 582 read with Maitland J. at
page 590. [This is evidently a reference to Grillas v. Minister
of Manpower and Immigration [1972] S.C.R. 577, on which
the Boulis case was based—Ed.]
in respect of the former jurisdiction of the
Supreme Court of Canada in Boulis v. Minister
of Manpower and Immigration 3 which right of
appeal was expressed in the same terms. In my
view, however, that decision applies only to
establish that there is a right of appeal from a
decision under section 15, which decision is part
and parcel of the decision on the appeal. The
Supreme Court of Canada did not have before
it, in the Boulis case, a question as to whether
there was an appeal to that Court from a refusal
by the Board to grant an application to re-open
the hearing for the purpose of hearing new
evidence under section 15 of the Immigration
Appeal Board Act; and, in my view, what was
said there should be read as referring to the
matter that was before the Court, a matter that
clearly fell within section 23 of the Immigration
Appeal Board Act, as it then was, and should
not be read as referring to a decision to re-open
a hearing, a matter which cannot, in my view, be
taken as falling within the words "a decision .. .
on an appeal" or any meaning that can fairly be
attributed to those words in the ordinary use of
language.
I would dismiss this application for leave to
appeal.
* * *
THURLOW J.: With some doubt, I agree.
* * *
PRATrE J.: I agree.
3 [1974] S.C.R. 875.
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.