T-3201-78
Michael Holden (Appellant)
v.
Marcil Levesque and Minister of Employment and
Immigration Canada (Respondents)
and
Deputy Attorney General of Canada (Mis -en-
cause)
Trial Division, Marceau J.—Montreal, September
18; Ottawa, September 21, 1978.
Immigration — Application for order requiring respondents
to hear and dispose of application for work permit extension in
context and according to Act and Regulations — Application
denied on ground that new Regulations precluded possibility
of granting extension — Whether or not interpretation adopted
by officer correct — Immigration Act, 1976, S.C. 1976-77, c.
52 — Immigration Regulations, 1978, SOR/78-172.
APPLICATION.
COUNSEL:
Julius H. Grey for appellant.
Suzanne Marcoux-Paquette for respondents.
SOLICITORS:
Julius H. Grey, Montreal, for appellant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: Applicant, who is an American
citizen, is a musician. He has performed in
Canada for some time as a member of a group
calling itself the Fantasia Group. On June 19,
1978 he went to the office of the Department of
Employment and Immigration in Montreal and
applied to an immigration officer for an extension
of his work permit, which was about to expire. His
application was denied on the spot and without
further consideration: the officer was of the opin
ion that a provision of the Regulations, SOR/78-
172, just recently adopted pursuant to the new
Immigration Act, 1976, S.C. 1976-77, c. 52,
namely subparagraph 20(5)(c)(ii), precluded any
possibility of its being granted.
Applicant is here objecting that the new Regula
tions, which are applicable to him, cannot be
interpreted as automatically barring an extension
of his work permit, and he prays the Court to
make an order requiring respondents to hear and
dispose of his application in the context and
according to the requirements of the relevant
provisions of the Act and Regulations.
The application therefore raises strictly a ques
tion of statutory interpretation. The facts on which
it is based are not in dispute and counsel for the
respondents admitted that if the interpretation
adopted by the latter is found to be incorrect, the
application should be allowed.
The sections of the Regulations which are at
issue are sections 18, 19 and 20, which deal with
the granting of work permits. For present purposes
it is only necessary to know the first two in outline.
Section 18 sets forth the rule that an individual
who is not a Canadian citizen or permanent resi
dent must obtain a work permit in order to work in
Canada, and he must naturally meet all the condi
tions of such a permit. Section 19, in its first
subsection, lists a series of exceptions to the gener
al rule (a diplomat, consular officer, practising
clergyman, employee of a news company, repre
sentative of a foreign business, member of an
athletic team and so forth); in its second subsec
tion it provides that these persons who are exempt
ed from obtaining a permit only benefit from the
exemption for their essential employment; finally,
in its third subsection, it sets forth the cases or
circumstances in which an alien already in Canada
may obtain the right to work here. We thus come
to section 20, which is the section at issue here.
The problem of interpretation needing solution
requires a careful analysis of the provision, but it
does not appear necessary to reproduce it in exten-
so. The following are its principal provisions,
which must be known in order to discuss it proper
ly and understand paragraph (5)(c), which must
be interpreted by this Court:
20. (1) An immigration officer shall not issue an employ
ment authorization to a person if,
(a) in his opinion, employment of the person in Canada will
adversely affect employment opportunities for Canadian citi
zens or permanent residents in Canada; or
(3) In order to form an opinion for the purposes of para
graph (1)(a), an immigration officer shall consider
(a) whether the prospective employer has made reasonable
efforts to hire or train Canadian citizens or permanent
residents for the employment with respect to which an
employment authorization is sought;
(b) the qualifications of the applicant for the employment
for which the employment authorization is sought; and
(c) whether the wages and working conditions offered are
sufficient to attract and retain in employment Canadian
citizens or permanent residents.
(4) For the purpose of considering the questions set out in
paragraphs (3)(a) and (c), an immigration officer shall consult
an officer of the office of the National Employment Service
serving the area in which the person seeking the employment
authorization wishes to engage in employment.
(5) Notwithstanding paragraph (1)(a), an immigration offi
cer may issue an employment authorization to
(c) a person coming to or in Canada under contract to fulfil
a single or continuous guest engagement in the performing
arts, except where
(i) the engagement is merely incidental to a commercial
activity that does not limit itself to artistic presentation, or
(ii) the engagement constitutes employment in a perma
nent position in a Canadian organization;
The meaning that emerges from these provi
sions, looked at together in this way, seems to me
to be so clear and logical that I feel no need to
undertake a lengthy analysis in order to state that
respondents' argument is unacceptable. It is quite
apparent that. subparagraphs (i) and (ii) of subsec
tion (5) contain exceptions to the principal provi
sion of subsection (5), which is itself an exception
to paragraph (1)(a): this being the case, it is clear
that the only effect of the application of subpara-
graph (i) or (ii) in a specific case will be the
exclusion of the exception introduced by the prin
cipal provision of subsection (5), and at the same
time the re-application of the basic rule of para
graph (1)(a). It necessarily follows that subpara-
graph 20(5)(c)(i) definitely cannot be interpreted
as making it impossible to grant a permit to some
one whose "engagement constitutes employment in
a permanent position in a Canadian organization";
it only requires that the latter's application be
considered in light of the provisions of paragraph
20(1)(a). Not only is this, in my opinion, the only
interpretation supported by a literal reading of the
provisions, it is also the only one that seems ration
ally acceptable, when one thinks of the scope of
the exclusion that would otherwise result and the
consequences it might have, by automatically and
peremptorily barring any artist who is not a
Canadian citizen from working in a Canadian
organization other than on a purely part-time
basis.
In my view, respondent agent erred in interpret
ing the provision in the way he did, and using it as
a basis for denying, peremptorily and without fur
ther consideration, the application for renewal
made to him by applicant. This application ought
to have been considered in accordance with the
provisions of paragraphs 20(1)(a) et seq, and an
order will be made for it to be so considered.
ORDER
The application is allowed with costs.
RESPONDENTS ARE HEREBY ORDERED to hear
and consider the application submitted by appli
cant for an extension of his work permit, in con
formity with the provisions of section 20(1)(a) of
the Regulations adopted on February 24, 1978
(SOR/78-172), pursuant to the Immigration Act,
1976, S.C. 1976-77, c. 52, and the other provisions
of the said section relating to the manner in which
paragraph (1) (a) is to be applied.
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.