Supreme Court Judgments

Supreme Court of Canada

Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577

Date: 1971-12-20

Panagiotis Grillas Appellant;

and

The Minister of Manpower and Immigration Respondent.

1971: February 15, 16; 1971: December 20.

Present: Abbott, Martland, Judson, Pigeon and Laskin JJ.

ON APPEAL FROM THE IMMIGRATION APPEAL BOARD

Immigration—Immigration Appeal Board dismissing appeal from deportation order—Appeal reopened to hear evidence not previously available—Jurisdiction—One member of Board replaced at later hearing—Board relying on statement of fact, not otherwise proved, made by counsel for respondent in argument—Immigration Appeal Board Act, 1966-67 (Can.), c. 90, ss. 14, 15.

The appellant, a Greek citizen, arrived in Canada as a member of a ship’s crew. He jumped ship at Montreal, was later arrested and then ordered by a Special Inquiry Officer to be deported. The appellant appealed to the Immigration Appeal Board and the sole issue on the appeal was whether the Board should exercise the discretion conferred on it by s. 15 of the Immigration Appeal Board Act, 1966-67 (Can.), c. 90, and allow the appellant to remain in Canada. The appeal was dismissed and the appellant then brought a motion before the Board to reopen the appeal on the grounds that there was evidence, not previously available, which would establish reasonable grounds for believing that the appellant would be subjected to unusual hardship if he were returned to Greece. The motion was granted but, in the result, the Board confirmed its earlier decision. On appeal to this Court, the appellant relied on two main grounds of appeal: 1. That the members of the Board who heard the original appeal were not the same group as those who heard the new evidence when the hearing reopened. One of the three members who heard the original appeal was replaced at the later hearing by another. 2. That the Board’s decision was based, at least in part, upon a statement made in argument by counsel for respondent, which, the Board conceded, was not evidence. The statement was an explanation for certain inquiries made by the Greek police concerning the appellant. According to counsel, the assistance of the police

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had been enlisted by the Department of Manpower and Immigration to go to the appellant’s mother’s place to try to find out the appellant’s whereabouts in Canada, so that he could be informed that he should present himself voluntarily to the immigration authorities.

Held (Martland and Laskin JJ. dissenting): The appeal should be dismissed.

Per Abbott, Martland, Judson and Laskin JJ.: The Immigration Appeal Board Act, having defined the powers of the Board, in disposing of an appeal, in s. 14, goes on, in s. 15(1), to give to the Board what might be called an “equitable” jurisdiction, to be exercised at its discretion, in certain circumstances, even though it has dismissed an appeal against a deportation order. There is no appeal from the way in which that discretion is used by the Board, provided it is properly exercised. When it is exercised, in favour of an appellant, the terms and conditions which are imposed, pursuant to subs. (2), are subject to review by the Board, and the Board may amend or quash its own order.

This “equitable” jurisdiction of the Board, under s. 15(1), is a continuing jurisdiction, and not one which must be exercised once and for all. The intention of the Act was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made. It is in accordance with that intent that the Board should have jurisdiction, in cases which it deems proper, to hear further evidence on the issues involved under s. 15(1), even though it has made an order dismissing the appeal. The Board had jurisdiction to reopen the hearing of the appellant’s appeal to permit him to present additional evidence.

Per Abbott and Judson JJ.: The statements made by counsel for the respondent, to which exception was taken, were accepted by the Board as part of his argument and not as evidence, and the Board made no error in so doing.

The later hearing was not a continuation of the first hearing, but was, in effect, a fresh appeal to the Board on new evidence upon which the Board was invited to exercise its jurisdiction under s. 15 to stay

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or quash the deportation order. There was no principle of law which required that the new hearing be held before the same panel that had made the original decision. Moreover, it was clear that the appellant had suffered no injustice as a result of the change in personnel.

Per Pigeon J.: While it is true that the Immigration Appeal Board Act provides in s. 15 for the review and amendment of orders issued on appeals from deportation orders, such provision is made for specified cases none of which is applicable. From the fact that provision has been made for amendment and review in specified cases it should be held not that a general power was intended to be conferred, but that this continuing jurisdiction was to be limited to the cases specified. Accordingly, the appeal should be dismissed on the basis that the decision of the Board reaffirming the order of deportation was correct because, in the circumstances, it had no jurisdiction to review or rehear the appeal after its final order had been issued.

The appellant could not invoke the principle that, in the case of boards entrusted with powers to be exercised in a quasi-judicial manner, no member who has not heard all the evidence may properly take part in the decision. He clearly had no right to have his case reheard.

On the final point raised, the Board correctly stated that counsel’s submission was not evidence, and no error of law was made in taking the submission into consideration for what it was in fact, no more than a possible explanation.

Per Martland and Laskin JJ., dissenting: The Board erred in law in relying on a statement of fact, not otherwise proved, made by counsel for the respondent in the course of his argument. That which was said by counsel bore directly on the main issue of fact in the appeal.

APPEAL from a decision of the Immigration Appeal Board, dismissing an appeal from a deportation order. Appeal dismissed, Martland and Laskin JJ. dissenting.

R. Pearl, for the appellant.

André Garneau, for the respondent.

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The judgment of Abbott and Judson JJ. was delivered by

ABBOTT J.—On May 8, 1968, the appellant, a native and citizen of Greece, then 17 years of age, with two other members of the crew, deserted the ship M/V “Dimitrios N.”, while she was in Montreal. He had relatives in Montreal and not long after jumping ship found work as a dishwasher in a restaurant in the city.

He was arrested on July 3, 1968, and appeared with his counsel before a Special Inquiry Officer under s. 11 of the Immigration Act. On July 25, 1968, following an inquiry held pursuant to the said Act, he was ordered to be deported. The same day, under s. 11 of the Immigration Appeal Board Act, the appellant appealed to the Immigration Appeal Board (hereinafter referred to as the Board) against the order of deportation.

There can be no question as to the validity of the deportation order made by the Special Inquiry Officer; indeed it was not challenged before the Board or before this Court. The sole issue on the appeal was whether the Board should exercise the discretion conferred on it by s. 15 of the Appeal Board Act and allow the appellant to remain in Canada.

That section reads:

15. (1) Where the Board dismisses an appeal against an order of deportation or makes an order of deportation pursuant to paragraph (c) of section 14, it shall direct that the order be executed as soon as practicable, except that

(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 deportation, 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

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(ii) the existence of compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief,

the Board may direct that the execution of the order of deportation be stayed, or may quash the order or quash the order and direct the grant of entry or landing to the person against whom the order was made.

(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 it 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 (a) of subsection (1), the Board may at any time thereafter quash the order; or

(b) has been stayed pursuant to paragraph (b) of subsection (1), 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.

This somewhat unusual section gives the Board broad discretionary powers to allow a person to remain in Canada who is inadmissible under the Immigration Act. Before the section was enacted, such power was vested solely in the executive branch of Government.

Whether the discretion to be exercised by the Board under s. 15 be described as equitable, administrative or political, it is not in the strict sense a judicial discretion, but it would appear it should be exercised essentially upon humanitarian grounds.

After a hearing, the Board refused to exercise its discretion under s. 15 and, on October 22,

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1968, dismissed the appeal and ordered that the deportation order be carried out as soon as possible. On November 8, 1968, appellant brought a motion before the Board to reopen the appeal on the ground that evidence, not previously available, had come to light of certain political activities of appellant while in Greece.

The course of the subsequent proceedings before the Board is reviewed in the reasons of my brother Martland. In the result, the Board granted the motion to reopen the appeal but, on January 24, 1969, ordered that the appeal be dismissed and the deportation order executed as soon as practicable. The appeal to this Court, by leave, is from that decision.

For the reasons given by my brother Martland, I agree that, until a deportation order has actually been executed, the Board is entitled, as it did in this case, to reopen an appeal, hear new evidence and, if it sees fit to do so, to revise its former decision and exercise its discretion under s. 15 to allow an appellant to remain in Canada. With respect, however, I do not share his view that the Board erred in law in reaching the decision which it did on January 24, 1969.

The suggestion that appellant might be punished for political activities if he returned to Greece was not raised before the Board on the first hearing of the appeal. The additional evidence given on the rehearing was directed almost entirely to show that this might be the case.

The Board, in its reasons for disposition of the appeal dated February 27, 1969, said:

After carefully considering all the evidence and arguments adduced before it, both at the original hearing and at the reopened hearing of this appeal, the Board is unable to find that there are reasonable grounds for believing that the appellant will be punished for activities of a political character if he returns to Greece. Even if he was present during what

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may be described as student demonstrations in favour of Papandreou’s Government when he was at Technical School, there is no evidence that the appellant thereby became personally known to the Greek police. These demonstrations took place before April 1967 (transcript of hearing on January 22, 1969, pages 40-41). The appellant remained in Greece, both in Athens and at his home village until March 18, 1968, when he joined the crew of the M/V “Dimitrios” N. (Minutes of inquiry, page 10). He was issued an apprentice seaman’s book, No. 26559, by the Greek authorities on September 19, 1967. (Minutes of inquiry, page 9). There is no evidence whatever that the appellant had any difficulties with the Greek police before he left the country or that he had any trouble obtaining his seaman’s book. Further, it may be noted that the appellant attended technical school during the academic year 1966‑1967. He was born on May 27, 1951, so that at the time of the alleged demonstrations he was fifteen years of age.

It is the Board’s opinion that if in fact the Greek police have made inquires about the appellant after his departure from Greece, Mr. Pépin’s explanation, though not evidence, is more plausible than that of the appellant. In his submission to the Board, Mr. Pépin stated (pages 75 and 76 of the transcript of hearing of January 22, 1969); “Now, maybe the police did go to his mother’s place. Our Department, when a person is reported as a deserter, from the information referred to on the crew’s index card, we ask our Visa Office in Athens to get in touch with the nearest next-of-kin. Sometimes a letter will not do the trick. Then we enlist the assistance of the Police Force to get in touch with the parents to try to find the whereabouts of the deserter in Canada, so as to inform him that he should surrender; otherwise he might be subject to prosecution for remaining in Canada by stealth.”

I therefore submit that if the Police did call at his mother’s place it was only to inform her that her son was in Canada illegally and that he should present himself voluntarily.

It may be added that Mr. Pearl filed with Board certain newspaper reports of events in Greece (Exhibit A at the reopened hearing on January 22, 1969). These have of course no value as evidence and have not influenced the Board in coming to its decision.

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The board sees no reason to change or amend its decision of January 22, 1969, and its order dated October 22, 1969, is therefore hereby confirmed.

It seems clear to me that the Board was not prepared to accept without reservation the evidence as to police inquiries given at the second hearing by appellant and by the witness Arvanitis.

The statements made by Mr. Pépin, counsel for respondent, in the course of his argument, which are referred to in the reasons of the Board and to which exception was taken, were accepted by the Board as part of his argument and not as evidence, and I do not agree that the Board erred in law in so doing.

Appellant also argued that the Board failed to properly exercise its jurisdiction in not having the appeal reheard and decided by the same members who heard the first appeal. One of the members who heard the first appeal was replaced at the second hearing by another. I find no merit in this submission. The hearing on January 22, 1969, was not a continuation of the first hearing, but was, in effect, a fresh appeal to the Board on new evidence upon which the Board was invited to exercise its jurisdiction under s. 15 to stay or quash the deportation order. After hearing the new evidence and reviewing the evidence taken at the first hearing, the Board refused to do so. I know of no principle of law which would require the new hearing to be held before the same panel that had made the original decision. Moreover, it is clear that appellant can have suffered no injustice as a result of the change in personnel. He had not one but two hearings before the Board, was fairly heard at all times, was represented by able counsel, and was permitted to adduce all the evidence he desired.

As I have said, my opinion is that the Board made no error in law in refusing to exercise, in favour of the appellant, the discretion given to it under s. 15 of the Act.

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I would dismiss the appeal.

The judgment of Martland and Laskin JJ. was delivered by

MARTLAND J. (dissenting)—This is an appeal, by leave of this Court, from the decision of the Immigration Appeal Board, hereinafter referred to as “the Board”, dismissing an appeal from a decision of the Special Inquiry Officer, who ordered the deportation of the appellant.

The appellant arrived in Canada on May 4, 1968, as a crew member on board the ship M/V “Dimitrios N.” He was arrested on July 3, 1968, pursuant to the provisions of the Immigration Act, R.S.C. 1952, c. 325 (as amended), and appeared before a Special Inquiry Officer. The Special Inquiry Officer decided that the appellant could not remain in Canada as of right and ordered him to be deported. This decision was appealed to the Immigration Appeal Board which heard the appeal on October 21, 1968. Counsel for the appellant did not dispute the validity of the Special Inquiry Officer’s deportation order but sought to have the Board exercise its powers under s. 15(1)(b) of the Immigration Appeal Board Act, which provides:

15. (1) Where the Board dismisses an appeal against an order of deportation or makes an order of deportation pursuant to paragraph (c) of section 14, it shall direct that the order be executed as soon as practicable, except that

(b) in the case of a person who was not a permanent resident at the time of the making of the order of deportation, 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,

the Board may direct that the execution of the order of deportation be stayed, or may quash the order or quash the order and direct the grant of entry or landing to the person against whom the order was made.

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After considering the evidence, the Board declined to exercise its discretion under s. 15, dismissed the appellant’s appeal and ordered that the deportation order be carried out as soon as possible. An order to this effect was signed by the Registrar of the Board on October 22. The Board’s reasons for its decision were issued on November 27.

On November 8 the appellant brought a motion before the Board to reopen the appeal on the grounds that there was evidence, not previously available, which would establish reasonable grounds for believing that the appellant would be subjected to unusual hardship if he were returned to Greece. On January 22, 1969, a newly constituted Board heard and considered counsel’s submissions as they related to the motion to reopen the appeal. The Board then reserved its decision on the motion and proceeded, with the consent of both counsel, to hear the new evidence.

The Board subsequently granted the motion to reopen the appeal, for the following reasons:

Despite Mr. Pépin’s very able argument against the motion, the Board is of the opinion that it should be accepted. To some extent it falls within the principles enunciated in the Board’s decision in respect of the motions of Wu Chan & Fung (June 28, 1968, unreported), namely the discovery of new evidence (in this case viva voce testimony of a witness) which could not by reasonable diligence have been discovered before the original hearing of the appeal, and which was of such a nature that, if satisfactorily proved, it would furnish a sufficient reason for reconsideration of the Board’s original disposition of the appeal.

Further, in view of the youth of the applicant and the statement that he had been “frightened” to tell the truth about his political activities at the original hearing of his appeal, the Board feels that in the interests of natural justice he should have the opportunity to give further testimony on this point.

The appellant testified that he was involved in political demonstrations before he had left Greece, but had been afraid to talk about it at the October 21st hearing. The Board also received the evidence of Sotirios Arvanitis, who had arrived

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in Canada on December 17, 1968, after the date of the first appeal. Arvanitis stated that the appellant’s mother had told him that the Greek police had been looking for Grillas and that Grillas should remain in Canada.

Q. Before you left Greece, did the mother of Panagiotos tell you anything about the Police?

A. Yes. She came and told me when she found out that I was coming here—to try my utmost to keep Panagiotos in Canada because if he returns the Police will arrest him.

Q. Do you know why the Police were looking for Panagiotos?

A. Yes. Because Panagiotos was in an Athens school and he used to have meetings and belong to organizations and have demonstrations and shout against the Government.

Q. Then, do you believe the Police were looking for him for political reasons?

A. Yes.

Q. Do you believe that if Panagiotos is forced to return to Greece, he would be put into jail?

A. They would put him in jail.

This evidence, although hearsay, was admissible under s. 7(2)(c) of the Act, which permits the Board, during a hearing, to receive such additional information as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it. If believed, it furnished a basis for the exercise of the Board’s discretion under s. 15(1). The Board did not reject this evidence, on the basis of credibility. It dealt with the issue as follows:

It is the Board’s opinion that if in fact the Greek police have made inquiries about the appellant after his departure from Greece, Mr. Pépin’s explanation, though not evidence, is more plausible than that of the appellant. In his submission to the Board, Mr. Pépin stated: “Now, maybe the Police did go to his mother’s place. Our Department, when a person is reported as a deserter, from the information referred to on the crew’s index card, we ask our Visa Office in Athens to get in touch with the nearest next-of-kin. Sometimes a letter will not do the trick. Then we enlist the assistance of the Police Force to get in touch with the parents to try to find the whereabouts of the deserter in Canada, so as to

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inform him that he should surrender; otherwise he might be subject to prosecution for remaining in Canada by stealth.

I therefore submit that if the Police did call at his mother’s place it was only to inform her that her son was in Canada illegally and that he should present himself voluntarily.”

In the result, the Board confirmed its earlier order.

The appellant relied upon two main grounds of appeal:

1. That the members of the Board who heard the original appeal were not the same group as those who heard the new evidence when the hearing was reopened. One of the three members who heard the appeal, in October, 1968, was replaced at the later hearing by another.

2. That the Board’s decision was based, at least in part, upon the statement made in argument by counsel for the respondent, which, the Board conceded, was not evidence.

At the outset of his argument before this Court, counsel for the respondent contended that neither of these grounds was valid in that the Board was without jurisdiction to reopen the hearing having once issued its written order on October 22, 1968. After the making of that order, he submitted that the Board was functus officio.

Reference was made to the judgment of Rinfret J. (as he then was), in this Court, in Paper Machinery Ltd. v. J.O. Ross Engineering Corp.[1] At p. 188 he said:

The question really is therefore whether there is power in the Court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in England is, we think,—and we see no reason why it should not also be the rule followed by this Court—that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court (In re Swire, (1885) 30 Ch. D. 239; Preston Banking Company v. Allsup & Sons, [1895] 1 Ch. 141; Ainsworth v. Wilding, [1896] 1 Ch. 673).

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The basis for the English rule, to which reference is made in this passage, is to be found in the case of In re St. Nazaire Company[2], in which the Court of Appeal held that, under the system of procedure established by the Judicature Acts, a judge of the High Court had no jurisdiction to rehear an order, as the power to rehear was part of the appellate jurisdiction transferred by the Acts to the Court of Appeal.

It may be recalled that, at the time the Paper Machinery Ltd. case was decided, there was an appeal from this Court to the Judicial Committee of the Privy Council, and, in fact, a motion for leave to appeal to that body had been made, unsuccessfully, before the motion in issue was made to this Court.

The same reasoning does not apply to the decisions of the Board, from which there is no appeal, save on a question of law. There is no appeal by way of a rehearing.

In R. v. Development Appeal Board, Ex p. Canadian Industries Ltd.[3], the Appellate Division of the Supreme Court of Alberta was of the view that the Alberta Legislature had recognized the application of the restriction stated in the St. Nazaire Company case to administrative boards, in that express provision for rehearing was made in the statutes creating some provincial boards, whereas, in the case of the Development Appeal Board in question, no such provision had been made. The Court goes on to note that one of the purposes in setting up these boards is to provide speedy determination of administrative problems.

The Board in question in this case, however, was created as an appellate body to hear appeals in respect of certain matters relating to immigration. The Act grants an appeal to a person against whom an order of deportation has been made on any ground of appeal which involves a question of law, fact, or mixed law and fact (s. 11). Section 14 of the Act provides:

14. The Board may dispose of an appeal under section 11 or section 12 by

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(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.

However, having defined the powers of the Board, in disposing of an appeal, it goes on, in s. 15(1), to give to the Board what might be called an “equitable” jurisdiction, to be exercised at its discretion, in certain circumstances, even though it has dismissed an appeal against a deportation order. There is no appeal from the way in which that discretion is used by the Board, provided it is properly exercised. When it is exercised, in favour of an appellant, the terms and conditions which are imposed, pursuant to subs. (2), are subject to review by the Board, and the Board may amend or quash its own order.

In my view, this “equitable” jurisdiction of the Board, under s. 15(1), is a continuing jurisdiction, and not one which must be exercised once and for all. The intention of the Act was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made. It is in accordance with that intent that the Board should have jurisdiction, in cases which it deems proper, to hear further evidence on the issues involved under s. 15(1), even though it has made an order dismissing the appeal. In my opinion, the Board had jurisdiction to reopen the hearing of the appellant’s appeal to permit him to present additional evidence.

This being so, it is necessary to consider the appellant’s appeal on the merits. It is only necessary for me to consider one of the grounds, previously mentioned, because I think it has merit and is sufficient to support the appeal.

The only substantial issue before the Board was as to whether the evidence adduced on behalf

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of the appellant was sufficient to warrant the exercise by the Board of its discretion under s. 15(1). Did reasonable grounds exist for believing that, if the deportation order were to be executed, the appellant would be punished for activities of a political character, or would suffer unusual hardship?

The evidence led by the appellant was that he had been involved in anti-government political demonstrations before he left Greece, that the Greek police had been looking for him after he left Greece, and that the witness, who had come from Greece, believed that they were looking for him for political reasons. The Board did not reject this evidence as not being credible, but, instead, accepted the contention of counsel for the respondent that the police inquiries concerning the appellant had a different purpose. That purpose, according to counsel, was that the assistance of the Greek police had been enlisted by the Department of Manpower and Immigration to go to the appellant’s mother’s place to try and find out the appellant’s whereabouts in Canada.

There was, however, no evidence of this. If the aid of the Greek police had been sought by the Department for such purpose, this could easily have been proved by a witness who would be subject to cross-examination. Instead, counsel for the respondent elected, himself, to make a statement of fact, not otherwise proved, in the course of his argument before the Board.

I have previously mentioned that s. 7(2)(c) permits the Board, during a hearing, to receive additional information necessary for dealing with the matter before it, but I do not construe that provision as enabling counsel, in the course of his argument, after all the evidence is in, himself to give evidence to the Board.

In my opinion, the Board erred, in law, in placing any reliance on evidence as to fact introduced in that manner. The situation here is

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similar to that which was considered by this Court, recently, in Pisani v. The Queen[4], in which it was held that where Crown counsel puts before the jury, as facts to be considered for conviction, matters of which there is no evidence and which come from counsel’s personal experience or observations, a new trial will be ordered where what was improperly said bears so directly on the central issue in the case and was so prejudicial in respect of that issue that the accused is deprived of his right to a fair trial.

In the present case, that which was said by counsel bore directly on the main issue of fact in the appeal, and was relied upon by the Board in reaching its conclusion.

In my opinion the appeal should be allowed and the matter should be returned to the Immigration Appeal Board for further reconsideration.

PIGEON J.—The first question on the appeal to this Court is whether the Board had jurisdiction to reopen the hearing of appellant’s appeal to the Board after having issued its written order dismissing it and directing that appellant be deported.

In my opinion, this question should not be considered on the basis of principles applicable to Courts having an inherent jurisdiction. The Immigration Appeal Board has nothing but a limited statutory jurisdiction. A defined part of governmental administrative powers has been assigned to it, not by any means the totality of such powers with respect to immigration. Thus, there is no room for the application of any principle that some remedy ought to be available when the statute does not provide for an explicit remedy. If such is the situation, the correct conclusion should be that the matter remains within the discretion of the proper governmental authorities.

In my view, the decision of this Court in The City of Jonquière v. Munger[5], is conclusive authority on the finality of decisions made by a board established under a statute pertaining to

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the exercise of an administrative jurisdiction. In that case, the Board was a council of arbitration empowered to establish conditions of employment for civic employees when a municipal corporation was unable to agree with its employees’ representatives upon the terms of a new collective labour agreement. After an award had been made, the Council was requested by the City to vary it in order to correct what was called a clerical error. In fact, what was asked for, and the majority of the members of the Council pretended to do, was a substantial change in the award involving a denial of important retroactive pay adjustments. The unanimous judgment of this Court affirming an equally unanimous judgment of the Court of Appeal was that the Council had no power to alter its decision.

In Re War Damage Act, 1943: Re 56, Denton Road, Twickenham, Middlesex[6], at p. 802, Vaisey J. said:

On the second point, the plaintiff’s counsel offered for my acceptance the following proposition—that where Parliament confers on a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot, in the absence of express statutory power or the consent of the person or persons affected, be altered or withdrawn by that body. I accept that proposition as well founded, and applicable to the present case. It is, I think, supported by Livingston v. Westminster Corpn., [1904] 2 K.B. 109; 73 LJ.K.B. 434; 68 J.P. 276; 38 Digest 141, 1048; and Robertson v. Minister of Pensions [1948] 2 All E.R. 767; [1949] 1 K.B. 227; [1949] L.J.R. 323; 2nd Digest Supp.

It is true that the Immigration Appeal Board Act provides in s. 15 for the review and amendment of orders issued on appeals from deportation orders. However, such provision is made for specified cases none of which is applicable. If Parliament had intended that the Board be

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authorized to review or amend its orders in every case, it would have said so. From the fact that provision has been made for amendment and review in specified cases it should, in my opinion, be held, not that a general power was intended to be conferred, but that this continuing jurisdiction was to be limited to the cases specified.

I am, therefore, of opinion to dismiss the appeal on the basis that the decision of the Board reaffirming the order of deportation was correct because, in the circumstances, it had no jurisdiction to review or rehear the appeal after its final order had been issued.

Since a majority of this Court take another view on this point, I feel I should proceed to consider the other points raised.

With respect to the composition of the Board at the rehearing, consideration should be given first to the nature of the proceedings at this rehearing. The Board was not proceeding to make a review or an amendment of its order as contemplated in subss. 2, 3 and 4 of s. 15 of the Act. It was really reopening the hearing of the appeal in order to reconsider, on the basis of the evidence given at the first hearing together with the new evidence submitted by the appellant, all the facts pertaining to the exercise of the discretionary power to stay the execution of the deportation order in accordance with para. (b) of subs. 1.

Like Cartwright J. (as he then was) in Mehr v. The Law Society of Upper Canada[7], I incline to the view that, in the case of boards entrusted with powers to be exercised in a quasi-judicial manner, no member who has not heard all the evidence may properly take any part in the decision: (Re. Ramm and Public Accountants Council for Ontario[8]; Barreau de Québec v. E.[9]; The King v. Huntingdon Confirming Authority, Ex. p. George and Stamford Hotels, Ltd.[10] However, it does not seem to me that this principle could have any application in cases contemplated in subss. 2, 3 and 4 of s. 15, in which there is an

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express grant of statutory authority without any such restriction. Also, I do not think that appellant may invoke it in this case. He clearly had no right to have his case reheard. How can he, on the one hand, take the benefit of the decision made at his request by some members of the Board to allow him a rehearing, and then ask this Court to decide that they could not render a valid decision?

The last question raised is whether the decision of the Board was vitiated by reliance on a statement made by counsel for the Department at the hearing. This statement was a suggested explanation for inquiries by the Greek police. Appellant contended that those inquiries indicated that he was likely to be punished for activities of a political character or would suffer unusual hardship if he was deported. Counsel for the Department suggested, on the contrary, that the proper inference ought to be that those inquiries took place because the Department, when a person is reported as a deserter, sometimes asks the Visa Office to request the assistance of the local police. They get in touch with the parents so as to trace the deserter. The submission was that if the police made the call, it was only to inform appellant’s mother that her son was in Canada illegally and that he should present himself voluntarily to immigration authorities.

The finding of the Board on that point is in the following terms:

It is the Board’s opinion that if, in fact, the Greek police have made enquiries about the appellant after his departure from Greece, Mr. Pépin’s explanation though not evidence is more plausible than that of the appellant.

It will be noted that the Board correctly stated that counsel’s submission was not evidence and the question is whether an error of law was made in taking the counsel’s submission into consideration for what it was in fact, no more than a possible explanation. In considering this question, one has to bear in mind that the activities of the

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Greek police were not direct evidence of the fact sought to be proved by appellant: a likelihood of persecution for political activities. Therefore, the question was whether this fact was to be inferred. The Board was certainly not bound to make this inference. The situation was not one in which it could be said to be making an error of law in refusing to accept the fact as proven unless evidence was submitted to contradict the proof submitted by appellant. The Board was entitled to take into account the mere possibility of another explanation.

There were possibilities that could readily come to mind on the basis of the facts in evidence. One of the exhibits before the Board was the crew index card reporting appellant’s desertion that was filled by the captain of the ship. This card filed with immigration authorities gave the name and address of appellant’s father and noted that appellant’s Greek seaman’s book had been sent to I.D.H.Q. It also noted that a deposit of $500 had been made as required by Canadian immigration regulations.

Appellant’s desertion was undoubtedly a matter of serious concern for the shipowner. In our Shipping Act, ss. 243, 244 and 246 (formerly 252, 253 and 255), provision is made for police assistance in apprehending ship deserters. The last of those sections contemplates reciprocal arrangements with foreign countries for such purposes. Thus, the Board could properly assume that under Greek law as under our own law, desertion from a ship is a proper matter for concern by police authorities.

It must also be noted that one of the purposes of requiring shipmasters to report desertions to immigration authorities is to enable the latter to take steps for apprehending these illegal immigrants. Cooperation between police forces is a

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fact within general knowledge and I cannot agree that the Board could not properly take account of it, unless there was direct proof that in this particular case there had been indeed a specific request to the Greek police for action on that basis. To do so would be to put a heavier onus of proof on the Department than on the appellant. In my view, the Board did not misdirect itself in taking into consideration the explanation suggested by counsel for the Department although it was not evidence.

Reference was made in argument to the decision of this Court in Mehr v. The Law Society of Upper Canada[11]. In that case, this Court quashed a disciplinary decision because evidence by written declarations had been improperly received although, after referring to such evidence, the report read:

The Committee has not given any effect to these declarations because the Hsiungs were not present in person and available for cross-examination.

Reference was made to the fact that the final decision had been taken not by the Committee but by Convocation. The ratio decidendi was stated as follows (at p. 350):

The statement of the Committee that it did not give any effect to the declaration, although of course I accept it as made in perfect good faith, does not enable the Court to support the report.

It must also be borne in mind that the decision as to whether or not the appellant should be struck off the rolls rested not with the Committee but (subject to the power reserved to the Court by s. 48 of the Law Society Act R.S.O. 1950, c. 200) with Convocation and the passage from the report of the Committee quoted above informed Convocation that the evidence of the appellant on a crucial point in the case was denied “with some vigor” on oath.

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I cannot take this as establishing any general rule but only as showing that when, on the whole, the Court reaches the conclusion that a decision under attack was influenced by evidence improperly admitted, it should be quashed.

A distinction has always been made regarding the consequences of the presentation of inadmissible evidence according to the nature of a tribunal hearing the case. In jury trials, it is settled law that the prejudicial effect of inadmissible evidence cannot always be wiped out by directions from the Court that it should be disregarded. However, in the case of a trial before a judge, it is equally settled that the decision is not invalidated if it is shown not to have been improperly influenced by the inadmissible evidence. In Larson v. Boyd[12], Anglin J., as he then was, said (at p. 281):

I agree with the view of the Court of Appeal that the testimony here in question was improperly received.

While without it there may have been sufficient evidence to warrant the judgment dismissing the action, it is impossible to say that the testimony objected to may not have adversely influenced the trial judge’s opinion as to the credibility of the plaintiff and thus occasioned a substantial wrong in the trial. Having received it, though subject to objection, and not disclaimed its having had any effect upon his mind, it is not unreasonable to assume that the learned judge treated it as admissible and that it, in fact, had what would seem to be its probable effect upon his decision.

In the present case, it appears to me that we would not be justified in interpreting the decision of the Board as showing that the remarks of counsel for the Minister were treated as of any greater value than as indicating a possibility that was to be taken into account in deciding whether the Board should or should not infer the likelihood of persecution for political activities from

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the fact of inquiries by the Greek police. The likelihood of punishment for desertion could certainly not be considered as undue hardship. Our own law does provide for sanctions against such deserters. Assuming, as is proper, that the law is the same in other countries, it cannot have been intended that all deserters should, by reason of the fact that if deported they are liable to punishment, be entitled to remain indefinitely in this country. Therefore, it was a matter for the discretion of the Board and it was perfectly proper for it to consider all possibilities in coming to its conclusion.

For all those reasons I would dismiss the appeal.

Appeal dismissed, MARTLAND and LASKIN JJ. dissenting.

Solicitors for the appellant: Benson, Wolofsky & Pearl, Montreal

Solicitor for the respondent: C.R. Munro, Ottawa.