PRACTICE AND PROCEDURE
BEFORE
Administrative Tribunals
VOLUME 3
by
ROBERT W. MACAULAY, Q.C.
and
JAMES L.H. SPRAGUE, B.A., LL.B.
Contributors
Judy Algar
Peter Budd
Irene Dicaire
Marvin J. Huberman
David P. Jacobs
Charles Mathis
Sharon Silberstein
Patricia Auron
Laura Boujoff
Dania Farr
Irving Kleiner
Steve B. McCann
Judith A. Snider
CARSWELL.
Gay A. Brown
Douglas Colbourne
Roger R. Elliott
Leslie Macintosh
Paul Pudge
David Wood
ADMINISTRATIVE TRIBUNALS
27A.4(c)(i)
27A.4(c) Where Decision Not Yet Made, Is a Nullity, Or An
Issue Remains Outstanding
27A.4(c)(i) Reconsidering Before Final Decision Made
The functus principle, by its nature, only applies to decisions once they have
been made. If the decision-maker has not yet made the final decision in the matter
before him he can return to the question to consider new evidence. 99
This authority also likely extends to a decision which is made as an integral
part of a bigger question. In Vatanabadi v. Canada (Minister of Employment &
Immigration)'°° an Access Tribunal under the Immigration Act was required to
determine whether an refugee status claimant was eligible to have his or her claim
considered and, if so, whether the claimant had a credible basis for that claim.
The Tribunal, erroneously, determined that a claimant was eligible to have his
claim considered. However, it realized its error prior to deciding the second stage
question. The Federal Court of Appeal held that the Tribunal was not functus as
to the first question and was able to return to it to change its decision. In the
opinion of the Court the two questions were merely parts of the one decision
which the Tribunal was mandated to make. Consequently, the Tribunal did not
become functus with respect to either issue until it had determined both. The
situation in Vatanabadi can be likened to a regulatory rate determination process
where an agency, in order to determine the proper rate to be charged for some
service or utility, is required to make many separate decisions on different economic or other factors all of which are combined into one decision.
It appears, however, that the same approach cannot be taken where the
questions being decided are distinct, although related. This can be illustrated by
the case of Dawson v. Minister of Employment & Immigration'°' in which a visitor
to Canada married a Canadian and applied from within the country for landing.
This application required two applications. The applicant had to apply for an
Order in Council from the Governor in Council to exempt the applicant from the
legislative requirement that an applicant for landing be made from outside of
Canada. He also had to make the application for landing to immigration authorities
in which they had to decide whether the applicant met the usual landing requirements. In the report to the Governor in Council regarding the issuance of the
99 Salinas v. Canada (Minister of Employment & Immigration, [19921 3 F.C. 247, 93 D.L.R. (4th)
631 (C.A.); Ferrerya v. Canada (Minister of Employment & Immigration)(1992), 56 F.T.R. 270
(T.D.); Gagnon v. College of Pharmacists (British Columbia) (1997), 148 D.L.R. (4th) 306, 92
B.C.A.C. 135 (C.A.); Golden Valley Golf Course Ltd. v. British Columbia (Minister of Transportation & Highways) (2001), 200 D.L.R. (4th) 248 (B.C. C.A.) Larivee v. Prince Edward Island
Eastern School Board, [2002] P.E.I. J. No. 22, 2002 PESCTD 17 (P.E.I. S.C.). See also Lo V.
Canada (2002), 229 F.T.R. 145 (Fed. T.D.) (replacement Visa Officer can review visa eligibility
decision of predecessor officer where visa not yet issued).
100 [1993] 2 F.C. 492, 102 D.L.R. (4th) 433 (C.A.).
101 (1988), 21 F.T.R. 212 (T.D.).
27A-35
(A.T.) (2003 — Rel. 4)
27A.4(c)(ii)
ADMINISTRATIVE TRIBUNALS
Order in Council, an immigration official (presumably one who had the authority
to determine the satisfaction of the landing criteria) included the statement that
"The above information is accurate as far as I can determine and all other necessary requirements have been met including Security if necessary" (emphasis
added). The Order in Council was issued. The applicant had not yet been advised
of any decision regarding whether he met the landing requirements. Subsequently,
the applicant's wife withdrew her sponsorship of the applicant. (He had applied
on the basis of such sponsorship.) On the basis of this withdrawal immigration
officials advised the applicant that he could not be admitted as a sponsored
immigrant and that he did not meet the landing requirement as an independent
applicant. On judicial review the Federal Court Trial Division found the notation
by the immigration authorities on the report respecting the Order in Council to
be a decision finding that all landing requirements had been met. They were,
therefore, unable to reopen the matter on the withdrawal of the spouse's sponsorship and purport to evaluate the applicant as an independent applicant.' 02
In response to decisions like Dawson immigration officials adopted the
practice of only noting in their reports respecting the issuance of the exempting
Orders in Council that the applicant "appeared" to meet all other landing requirements. In this way it was found that the notation in the report to the Governor in
Council did not constitute a final determination of the applicant's application on
the merits. ' 03
27A.4(c)(ii) Reserving Jurisdiction
An interesting twist on the incomplete decision exception to the functus
principle is where the decision-maker expressly holds off from making a final
decision in the hopes the parties may resolve the matter in the interim. This
102 The Court relied on the earlier decision of the Federal Court of Appeal in Sivacilar v. Minister
of Employment & Immigration ( I 984), 57 N.R. 57 (Fed. C.A.) which reached the same conclusion
on a similar fact situation.
103 Ferrerya v. Canada (Minister of Employment & Immigration) (1992), 56 F.T.R. 270 (T.D.). In
Dass v. Minister of Employment & Immigration, [1993] 2 F.C. 337 (T.D.) Justice Rothstein
found that this practice amounted only to a reservation of the right to verify information that
had been submitted with the claim and did not authorize immigration officials to consider facts
arising after the provisional decision had been made. At the time of that decision we questioned
the correctness of this decision in light of the Salinas and Vatanabadi cases (as a decision either
had to be made or not be made). Our concerns were upheld by the Federal Court of Appeal on
appeal from that decision, [1996] 2 F.C. 410 (C.A.) when the Court held that the notation
amounted to a mere preliminary interim screening to ensure that Orders-in-Council would not
be sought for clearly hopeless cases. It did not amount to a decision. Dass also calls into question
the earlier holding in Dawson that the internal record respecting landing was capable of amounting to a decision in the absence of any communication to the relevant party.
27A-36