Supreme Court Judgments

Supreme Court of Canada

Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639

Date: 1979-12-13

Zofia Janina Ernewein Appellant;

and

The Minister of Employment and Immigration Respondent.

1979: June 14; 1979: December 13.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Immigration—Deportation order—Appeal refused by Immigration Appeal Board—Application for leave to appeal to Federal Court dismissed—Appeal to Supreme Court of Canada by leave—Appeal quashed—Federal Court Act, R.S.C 1970 (2nd Supp.), c. 10, s. 31 as am. 1974-75-76 (Can.), c. 18, s. 9(2)—Immigration Appeal Board Act, R.S.C. 1970, c. I-3 as enacted 1973-74 (Can.), c. 27, s. 5.

Appeal—Refusal of leave by Federal Court—Discretion of intermediate appellate court—Whether leave to appeal may be sought from Supreme Court of Canada—Jurisdiction of Supreme Court of Canada—Appeal quashed—Supreme Court Act, R.S.C 1970, c. S-19, s. 41 as am. 1974-75-76 (Can.), c. 18, s. 5.

Appellant was born in Warsaw, Poland, and is a citizen of that country. She was admitted to Canada as a visitor on December 24, 1973, and remained here after the expiry of the time allowed her as a visitor. Following an inquiry under the Immigration Act she was ordered deported. She filed notice of appeal to the Immigration Appeal Board claiming refugee status pursuant to s. 11(1)(c) of the Immigration Appeal Board Act. The Board considered the required statutory declaration in support of her claim to be a refugee and concluded, without permitting her to give additional evidence or to make additional submissions, that the appeal should be refused and the order of deportation executed as soon as practicable, in effect deciding in accordance with s. 11(3) that there were no reasonable grounds to believe that the claim of refugee status could be substantiated. On the application for leave to appeal to the Federal Court of Appeal, a statutory requirement, it was charged that there had been a denial of natural justice. That Court however dismissed the application without recorded reasons. Appellant then applied to this Court under s. 31(3) of the Federal Court Act for leave to

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appeal from the refusal of leave by the Federal Court of Appeal. Leave was given enabling this Court to consider in light of the amended s. 31(3) whether such an appeal can competently be entertained.

Held (Pigeon, Beetz and Pratte JJ. dissenting): The appeal should be quashed.

Per Laskin C.J. and Martland, Ritchie, Dickson, Estey and McIntyre JJ.: While leave to appeal was granted, this Court has long taken the position that the granting of such leave does not preclude the Court on the hearing of the appeal from reconsidering whether the appeal should be heard. The scheme of appellate review by intermediate appellate courts, whose decisions in turn are appealable here, distinguishes between cases where the appeal is as of right and cases where the appeal cannot come on without leave previously obtained. In the former set of cases the intermediate appellate court cannot refuse to hear the appeals but in the latter it has the power to screen. An ultimate appellate court such as the Supreme Court of Canada should respect this differentiation and recognize that the legislative policy behind it is to leave it to the intermediate appellate court to decide, where leave to appeal is a precondition, whether to entertain it. If it decides that it will not that should end the matter unless there is more commanding language than is found in ss. 31(3) and 41(1) to warrant this Court’s interference with what is a discretionary determination to refuse to allow an appeal to proceed.

Per Pigeon, Beetz and Pratte JJ. dissenting: In the present case no indication was given to the appellant of the reasons for which her claim to refugee status was denied. The Immigration Appeal Board is not an administrative agency but a court of record and must be subject to the rule that it is not enough that justice be done, it must appear to be done. The audi alteram partem principle is a rule of natural justice so firmly adopted that it applies to all who fulfil judicial functions and is not to be excluded by inference. While the validity of the Board’s “judgment” is not directly in question it is essential to consider that here the adjudication of a claim was done without any semblance of due process. The Federal Court of Appeal seems simply to have followed its established precedents in denying leave. In particular Minister of Manpower and Immigration v. Fuentes, [1974] 2 F.C. 331, should be questioned, as effectively denying rights contemplated in the “U.N. Refugee Convention” and substituting therefor the discretion of the Immigration Appeal Board. The

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question is of major importance but will remain foreclosed unless this Court can grant leave from the denial of leave by the Federal Court of Appeal. The effect will be to exclude all possibility of a review of the Fuentes case by this court.

The right of appeal to this Court in this case depends on s. 31 of the Federal Court Act of which subs. 31(1), now repealed, gave a right of appeal to the Supreme Court from a “final judgment” of the Federal Court of Appeal in some cases and the definition of “final judgment” remains in s. 2 and means “any judgment or other decision that determines in whole or in part any substantive right…” It is apparent that in subss. 31(2) and 31(3) “Final or other judgment” includes any other decision of the Federal Court of Appeal. As both subsections also apply to any “determination” there is no reason to narrow the wide meaning of the words to exclude decisions such as the order here in question.

It is important to note the continuous expansion of the provision in the Federal Court Act governing appeals to this Court. In the Exchequer Court Act prior to 1949, such appeal lay only from a final judgment or a judgment upon a demurrer or point of law raised by the pleadings. In 1949, this was extended to include appeal with leave from an interlocutory judgment. The use in s. 31 of the present Act of the words “final or other judgment or determination” indicates the will of Parliament to broaden still more, rather than to restrict, the scope of the provision allowing appeals by leave. It is important for this Court in the discharge of its general duty vis-à-vis the application of the law throughout Canada to avoid putting any important question of law beyond possibility of review.

[Canadian Cablesystems (Ontario) Ltd. v. Consumers Association of Canada et al., [1977] 2 S.C.R. 740; Lane v. Esdaile, [1891] A.C. 210; Canadian Utilities Ltd. et al. v. Deputy Minister of National Revenue for Customs and Excise, [1964] S.C.R. 57; Paul v. The Queen, [1960] S.C.R. 452, referred to; see also Procedure Directive of the House of Lords dated March 6, 1979, noted in [1979] 2 All E.R. 224.]

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APPEAL from a refusal, without written or recorded reasons, of the Federal Court of Appeal to grant leave to appeal to that Court from a decision of the Immigration Appeal Board refusing, also without written or recorded reasons, and without permitting the appellant to give additional evidence or to make additional submissions, an appeal from a deportation order. Appeal quashed, Pigeon, Beetz and Pratte JJ. dissenting.

George W. Alexandrowicz, for the appellant.

J.A. Scollin, Q.C., and D.F. Friesen, for the respondent.

The judgment of Laskin C.J. and Martland, Ritchie, Dickson, Estey and McIntyre JJ. was delivered by

THE CHIEF JUSTICE—The full Court is concerned in this appeal with a question of jurisdiction relating to the right of the Court to give leave to appeal and, consequently, to entertain an appeal from the refusal of the Federal Court of Appeal to give leave to appeal to that Court from a decision of an inferior tribunal, in this case the Immigration Appeal Board. The question arises under s. 31(3) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as enacted by 1974-75-76 (Can.), c. 18, s. 9(2), but the same question can arise under s. 41 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended by 1974-75-76 (Can.), c. 18, s. 5, in respect of the refusal of a provincial Court of Appeal to entertain an appeal to itself by refusing required leave.

The appellant before this Court, admitted to Canada as a visitor, was ordered to be deported following an inquiry under the Immigration Act, R.S.C. 1970, c. I-2. She filed a notice of appeal to the Immigration Appeal Board, claiming refugee status pursuant to s. 11(1)(c) of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, as enacted by 1973-74 (Can.), c. 27, s. 5. The Board, acting under s. 11(3) of its above-mentioned Act, considered the required statutory declaration in support of the appellant’s claim to be a refugee under the Act and concluded, without permitting the appellant to give additional evidence or to make

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additional submissions, that the appeal should be refused and the order of deportation executed as soon as practicable. In effect, the Board decided, in accordance with the prescriptions of s. 11(3), that there were no reasonable grounds to believe that the claim of refugee status could, upon the hearing of the appeal, be established and hence refused to allow the appeal to proceed. It was charged against the Board on an application for leave to appeal to the Federal Court of Appeal, such leave being a statutory requirement, that there had been a denial of natural justice to the appellant. The Federal Court of Appeal dismissed the application for leave without written reasons.

The appellant thereupon applied to this Court under s. 31(3) of the Federal Court Act for leave to appeal from the refusal of the Federal Court of Appeal to grant leave to appeal from the adverse ruling of the Immigration Appeal Board. Leave was given, thus enabling this Court to consider, in light of the amended s. 31(3), whether such an appeal can competently be entertained. I should note that this Court has for long taken the position that the granting of leave to appeal thereto does not preclude it, on the hearing of the appeal, from reconsidering whether the appeal should be heard: see Canadian Cablesystems (Ontario) Ltd. v. Consumers’ Association of Canada et al.[1] The Court said this in the Cablesystems case at p. 742:

It should be emphasized that it is no longer enough to establish that a lis of some sort exists to oblige this Court to hear an appeal, as was the case when appeals came here as of right. Since leave is now required (and has been required since January 25, 1975) in all civil matters, the Court will give leave to come here in such matters only if the applicant for leave makes out a case under s. 41 of the Supreme Court Act, as enacted by 1974-75-76 (Can.), c. 18, s. 5. Although it will be rarely that this Court, leave having been granted, will thereafter refuse to entertain the appeal on the merits, its power to do so is undoubted, whether leave is obtained from a provincial Court of Appeal or from the Federal Court of Appeal or from this Court itself.

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Certainly, if the lis has disappeared or the substratum of the appeal has been removed when it comes on for hearing, this Court would ordinarily refuse to hear it and, so too, if the want of jurisdiction of this Court to hear it is established.

Section 31(3) of the Federal Court Act reads as follows:

(3) An appeal lies to the Supreme Court from a final or other judgment or determination of the Federal Court of Appeal, whether or not leave to appeal to the Supreme Court has been refused by the Federal Court of Appeal, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment or determination is accordingly granted by the Supreme Court.

The only applicable definition provision is that of “final judgment” found in s. 2 of the Act and in these terms:

“final judgment” means any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;

It is convenient at this point to bring into focus s. 41 of the Supreme Court Act, above referred to, which is as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other jugdment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.

(2) Leave to appeal under this section may be granted during the period fixed by section 64 or within thirty

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days thereafter or within such further extended time as the Supreme Court or a judge may either before or after the expiry of the thirty days fix or allow.

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

(4) Whenever the Supreme Court has granted leave to appeal, the Supreme Court or a judge may, notwithstanding anything in this Act, extend the time within which the appeal may be allowed.

Applicable definitions of terms used in s. 41 are found in s. 2(1) of the Supreme Court Act, and I refer to the following terms therein:

“appeal” includes any proceeding to set aside or vary any judgment of the court appealed from;

…

“final judgment” means any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;

…

“judgment”, when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof; and when used with reference to the Supreme Court, includes any judgment or order of that Court;

“judicial proceeding” includes any action, suit, cause, matter or other proceeding in disposing of which the court appealed from has not exercised merely a regulative, administrative, or executive jurisdiction;

It will be noticed that there is a difference in the wording of the relevant portion of s. 31(3) respecting an appeal here by leave of this Court from the Federal Court of Appeal and of s. 41(1) respecting an appeal by leave of this Court from a provincial appellate court. Section 31(3) speaks of “a final or other judgment or determination of the Federal Court of Appeal”, whereas s. 41(1) speaks only of “any final or other judgment of the highest court of final resort in a province…” I do not think that the difference warrants any different conclusion on the issue presented here where an appeal is sought

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to be taken from the Federal Court of Appeal rather than from a provincial court of appeal. This Court certainly has the final word (subject to what Parliament may prescribe) on the meaning to be found in the words “final or other judgment or determination” and in the words “final or other judgment”. There is, in my view, little profit to be derived from searching dictionary meanings. At bottom, the question presented here is one of the policy that this Court should follow, having regard to its broad ultimate authority to decide for itself what cases it should hear.

I do think, however, that some consideration must be given to the term “substantive right” which appears in the definition of “final judgment” in the Federal Court Act and in the definition of the similar phrase in the Supreme Court Act. It connotes to me that the Court appealed from has pronounced on the merits of an appeal which it has decided to entertain but, of course, I am aware of the fact that both s. 31(3) and s. 41(1) would support a wider assessment because of the words “other judgment or determination” in s. 31(3) and the words “other judgment” in s. 41(1). It is nonetheless not difficult to envisage situations which satisfy those words, as, for example, judgments in interlocutory matters, which would give them subject matter without including cases in which the intermediate appellate court has refused to entertain an appeal altogether by refusing required leave.

On the other hand, a refusal of leave may decide nothing about substantive or interlocutory issues but only that the case is not one to be brought forward. That is the usual formula which this Court adopts when it refuses leave. Of course, the Court from which leave is sought may think the decision below is plainly correct and refuse leave on that ground or that, on the facts, it does not raise a sufficiently important issue to be brought forward or that the grounds on which leave is sought would not, even if supported, be dispositive of the appeal. There are so many considerations that enter into a refusal to give leave as to make

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the matter one peculiarly for the experienced judgment of the Court from which leave is sought.

The scheme of appellate review by intermediate appellate courts, whose decisions in turn are appealable here, distinguishes between cases where the appeal to them is as of right and where the appeal cannot come on to be heard unless leave to appeal is previously obtained. In the one set of cases, the intermediate appellate court cannot refuse to hear the appeals but in the other set it is empowered to screen out those cases which it decides not to hear on any of the issues sought to be brought forward for hearing on the merits. In my view, an ultimate appellate court like the Supreme Court of Canada should respect this differentiation prescribed for courts below, and should recognize that the legislative policy which supports the differentiation is to leave it to the intermediate appellate court to decide, where leave to appeal is a precondition of an appeal to it on the merits, whether it will entertain it. If it decides that it will not, that should end the matter so far as any further appeal here is concerned, unless there is more commanding language than is found in ss. 31(3) and 41(1) to warrant this Court’s interference with what is a discretionary determination to refuse to allow an appeal to proceed.

It is my view that considerations of judicial comity should operate in this respect, and I do not think they should depend oil whether or not reasons are given for refusing to hear an appeal. There is, of course, the concern, expressed by the appellant’s counsel in his argument before this Court, that the refusal of leave by an intermediate court of appeal (perhaps in obedience to a line of previous decisions which are allegedly wrong) would, if accepted as determinative so far as a further appeal here is concerned, prevent this Court from exercising its ultimate authority to set the law right. I am not fearful of any want of good faith in intermediate appellate courts, nor is there any reason to doubt their competence in matters confided to them. Even this Court does not neces-

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sarily bring on appeals to it merely because it doubts the correctness of the judgment to be appealed. There is, in my experience, little likelihood of a stoppage of issues from coming here when it is important that they be heard; and there is, of course, the fact that would-be appellants are prone to find more merit in their positions than was seen by the intermediate appellate court which denied them leave to bring their cases to that court.

There is relevant authority in the House of Lords and in this Court for a refusal to entertain an appeal or to give leave to appeal from a refusal of the court appealed from to give leave for the case to come before it. In Lane v. Esdaile[2], the applicable legislation was quite different from that involved here, but the case did concern a refusal of the Court of Appeal to give special leave to appeal a High Court judgment and an application to the House of Lords against that refusal. In refusing the application for leave (because of the expiry of the time limit for appealing under an applicable order and rule), the Court of Appeal made no order but it was contended that the refusal was “an order or judgment” within the meaning of the Appellate Jurisdiction Act, 1876 (Imp.), c. 59, s. 3, which provided for an appeal to the House of Lords “from any order or judgment” of the Court appealed from. A preliminary objection was taken that no appeal lay to the House of Lords from the Court of Appeal’s refusal of leave to come to it. The objection was maintained by the House. I think the whole of the reasons of Lord Halsbury are pertinent here, and they are as follows, at pp. 211-213:

My Lords, I am of opinion that this preliminary objection ought to prevail. An appeal is not to be presumed but must be given. I do not mean to say that it must be given by express words, but it must be given in some form or other in which it can be said that it is affirmatively given and not presumed. In the particular case now before your Lordships the appeal is certainly not given in express words. The words used are “leave of the Court”; and although it may be that in some sense the leave of the Court, whether it is given or withheld,

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becomes an order (that I will not stay to discuss), that is not the ordinary mode in which it would be described. It is to be something that is done by the order of the Court. I confess myself I should hesitate if it was only to turn upon the question of language, because although a thing might be called an order, or might be called a judgment, or might be called a rule, or might be called a decree, it might well be that nevertheless by reason of the context it would come within the obvious meaning and purpose of the statute; so that although it was no one of those things in name it might be one of those things in substance, and therefore would come within the general provision that an appeal should lie.

But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal—that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction.

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My Lords, I confess that when I look both at the subject-matter with which the order deals and at the language of the order itself it seems to me obvious that it was intended that the decision should be final (whether that is said in terms or not seems to me to be immaterial), unless the Court of Appeal, the body there prescribed, in the exercise of that jurisdiction should give leave to appeal. As no leave has been given in this case, and as no appeal can be brought unless leave has been given, I am of opinion that this preliminary objection ought to prevail…

The logic of Lord Halsbury’s observation that if a refusal to give leave to appeal is appealable so must be the granting of leave, is unassailable. Indeed, what it points up is an obliteration of the distinction in the operation of an intermediate appellate court between cases which it chooses to hear on the merits and those in which it either refuses to grant leave or those in which, leave having been granted, an appeal is sought to be taken further from the refusal or grant, as the case may be. In my opinion there must be compelling language in the applicable legislation—and I do not find it here—before such a result can be tolerated. It may be contended that since this Court has asserted, as in the Cablesystems case, that the granting of leave by an intermediate appellate court to bring a case here does not foreclose this Court from deciding that the appeal should not proceed, this is tantamount to entertaining an appeal from the granting of leave. It is not so. The granting of leave to come here relates to proceedings in this Court with reference to cases already heard by the intermediate court of appeal and has nothing to do with the issue in the present case, which is concerned with an appeal from an intermediate court of appeal’s refusal of leave to have a case come before it for disposition on the merits.

The judgment in Lane v. Esdaile was applied by this Court in Canadian Utilities Ltd. et al. v. Deputy Minister of National Revenue for Customs and Excise[3], where Cartwright J., as he then was, spoke for the Court on a motion to quash an appeal from a judgment of Thorson P. of the Exchequer Court refusing to grant leave to appeal

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from a declaration of the Tariff Board. Thorson P. later gave written reasons for his refusal to grant leave, stating that no question of law was involved to found jurisdiction and, in any event, it was not the kind of case in which leave should be given. The basis for an appeal to this Court was founded on s. 58 of the Excise Tax Act, R.S.C. 1952, c. 100 and s. 82 of the Exchequer Court Act, R.S.C. 1952, c. 98, which provided, respectively, for an appeal to the Exchequer Court by its leave from a declaration of the Tariff Board and for a further appeal to this Court from a final judgment or a judgment of the Exchequer Court upon a demurrer or point of law and, with leave of a Judge of this Court, from an interlocutory judgment of that Court. The appeal here was asserted as of right, and in quashing it Cartwright J. held the reasoning in Lane v. Esdaile, supra, to be decisive. After referring to a number of other cases in this Court, Cartwright J. said, at p. 63:

It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.

I agree with this view as equally applicable to s. 31(3) and s. 41(1). I would refer also to the Editor’s note at the end of the reasons in the Canadian Utilities case pointing out that, subsequently, leave to appeal was sought to come here and that Cartwright J., who heard the application, stated that since there was no appeal from the decision of the Exchequer Court, there was no jurisdiction in this Court to grant leave therefrom.

I would refer also to one other applicable authority in this Court. In Paul v. The Queen[4], this Court, sitting as a bench of seven, considered

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whether it had jurisdiction under s. 41 of the Supreme Court Act, R.S.C. 1952, c. 159, as it then stood, to grant leave to appeal in a summary conviction matter (which was outside of the provisions for appeal to this Court under the Criminal Code) where the Ontario Court of Appeal had refused leave to appeal to that court from a judgment of the County Court. The County Court had dismissed an appeal from a conviction of impaired driving, holding that it had no jurisdiction to proceed with the appeal to it, agreeing with the Crown’s preliminary objection to the notice of appeal. The Court of Appeal refused leave to come to it on the ground that the matter in issue was foreclosed by its prior decisions by which it was bound. A majority of this Court held that there was no jurisdiction to give leave from the Ontario Court of Appeal’s refusal to bring up the case, nor was there jurisdiction to give leave from the decision of the County Court.

The relevant statutory provisions considered in the Paul case were s. 41(1) and (3), reading as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court.

…

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

Fauteux J., as he then was, speaking also for Abbott and Judson JJ. (Taschereau J., as he then was, wrote separate concurring reasons) said this at pp. 466-467:

Agreeing as I do that the highest Court of final resort in the province, in this particular case, is the Court of Appeal, the next point to consider is whether the judgment of that Court, which is here sought to be appealed, is appealable under s. 41.

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As pointed out by our brother Taschereau, the judgment of the Court of Appeal is not a judgment determining an appeal but a judgment refusing leave to appeal and as such not within the terms of s. 41(3). The question is then whether it comes within s. 41(1). The proposition that judgments which are not within the scope of s. 41(3) are necessarily embraced in s. 41(1) has been ruled out in the Goldhar case, [1960] S.C.R. 60, where a strict adherence to the rule of literal construction of s. 41 was, in the matter, shown to lead to repugnancy. Such a result would equally obtain if the judgment refusing leave to appeal, in this case, was held to come within s. 41(1). For on the same reasoning, one would have to hold that, for indictable offences, s. 41(1) authorizes an appeal to this Court from a judgment of the Court of Appeal refusing leave to appeal to its Court from the verdict or judgment of first instance on grounds of mixed law and facts or pure facts. Such a jurisdiction would be inconsistent with the limitation of our jurisdiction to pure questions of law in criminal appeals from convictions or acquittals of offences.

Although the judgment of this Court in the Paul case was by a bare majority, it is instructive to note the basis of dissent as expressed in the reasons of Ritchie J., speaking for himself and Martland J., with Cartwright J., who also wrote separate dissenting reasons, agreeing with Ritchie J. in the following reasons of the latter, at p. 473:

As has been indicated, I would grant leave to appeal to this Court in the present case, but it should be clearly understood that this decision is strictly confined to the circumstances here disclosed and is based on the assumption that the Court of Appeal dealt with and disposed of the merits of the questions of law raised before it on the application for leave to appeal to that court as fully and effectually and for the same reasons and with the same result as they would have done if leave to appeal had been granted. The granting of this application is not to be construed as a review of the discretion vested in the Court of Appeal by s. 743 of the Criminal Code and can have no bearing on the right of the Court of Appeal to refuse leave to appeal in indictable offence cases under s. 583(a)(ii) because what is at issue here is a question of law and cases sought to be appealed under that section are concerned with fact or mixed fact and law. Nor can it be said that the considerations governing this case could apply to an application for leave to appeal to this Court from an order granting leave to appeal to the Court of Appeal because the effect of such an order can only be to pave the way for the

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questions of law to be decided on the hearing, and such an order cannot, therefore, have the effect of determining the merits of the appeal.

Lane v. Esdaile, supra, was distinguished by Ritchie J. as turning on a discretionary refusal to grant leave after the time for applying had expired and as not involving a determination on the merits. The present case is also not one in which it can be said that the Federal Court of Appeal’s refusal of leave was a determination of the merits in the same way as if it had granted leave to appeal and had thereafter reviewed the merits at a subsequent hearing. I do not wish this to be taken as necessarily opening the door to a review by this Court of a refusal by intermediate courts of appeal to give leave to appeal to them; the majority judgment in the Paul case is against such a position. It is enough, however, to underline that even on the view of the dissenting Judges in the Paul case, this Court had no jurisdiction to grant a review of the discretionary refusal of the court below to bring an appeal up for its consideration.

I would add to my reasons in this case a reference to a recent Procedure Direction of the House of Lords, dated March 6, 1979, and noted in [1979] 2 All E.R. 224. It concerns petitions for leave to appeal to that Court. They are to be referred to an appeal committee of three Lords of Appeal who are to consider whether a petition appears to be competent to be received and, if so, whether it should be referred for an oral hearing. There follows a listing of classes of petitions declared to be incompetent, of which the first is “petitions for leave to appeal to the House of Lords against a refusal of the Court of Appeal to grant leave to appeal to that Court from a judgment of a lower Court”. This is exactly the situation in the present case.

For the foregoing reasons, I would hold that no appeal lies to this Court from a refusal of the Federal Court of Appeal to grant leave to come before it and leave to appeal to question that refusal should not be given by this Court. The

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situation, in my opinion, is the same under s. 41(1) of the Supreme Court Act. This is not a case, moreover, where the Federal Court of Appeal mistakenly declined jurisdiction.

This Court reserved its opinion on this point at the hearing and advised the parties that any further argument would abide the result of its decision on the point. In the circumstances, the appeal must be quashed. This is not a case for costs.

The reasons of Pigeon, Beetz and Pratte JJ. were delivered by

PIGEON J. (dissenting)—At the hearing of this case a question was raised from the Bench as to the jurisdiction of the Court to hear it. Argument was thereupon heard on that question only.

The appellant was born in Warsaw, Poland, on November 1, 1932, and is a citizen of Poland. She was married, had two daughters born in 1953 and 1955, and separated from her husband in 1957. She says she came to Canada when she considered her daughters old enough to look after themselves. The exact date of her entry is December 24, 1973. She remained in this country after the expiry of the time allowed her as a visitor and an inquiry was commenced on June 13, 1976, under the Immigration Act (R.S.C. 1970, c. I-2). The inquiry resumed on August 18, 1977. The appellant claimed refugee status, but a deportation order was issued based on s. 5(t) of the said Immigration Act, that is, not being in possession of a valid and subsisting immigrant visa. The same day a notice of appeal was given in which the appellant stated that she wished to be present at the hearing of the appeal, to make oral submissions to the Board and also to be represented at the hearing. In support of this appeal she filed within five days an affidavit stating the reasons for which she was claiming refugee status and in this, among other allegations, she stated specifically:

12. I am subject to criminal and administrative sanctions for having remained out of Poland without permission. The penalties provided include deprivation of freedom and denial of such human rights as the right to work and to live in the locality of my choice.

[Page 656]

13. This application for refugee status has heightened my fears to the point that I know I will suffer severe penalties, including interrogations and deprivation of liberty. Such an application as this will be treated as akin to treason and other offences against the state, which will not be tolerated and which are ruthlessly suppressed.

On August 30, 1977, without hearing appellant or her counsel, without any notice to them and in their absence, the Immigration Appeal Board delivered the following judgment:

File: 77-9346

IMMIGRATION APPEAL BOARD

LA COMMISSION D’APPEL DE

L’IMMIGRATION

A.B. Weselak                                                      The 30th day of August, 1977

G. Tisshaw

H.B. Jaskula

Zofia Janina Ernewein

APPELLANT

The Minister of Employment and Immigration

RESPONDENT

The declaration by the appellant dated the 23rd day of August, 1977, filed pursuant to paragraph (2) of section 11 of the Immigration Appeal Board Act has been considered on the 30th day of August, 1977, and upon reading the submissions filed;

THIS BOARD DOTH ORDER that the appeal from an order of deportation made against the appellant on the 18th day of August, 1977, be and the same is hereby refused.

AND DOTH FURTHER DIRECT that the order of deportation be executed as soon as practicable.

Judgement pronounced this 30th day of August, 1977

(signed)                        W.J. Hartley

Registrar

The appellant thereupon made an application to the Federal Court of Appeal for an order granting leave to appeal from the judgment of the Immigration Appeal Board and, on November 2, 1977, the following Order was issued without oral or written reasons:

[Page 657]

“ORDER”

Jackett, C.J.                                                                                               November 2, 1977

Pratte J.

Heald J.

The application for leave to appeal is dismissed.

L.P. j                                                                                                            W.R. Jackett

D.V.H.

Leave to appeal from this Order was granted by a panel of three members of this Court on December 20, 1977.

It should at first be pointed out that the appellant’s claim for refugee status was made under amendments to the Immigration Appeal Board Act (R.S.C. 1970, c. I-3, “the Act”) enacted by the statute of 1973, 21-22 Eliz. II, c. 27, ss. 1 and 5. (The Immigration Act, 1976 (25-26 Eliz. II, c. 52), although assented to August 5, 1977, was proclaimed in force on April 10, 1978.)

The first mentioned amendment added to s. 2 of the Act the following definition:

“Convention” means the United Nations Convention Relating to the Status of Refugees signed at Geneva on the twenty-eighth day of July, 1951 and includes any Protocol thereto ratified or acceded to by Canada;

The other amendment replaced s. 11 by a new section, the relevant parts of which are as follows:

11. (1) Subject to subsections (2) and (3), a person against whom an order of deportation is made under the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact, if, at the time that the order of deportation is made against him, he is

…

…

(c) a person who claims he is a refugee protected by the Convention; or

(2) Where an appeal is made to the Board pursuant to subsection (1) and the right of appeal is based on a claim described in paragraph (1)(c) or (d), the notice of appeal to the Board shall contain or be accompanied by a declaration under oath setting out

(a) the nature of the claim;

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(b) a statement in reasonable detail of the facts on which the claim is based;

(c) a summary in reasonable detail of the information and evidence intended to be offered in support of the claim upon the hearing of the appeal; and

(d) such other representations as the appellant deems relevant to the claim.

(3) Notwithstanding any provision of this Act, where the Board receives a notice of appeal and the appeal is based on a claim described in paragraph (1)(c) or (d), a quorum of the Board shall forthwith consider the declaration referred to in subsection (2) and, if on the basis of such consideration the Board is of the opinion that there are reasonable grounds to believe that the claim could, upon the hearing of the appeal, be established, it shall allow the appeal to proceed, and in any other case it shall refuse to allow the appeal to proceed and shall thereupon direct that the order of deportation be executed as soon as practicable.

It will be seen that the provisions of the Convention were adopted and became part of the law of Canada by being thus referred to in an Act of Parliament. In Hurt v. Minister of Manpower and Immigration[5], Heald J. giving the unanimous judgment of the Federal Court of Appeal said with reference to another Polish national claiming refugee status:

The United Nations Convention and Protocol defines the term “refugee” as follows:

the term “refugee” shall apply to any person who: …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country… (Underlining is mine.) (United Nations Convention relating to the Status of Refugees HCR/INF/29/Rev. 2, Chapter 1, Article 1, paragraph A(2).)

In that case, the Board had given reasons from which it appeared that refugee status had been denied to the immigrant because he had been several years in West Germany whence he had come to Canada via the United States so they said he was not a refugee from West Germany. The Federal Court of Appeal ruled that in so deciding

[Page 659]

the Board had asked itself the wrong question because the appellant was claiming to be a refugee from Poland. The decision was quashed and the matter referred back for redetermination.

In the present case no indication was given to the appellant of the reasons for which her claim to refugee status was denied and, in my view, this raises a very serious question. The Immigration Appeal Board is not an administrative agency but a “court of record” (s. 7, now s. 65). It must therefore be subject to the rule that it is not enough that justice be done, it must appear to be done. It is also a well established principle that audi alteram partem is a rule of natural justice so firmly adopted by the common law that it applies to all those who fulfil judicial functions and it is not excluded by inference. See: L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board[6] per Rinfret C.J. at p. 154:

[TRANSLATION] The rule that no one should be convicted or deprived of his rights without a hearing, and especially without even being informed that his rights would be in question, is a universal rule of equity, and the silence of a statute should not be relief on as a basis for ignoring it. In my opinion, there would have to be nothing less than an express statement by the legislator for this rule to be superseded: it applies to all courts and to all bodies required to make a decision that might have the effect of destroying a right enjoyed by an individual.

In Komo Construction Inc. v. Labour Relations Board[7], this Court upheld a decision rendered without a hearing when the parties had been given the opportunity of submitting argument in writing and the Board had issued reasons. This is a very different situation from that which is presented in this case where there was no hearing and no reasons were given. In MacDonald v. The Queen[8], this Court upheld a conviction by special Court Martial although no reasons had been given but there had been a hearing. I know of no case where

[Page 660]

a judicial decision was upheld, where there was neither a hearing nor reasons given, so that nothing shows on what basis the decision was reached. It may be different when the decision is on a purely discretionary matter such as the granting of leave to appeal, but here the decision of the Board is an adjudication on appellant’s entitlement to refugee status, a matter of right under the statute and the Convention, not a matter of discretion. In Minister of Manpower and Immigration v. Hardayal[9], this Court accepted that where the statute provided for the issue of a special certificate by administrative decision this was to be taken as final and as excluding the audi alteram partem rule, but such is not the case with respect to the determination of refugee status. This was entrusted to a board which is a “court” and must act judicially as appears from such cases as Leiba v. Minister of Manpower and Immigration[10].

I do, of course, appreciate that the validity of the Immigration Appeal Board “judgement” is not directly in question before this Court and that the decision challenged before us is the order of the Federal Court of Appeal denying leave to appeal. However, I feel it is essential for a proper appreciation of what is involved in the matter to consider fully the ultimate result, that Canada having entrusted to a special court the adjudication of claims to refugee status this was done in this case without any semblance of due process. The Court is faced with a decision without reasons, without a hearing, without any statement of the Minister’s objections, if any, to appellant’s claim for refugee status. In the Federal Court of Appeal it seems that it was indicated at the hearing that it was following its established precedents in denying leave in such cases.

An important decision referred to by counsel in this case is Minister of Manpower and Immigra-

[Page 661]

tion v. Fuentes[11]. In that case the Federal Court of Appeal reversed, on appeal by the Minister, an Immigration Appeal Board decision which Pratte J.A. speaking for the Court summarized as follows (at pp. 336-337):

The reasons for judgment of the Board indicate that, from the evidence presented at the hearings which it held, the Board concluded, first, that respondent was in fact “a refugee protected by the Convention”. As, under the Convention (as it was interpreted by the Board), respondent could not be deported from Canada, the Board also concluded that the deportation order made against respondent was invalid, and it accordingly allowed the appeal.

The reason for which the appeal was allowed and the case referred back to the Board is stated as follows (at pp. 337-338):

The “United Nations Convention Relating to the Status of Refugees” is only referred to once in the Immigration Appeal Board Act; that is in the definition of the word “Convention” in section 2. The only purpose of this definition is to clarify the meaning of the phrase “refugee protected by the Convention” which is used in sections 11(1)(c) and 15(1)(b). As I noted above, section 11(1)(c) confers a right of appeal, under certain conditions, on a person who claims to be a “refugee protected by the Convention”. As to section 15(1)(b), it gives the Board the power, where it dismisses an appeal from a deportation order, to quash that order and direct that its execution be stayed if reasonable grounds exist for believing “that the person concerned is a refugee protected by the Convention”. That being so it would appear that, in applying the Immigration Appeal Board Act, the Board may refer to the Convention Relating to the Status of Refugees for two purposes only, namely:

1. to determine whether, under section 11, a person who has been ordered deported benefits from a right of appeal to the Board, and

2. to determine whether there is a basis for the Board to grant special relief under section 15(1).

Consequently, the fact that the Immigration Appeal Board Act refers to the United Nations Convention Relating to the Status of Refugees does not have the effect of incorporating into Canadian domestic law the prohibition contained in that Convention against deporting refugees. Accordingly, a deportation order is not

[Page 662]

invalid merely by virtue of the fact that it was made against a refugee protected by the Convention.

I have grave doubts as to the correctness of this decision which, in effect, denies to refugees the rights contemplated in the Convention, substituting therefor the discretion of the Board. With respect, it is apparent that the Federal Court of Appeal in so holding overlooked the important principle stated by Lord Diplock as follows in Post Office v. Estuary Radio Ltd.[12] (at p. 757):

…there is a presumption that the Crown did not intend to break an international treaty (see Salomon v. Commissioners of Customs and Excise, [1967] 2 Q.B. 116; [1966] 3 W.L.R. 36; [1966] 2 All E.R. 340, C.A.).

The government may for reasons of national security prevent the Board from allowing some refugee appeals by filing a certificate signed by the Minister and the Solicitor General in accordance with s. 21 of the Act (now s. 83). Such a certificate will be conclusive as this Court held in Prata v. Minister of Manpower and Immigration[13]. However, I have grave doubts that the Board may otherwise properly disregard the provisions of the Convention concerning refugees.

This is obviously a question of major importance but, unless this Court can grant leave to appeal from the denial of leave by the Federal Court of Appeal, it appears that it will remain foreclosed. The Board obviously is bound to act in accordance with what the Federal Court of Appeal has decided and, if the latter systematically denies leave to appeal from any decision of the Board made in accordance with a prior decision of that Court, as we were told, the fact that the Fuentes case was not appealed will mean that the law has been thereby established and there is no possibility of a review of the question by this Court.

The right of appeal to this Court in the present case depends on s. 31 of the Federal Court Act which, as amended by s. 9 of the Act of 1974, 23 Eliz. II, c. 18, reads:

31. (1) Repealed.

[Page 663]

(2) An appeal to the Supreme Court lies with leave of the Federal Court of Appeal from a final or other judgment or determination of that Court where, in the opinion of the Court of Appeal, the question involved in the appeal is one that ought to be submitted to the Supreme Court for decision.

(3) An appeal lies to the Supreme Court from a final or other judgment or determination of the Federal Court of Appeal, whether or not leave to appeal to the Supreme Court has been refused by the Federal Court of Appeal, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment or determination is accordingly granted by the Supreme Court.

(4) Repealed.

Subsection 31(1) now repealed gave a right of appeal to this Court from a final judgment of the Federal Court of Appeal in some cases and the definition of that expression remains in s. 2 as follows:

“final judgment” means any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding; (Underlining added.)

From this definition, it is apparent that in subss. 31(2) and 31(3) “final or other judgment” includes any other “decision” of the Federal Court of Appeal. Seeing that both subsections also apply to any “determination”, I fail to see on what basis the wide meaning of these words may be narrowed down to exclude decisions such as the order from which leave to appeal was granted in this case. In support of the objection to jurisdiction, reference was made first to the judgment of this Court in Canadian Utilities Limited v. Deputy Minister of National Revenue[14]. In that case, the appeal that was quashed had been taken under the provisions of s. 58 of the Excise Tax Act (R.S.C. 1952, c. 100) the material part of which read:

[Page 664]

58. (1) Any of the parties to proceedings under section 57, namely,

…

may, upon leave being obtained from the Exchequer Court of Canada or a judge thereof, upon application made within thirty days from the making of the declaration sought to be appealed, or within such further time as the Court or judge may allow, appeal to the Exchequer Court upon any question that in the opinion of the Court or judge is a question of law.

…

(6) Any order or judgment of the Exchequer Court made under this section may be appealed to the Supreme Court of Canada in like manner as any other judgment of the Exchequer Court, and the provisions of the Exchequer Court Act as to appeals apply to any appeal taken under this subsection.

Leave to appeal to the Exchequer Court was refused by a judge of that Court and an appeal was thereupon taken to this Court under subs. 6. It appears to me that, in the context of s. 58, subs. 6, was properly construed as referring only to an appeal from the disposition made by the Exchequer Court upon an appeal, not to the refusal of leave. I fail to see how this may now serve to cut down the wide scope of the present provisions of the Federal Court Act in a different context. I must also note that the judgment of the House of Lords in Lane v. Esdaile[15] relied on in the Canadian Utilities case likewise dealt with an appeal taken as of right. After a judgment against several defendants, an appeal was taken by some of them who were ultimately successful on a further appeal to the House of Lords. Two defendants who had not appealed then sought from the Court of Appeal, more than three years after the judgment at trial, special leave to appeal under a rule providing that there should be no appeal except by special leave after the expiration of one year. The House of Lords held that no right to appeal from such refusal was given by the Appellate Jurisdiction Act 1876 under the words “an appeal shall lie to the House of Lords from any order or judgment of” the Court of Appeal. It does not appear to me that the considerations which moved the House of

[Page 665]

Lords to construe this provision as referable only to an order or judgment on an appeal are applicable to the construction of subs. 31(3) of the Federal Court Act which deals with the granting of leave to appeal not with appeals as of right. Recently in Cité de Pont Viau v. Gauthier Mfg. Ltd.[16], this Court allowed an appeal by leave from a judgment of the Quebec Court of Appeal refusing leave to appeal under the last sentence of art. 523 C.C.P. reading:

…It [the Court of Appeal] may even, notwithstanding the expiry of the delay allowed by article 494, but provided that more than six months have not elapsed since the judgment, grant special leave to appeal to a party who shows that in fact it was impossible for him to act sooner.

An inscription in appeal had been made and served within the proper time. Unfortunately, by error due to an incorrect description of the solicitors for the other party at the end of the judgment at trial, the inscription was not properly served. The appeal was quashed and the Court of Appeal refused to grant leave on the view that the error had not made it “impossible” to act in time. On reaching the conclusion that on the proper construction of the Code it was the impossibility for the party, not for its solicitor, that had to be shown, it was held that leave had been denied by reason of an erroneous construction of the legal requirement rather than on a proper exercise of discretion and, therefore, this Court allowed an appeal although it meant that the case had to go back to the Court of Appeal for hearing on the merits.

Returning now to the provisions of the Federal Court Act, I consider it important to note the continuous expansion of the provision governing appeals. In the Exchequer Court Act prior to 1949, provision for an appeal to this Court was made only from a final judgment or a judgment

[Page 666]

upon a demurrer or point of law raised by the pleadings. In 1949, the following was enacted:

82. (1) An appeal to the Supreme Court of Canada lies

(a) from a final judgment or a judgment upon a demurrer or point of law raised by the pleadings, and

(b) with leave of a judge of the Supreme Court of Canada, from an interlocutory judgment,

pronounced by the Exchequer Court in an action, suit, cause, matter or other judicial proceeding, in which the actual amount in controversy exceeds five hundred dollars.

This enactment was considered by this Court in Muzak Corporation v. Composers, Authors and Publishers Association of Canada Ltd.[17] The decision from which leave to appeal had been granted was an “order” for service out of the jurisdiction. Although there were two dissents on the propriety of this order, the Court was unanimous in holding that such an order was an “interlocutory judgment” within the meaning of s. 82. Cartwright J. said (at pp. 196‑197):

In Ex Parte Chinery ((1884), 12 Q.B.D. 342) Cotton L.J. said:—

…Now, in legal language, and in Acts of Parliament, as well as with regard to the rights of the parties, there is a well-known distinction between a “judgment” and an “order”. No doubt the orders under the Judicature Act provide that every order may be enforced in the same manner as a judgment; but still judgments and orders are kept entirely distinct. It is not said that the word “judgment” shall in other Acts of Parliament include an “order”. I think we ought to give to the words “final judgment” in this subsection their strict and proper meaning, i.e., a judgment obtained in an action by which a previous existing liability of the defendant to the plaintiff is ascertained or established—unless there is something to shew an intention to use the words in a more extended sense.

This language was adopted by Lord Esher, M.R. in Onslow v. Commissioners of Inland Revenue (1890), 25 Q.B.D. 465, but in both of these cases the order held not to be a judgment had been obtained in a proceeding

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other than an action and in the last mentioned case Lord Esher said at page 466:—

A “judgment”, therefore, is a decision obtained in an action, and every other decision is an order.

It will be observed that the judgments in both of the last mentioned cases envisage the possibility of there being something in the statutory provisions under consideration to show an intention on the part of Parliament to use the word “judgment” in a more extended sense. In the case at bar I think such an intention is shown by the circumstance, pointed out by my brother Kerwin, that if s. 82 is construed as dealing only with judgments falling strictly within the definition given by Cotton L.J. there would be nothing upon which clause (b) of subsection (1) of s. 82 could operate. A construction which would leave the clause without any effect must be avoided if possible, and, in this case, it can be avoided by giving to the word “judgment”, a sense in which it is often used and interpreting it as including orders. While, in view of the decision of this Court in British American Brewing Co. Ltd. v. The King, [1935] S.C.R. 568, I do not suggest that the interpretation section of the Supreme Court Act, the words of clause (d) of s. 2 of the first mentioned Act furnish an example of the wide sense in which the word “judgment” is frequently employed. It reads as follows:—

2. (d) “judgment”, when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof; and when used with reference to the Supreme Court, includes any judgment or order of that Court;

In my view the use in s. 31 of the words “final or other judgment or determination” indicates the intention of Parliament to broaden still more, rather than to restrict the scope of the provision allowing appeals by leave. I must point out that in Hill v. The Queen[18], this Court sitting in full was unanimous in adhering to the wide unrestricted view of the jurisdiction by leave of the Court under s. 41 of the Supreme Court Act and explicitly overruled the Goldhar[19] case and other cases which adopted its approach to deny jurisdiction such as Paul v. The Queen[20] (see per Laskin C.J. in Hill at p. 830).

[Page 668]

In my view it is important for this Court in the discharge of its general duty of ultimate supervision over the application of the law throughout Canada, to avoid putting any important question of law beyond any possibility of review. While we ought studiously to avoid interfering with the exercise of judicial discretion by the courts of appeal in the granting of leave, we ought nevertheless to be alert to the necessity of intervening if need be in order to ensure that due process of law is nowhere ignored.

I would hold that the Court has jurisdiction and that the appeal should be heard.

Appeal quashed, PIGEON, BEETZ and PRATTE JJ. dissenting.

Solicitor for the appellant: George W. Alexandrowicz, Toronto.

Solicitor for the respondent: R. Tassé, Ottawa.