Canada (Attorney General) v. Alli (F.C.A.)

Canada (Attorney General) v. Alli (F.C.A.)
IN THE MATTER OF The Family Allowances Act and Regulations AND IN THE MATTER OF Mrs. Bibi Alli Family Allowance Number 81-2090242

AND IN THE MATTER OF a Family Allowance for Mrs. Bibi Alli AND IN THE MATTER OF an appeal to a Review Committee for Mrs. Bibi Alli

Between

Federal Court Judgments: (1988) F.C.J. No. 413
Court File No. A-670-86
Federal Court of Appeal Toronto, Ontario
Pratte, Urie and Stone JJ.
Heard: April 22, 1988
Judgment: May 9, 1988

Judicial review - Family allowances - Review committee - Court of competent jurisdiction.

F. Iacobucci, Q.C., for the Applicant.

Michael Bossin, for the Respondent.

Reasons for judgment delivered by Pratte J., allowing the application; concurred in by Urie and Stone JJ.

PRATTE J.: - This section 28 application is directed against a decision of a Review Committee established pursuant to the Family Allowances Act, 1973, S.C., 1973-74, c. 44. By that decision, made on October 29, 1986, the Committee allowed an appeal from the refusal of the respondent's application for family allowance benefits.

The respondent is a citizen of Guyana who came to Canada on August 3, 1980. Her husband, who is also a citizen of Guyana, joined her about a month later. Neither were admitted to Canada. While the record does not show it, it may be assumed that, on their arrival, they were the subjects of immigration inquiries during which they claimed that they were Convention pursuant to subsection 45(1) of the Immigration Act 1976 pending a decision on their claims. It is common ground that, as late as June 3, 1984, the respondent and her husband were still in Canada without immigration status awaiting that their claims be disposed of. In 1981, however, they had obtained the authorization to work in Canada and had, since then, worked and received employment income which was subject to income tax.

The respondent and her husband have three children: two daughters who were born in Guyana (Salima, on August 21, 1972, and Sheleeza, on September 6, 1973) who came to Canada in July 1981 and a son, Kazim, who was born in Toronto on January 23, 1983.

On June 4, 1982, the respondent submitted an application for family allowances with respect to her two daughters. However, as she failed to file the documentation that was required no final decision was ever made on that application. On February 15, 1983, she filed a new application with respect, this time, to her three children. That application was refused on the ground that, having no status in Canada under the Immigration Act, 1976, neither the respondent or her husband met the requirements of paragraphs 3(1) (a) or (b) of the Family Allowance Act, 1973.2

The respondent appealed from that decision to a Committee established under section 15 of the Family Allowances Act, 1973. By a decision dated October 29, 1986, the majority of that Committee allowed the respondent's appeal. Its decision reads in part as follows:

1. The majority find that Mrs. Alli is entitied to receive Family Allowances Payments for her two eldest children commencing March 1982 and for all three of her children commencing March 1983 … the majority finds that on reading S. 2(3) of the Family Allowances Act, the intention of the legislation was to give Family Allowances benefits to parents who are resident in Canada.

The majority finds that S. 3(1) of the Family Allowances Act admits of two interpretations, based on a conjunctive or disjunctive reading of the Section. The majority adopts the disjunctive reading of S. 31 and finds that benefits must be paid "for each child whose parents are resident in Canada" (with "resident in Canada" being defined by S. 2(3 of the Family Allowances Act). …

2. Even if we had reached the contrary conclusion as a matter of statutory interpretation, we would have held S. 3(1) unconstitutional as being in violation of S. 15 of the Charter of Rights and Freedoms. We find that discrimination against residents, while visitors who may have a far more tenuous connection with this country are allowed Family Benefits, could not possibly be justified under S. 1 of the Charter.

In other words, the Committee found that the respondent was entitled to receive family allowances for two reasons. First, because they interpreted subsection 3(1) of the Act as not requiring that a child whose parents are resident in Canada should also, in order to qualify for family allowances, have one parent who meets one or the other conditions described in paragraphs 3(1) (a) and (b). And, second, because in the Committee's view, subsection 3(1) is unconstitutional as violating the principle of equality before the law enshrined in section 15 of the Canadian Charter of Rights and Freedoms. It is against that decision that this section 28 application is directed.

Counsel for the applicant argued:

1. that the interpretation of subsection 3(1) adopted by the Committee is wrong:

2. that subsection 3(1) does not violate section 15 of the Charter:

3. that, if subsection 3(1) violates section 15, it is nevertheless valid as legislation demonstrably justified in a free and democratic society within the meaning of section 1 of the Charter; and

4. that, in any event, the Committee lacked the power to rule on the constitutional validity of the statute it had to apply.

Counsel for the respondent very candidly conceded that he could not find any argument in support of the Committee's interpretation of subsection 3(1) which states clearly that, for a child to qualify for family allowances, not offly must his parents be resident in Canada, but in addition, one of them must meet the requirements described in paragraphs 3(1) (a) and (b). Insofar as it is founded on a wrong interpretation of subsection 3(1), the decision of the Committee is therefore wrong in law.

Counsel for the respondent argued persuasively, however, that this section 28 application should nevertheless be dismissed on the ground that the Committee's finding of unconstitutionality was right. Subsection 3(1) is discriminatory and violates section 15 of the Charter, said he, because it makes an unwarranted distinction, for family allowances purposes, country as mere visitors and children of persons who, like the respondent, have claimed to be Convention refugees and who, sometimes for many years, are allowed to remain and work in the country until their claim is disposed of. It is, said counsel, both unfair and unreasonable to provide, as does subsection 3(1), that the former class of children qualifies for family allowances while the latter does not.

It is not necessary, in order to dispose of this application, to discuss and rule on the validity of that submission since, in any event, the Committee could neither make a declaration as to the constitutional validity of subsection 3(1) nor allow the respondent's appeal on the basis of the unconstitutionality of that provision.

The Committee's jurisdiction, under section 15 of the Act is merely to decide whether the decision that is the object of the appeal was correctly made. Clearly, it does not include the power to make declarations as to the constitutionality of the Family Allowances Act, 1973.

In Attorney General of Canada v. David J. Vincer (Footnote: unreported decision of this Court, December 1, 1987, Court File A-132-87.), brothers Marceau and Stone both expressed the view that a tribunal established pursuant to section 15 of the Family Allowances Act, 1973, has neither the power to grant a remedy under subsection 24(1) of the Charter nor that of assuming, in deciding an appeal, the constitutional invalidity of the statutory provisions that it is called upon to apply. If that view is the correct one, there is no doubt that the decision under attack exceeded the jurisdiction of the Committee.

In order to avoid that conclusion, counsel for the respondent put forward two submissions. First, he invoked the decision rendered by this Court in Zwarich v. Attorney General of Canada, (1987) 3 F.C. 253, where it was held that an Umpire under the Unemployment Insurance Act 1971, in order to decide whether the decision of the Board of Referees is in accordance with the law, must first determine the constitutional validity of the applicable statutory provisions. The respondent's second submission was that, if the Appeal Committee lacked the power to grant remedies under section 24 of the Charter, this Court, clearly has that power and should exercise it by dismissing the section 28 application brought by the applicant.

It is certainly difficult to reconcile what I said in Zwarich with what was said in Vincer. However, for the purposes of this case, it is not necessary to choose between those two apparently conflicting decisions since there is nothing in Zwarich that can help the respondent. Clearly, for the reasons given by Marceau J. and Stone J. in Vincer, and Appeal Committee established pursuant to section 15 of the Family Allowances Act, 1973, is not a "tribunal of competent jurisdiction" within the meaning of section 24 of the Charter. Nothing was said on this subject in Zwarich. It was held in Zwarich that a tribunal, in making a decision that it is empowered to make, may ignore the statutory provisions which, in its view, contravene the constitution and are, for that reason, "of no force or effect". That proposition ahs no application here. Counsel for the respondent agreed that paragraph 31(a) and subparagraph 30(1) (b) (i) are not discriminatory. His only contention in this regard was that subparagraph 3(1) (b) (ii) was too narrowly drawn and should, in order not to discriminate, have included persons in the situation of the respondent. If that submission were well founded, subparagraph 3(1) (b) (ii) would contravene section 15 of the Charter and be, for that reason, of "no force or effect". This, of course, would not help the respondent who cannot succeed unless the Appeal Committee had the right, in deciding her appeal, to apply a new version of subparagraph 3(1) (b) (ii) incorporating the changes necessary to make it constitutional. Obviously, the Committee had no such right.

Counsel for the respondent also argued that, in any event, this Court, being a court of competent jurisdiction within the meaning of section 24 of the Charter could give the respondent the remedy she is seeking by dismissing the applicant's section 28 application. There is no merit in that submission. Section 24 does not transcend all rules of procedure. This Court is a court of appeal and review. It is not a court of first instance. In reviewing a decision of a tribunal lacking the power to grant remedies under section 24, the only question that this Court may answer is whether that decision was correctly made. In answering that question, the Court cannot exercise its section 24 power.

I would for these reasons grant the application, set aside the decision under attack and refer the matter back to the Committee in order that it be decided on the basis that the respondent was not entitled to the allowances she was claiming.

PRATTE J.

URIE J.

STONE J.

Footnote

Subsection 3(1) of the Family Allowances Act, 1973, S.C., 1973-74, C. 44, reads as follows:

3.(1)Subject to this Act, there shall be paid out of the Consolidated Revenue Fund, for each month, a family allowance of twenty dollars or such greater amount as may be determined from time to time pursuant to section 13 in respect of each child whose parents are resident in Canada or deemed to be resident in Canada in prescribed circumstances and who has at least one parent who

(a)is a Canadian citizen; or (b) is a person who

(i)is a permanent resident within the meaning of the Immigration Act, 1976, or (ii) in prescribed circumstances, is a visitor in Canada or the holder of a permit in Canada within the meaning of the Immigration Act, 1976.

It must be observed that no regulation was ever made prescribing circumstances in which parents are deemed to be resident in Canada for the purposes of subsection 3(1).

However, subsection 2(3) of the Regulations made pursuant to the Act prescribes in the following terms the circumstances that are referred to in subparagraph 3(1) (b) (ii) of the Act:

2.(3)For the purposes of subparagraph 3(1) (b) (ii) of the Act, the following circumstances are prescribed:

(a)the period of time for which

(i)the parent has been admitted as a visitor in Canada and, where applicable, authorized to remain as a visitor in Canada, or (ii) the permit has been issued to the parent and, where applicable, extended

is at least 12 months;

(b)the parent is not

(i)a member of a military force present in Canada for