Bhatnager v. Minister of Employment and Immigration, (1985) 2 F.T.R. 18 (TD)

• Judge: Strayer, J.
• Court: Federal Court (Canada)
• Case Date: December 20, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 2 F.T.R. 18 (TD)

Bhatnager v. MEI (1985), 2 F.T.R. 18 (TD)

MLB headnote and full text

Bhatnager v. Minister of Employment and Immigration and Secretary of State for External Affairs

(No. T-1225-85)

Indexed As: Bhatnager v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

Strayer, J.

December 20, 1985.

Summary:

A wife applied for mandamus to compel the processing of her husband's application for permanent residence in Canada. The husband had been waiting in India since 1981. The wife obtained a court order requiring that the Minister of Employment and Immigration and the Secretary of State for External Affairs direct their officials to produce certain documents by a specified date. The documents were not produced in time. The wife applied under Rule 355 for the Minister and Secretary to show cause why they should not be held in contempt.

The Federal Court of Canada, Trial Division, held that the Minister and Secretary were not guilty of contempt, because it was not proved that they had notice of the order and they were not vicariously liable for the neglect of their officials.

Contempt - Topic 684

What constitutes - Judgments and orders - Disobedience of - The Federal Court of Canada, Trial Division, held that the court order allegedly violated must be strictly construed - See paragraph 16.

Contempt - Topic 684

What constitutes - Judgments and orders - Disobedience of - A court order ordered the Minister to direct his officials to do a certain act - There was no evidence that the order was personally served on the Minister or that he had actual knowledge of it - The Federal Court of Canada, Trial Division, held that the Minister was not guilty of contempt where the order was not complied with, because the Minister had no opportunity to obey the order or to see that it was obeyed - See paragraphs 21 to 25.

Contempt - Topic 3050

Persons liable - Particular persons - Cabinet Ministers - The Federal Court of Canada, Trial Division, held that a Minister was not vicariously liable for his officials' non-compliance with a court order ordering the Minister to direct his officials to do something, unless the Minister participated directly or had knowledge of the failure to comply with the order - See paragraphs 26 to 34.

Contempt - Topic 5010

Practice - Persons entitled to commence proceedings - A citizen obtained a court order ordering the Minister to direct his officials to do a certain act - The failure to comply with the order was prejudicial to the preparation of the citizen's case against the Minister, which was not yet finished - The Federal Court of Canada, Trial Division, held that the citizen had standing to commence contempt proceedings - See paragraph 16.

Contempt - Topic 5081

Practice - Evidence and proof - General - The Federal Court of Canada, Trial Division, held that hearsay evidence was not admissible in a contempt hearing - See paragraph 13.

Contempt - Topic 5083

Practice - Evidence and proof - Burden of proof - The Federal Court of Canada, Trial Division, held that the onus was on the person alleging civil or criminal contempt to prove it beyond a reasonable doubt - See paragraph 12.

Cases Noticed:

Glazier v. Union Contractors Ltd. et al. (1960), 129 C.C.C. 150 (B.C.C.A.), refd to. [para. 12].

Re Bramblevale Ltd., [1969] 3 All E.R. 1062 (C.A.), refd to. [para. 12].

R. v. Cohn (1984), 4 O.A.C. 293; 15 C.C.C.(3d) 150 (C.A.), refd to. [para. 12].

Re O'Brien (1889), 16 S.C.R. 197, not folld. [para. 15].

Poje v. A.G. for British Columbia, [1953] 1 S.C.R. 516, appld. [para. 15].

Redwing Limited v. Redwing Forest Products Limited (1947), 177 L.T.R. 387 (Ch.D.), refd to. [para. 16].

Northwest Territories Public Service Association et al. v. Commissioner of the Northwest Territories et al. (1979), 21 A.R. 1; 107 D.L.R.(3d) 458 (N.W.T. C.A.), refd to. [para. 16].

Ex parte Langley et al. (1879), 13 Ch.D. 110 (C.A.), refd to. [para. 23].

R. v. Woodyatt (1895), 27 O.R. 113 (Q.B.D.), refd to. [para. 23].

Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (1974), 4 O.R.(2d) 585 (Ont. H.C.), refd to. [para. 23].

Ministry of Housing and Local Government v. Sharp, [1970] 2 Q.B. 223 (C.A.), dist. [para. 31].

Heatons Transport (St. Helens) Ltd. v. Transport and General Workers Union, [1972] 2 All E.R. 1214 (H. L.), refd to. [para. 32].

R. v. Evening Standard Co. Ltd., [1954] 1 Q.B. 578, refd to. [para. 33].

Steiner v. Toronto Star Ltd. et al. (1956), 1 D.L.R.(2d) 297 (Ont. H.C.), refd to. [para. 33].

Statutes Noticed:

Federal Court Rules, rule 355 [para. 1].

Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1970, c. P-34, sect. 3 [para. 4].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 2 [para. 27].

Employment and Immigration Reorganization Act, S.C. 1976-77, c. 54, sect. 9(2) [para. 27].

Department of External Affairs Act, S.C. 1980-81-82-83, c. 167, sect. 3(2), sect. 11(2) [para. 27].

Authors and Works Noticed:

Hogg, Liability of the Crown (1971), p. 13 [para. 27].

Canadian Encyclopedic Digest (Ont.)(3rd Ed. 1984), Title 40, s. 397 [para. 29].

Miller, Contempt of Court (1976), p. 173 [para. 32].

Borrie and Lowe, Law of Contempt (2nd Ed. 1983), pp. 252-258 [para. 33].

Counsel:

Appearances: C. Ruby and M. Code, for the applicant;

J.E. Thompson and M. Duffy, for the respondents.

Solicitors of Record:

Ruby & Edwards, Toronto, Ontario, for the applicant;

Frank Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard on December 5 and 6, 1985, at Toronto, Ontario, before Strayer, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on December 20, 1985.