Bhatnager v. Minister of Employment and Immigration, (1990) 111 N.R. 185 (SCC)

• Judge: Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday June 21, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 111 N.R. 185 (SCC);36 FTR 91;12 Imm LR (2d) 81;43 CPC (2d) 213;[1990] 2 SCR 217;21 ACWS (3d) 1143;JE 90-975;[1990] CarswellNat 73;44 Admin LR 1;[1990] SCJ No 62 (QL);1990 CanLII 120 (SCC);111 NR 185;71 DLR (4th) 84

Bhatnager v. MEI (1990), 111 N.R. 185 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Minister of Employment and Immigration and The Secretary of State for External Affairs (appellants) v. Debora Bhatnager (respondent)

(20771)

Indexed As: Bhatnager v. Minister of Employment and Immigration

Supreme Court of Canada

Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.

June 21, 1990.

Summary:

A wife applied for mandamus to compel the Minister of Employment and Immigration to process her husband's permanent residence application. There had been a five year delay in processing his application, while he remained in India. The wife obtained an order from the Federal Court of Canada, Trial Division, requiring that the Minister of Employment and Immigration and the Secretary of State for External Affairs direct their officials to produce certain relevant documents by a specified date. The order was served on the solicitors for the M.E.I. and the Secretary of State. The documents were not produced on time. The wife applied under Federal Court Rule 355 for the M.E.I. and the Secretary of State to show cause why they should not be held in contempt.

The Federal Court of Canada, Trial Division, in a decision reported 2 F.T.R. 18, held that the M.E.I. and the Secretary of State 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 noncompliance of the order by their officials. The wife appealed.

The Federal Court of Appeal, in a decision reported 82 N.R. 360, allowed the appeal and held that the M.E.I. and Secretary of State were in contempt of court. The M.E.I. and Secretary of State appealed.

The Supreme Court of Canada allowed the appeal, set aside the decision of the Federal Court of Appeal and restored the decision of the Trial Division. The court held that the M.E.I. and Secretary of State ought not to have been held in contempt.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - Vicarious liability - [See Criminal Law - Topic 141].

Civil Rights - Topic 4904

Presumption of innocence - General principles - Vicarious liability - [See Criminal Law - Topic 141].

Civil Rights - Topic 3164

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Vicarious liability - [See Criminal Law - Topic 141].

Contempt - Topic 1

General principles - Nature of contempt - The Supreme Court of Canada stated that "an allegation of contempt of court is a matter of criminal (or at least quasi-criminal) dimension" - See paragraph 14.

Contempt - Topic 682

Contempt - What constitutes - Requirement of knowledge of court order - The Supreme Court of Canada stated that the common law has always required personal service or actual knowledge of a court order as a precondition to liability in contempt - The court acknowledged that there may be circumstances where a client's knowledge of the court order may be inferred from service on a solicitor - However, in order to infer such knowledge respecting Crown ministers there must be circumstances which reveal a special reason for bringing the order to the attention of the minister - Further the Federal Court Rules permitting service on a solicitor do not apply in the criminal or quasicriminal context of a contempt prosecution - See paragraphs 14 to 23.

Contempt - Topic 682

Contempt - What constitutes - Requirement of knowledge of court order - A citizen obtained a court order requiring the Minister of Employment and Immigration and the Secretary of State for External Affairs (the ministers) to direct their officials to produce certain documents by a certain date - The order was served only on the ministers' solicitors - There was noncompliance - The citizen commenced contempt proceedings against the ministers - The Supreme Court of Canada held that the ministers could not be held in contempt because they had no knowledge of the court order and knowledge could not be inferred from service of the court order on their solicitors - See paragraphs 1 to 23.

Contempt - Topic 2648

Defences - Lack of notice of disobeyed court order - [See first and second Contempt - Topic 45].

Contempt - Topic 3050

Persons liable - Cabinet ministers - [See first and second Contempt - Topic 45].

Contempt - Topic 3050

Persons liable - Cabinet ministers - Vicarious liability - A citizen obtained a court order requiring the Minister of Employment and Immigration and the Secretary of State for External Affairs (the ministers) to direct their officials to produce certain documents by a certain date - There was noncompliance - The citizen commenced contempt proceedings against the ministers, alleging that the ministers were vicariously liable for the acts of the officials - The Supreme Court of Canada rejected this argument, holding that the ministers were not vicariously liable - See paragraphs 24 to 28.

Contempt - Topic 5022

Practice - Notice - Requirement of - [See first and second Contempt - Topic 45].

Contempt - Topic 5083

Practice - Evidence and proof - Burden of proof - The Supreme Court of Canada stated that it is necessary for the constituent elements of contempt to be proved beyond reasonable doubt - See paragraph 14.

Criminal Law - Topic 141

Vicarious liability - General - In the case at bar the Supreme Court of Canada found it unnecessary to consider whether a finding of vicarious criminal liability would constitute a violation of ss. 7 or 11(d) of the Charter - The court opined however that "it seems clear that any argument in favour of such liability would have grave difficulty overcoming the decision of this court in Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), 63 N.R. 266" - See paragraph 28.

Criminal Law - Topic 144

Vicarious liability - Criminal responsibility of corporations - Theory of identification - Applicability to individuals - The Supreme Court of Canada stated that "the theory of identification, according to which a corporation may be held criminally liable for the acts of the directing mind of the corporation, is uniquely inapplicable to natural persons" - See paragraph 27.

Criminal Law - Topic 147

Vicarious liability - Contempt - [See second Contempt - Topic 3050].

Criminal Law - Topic 148

Vicarious liability - For acts of delegate - The Supreme Court of Canada stated that "the principle of delegation, according to which an individual may be held criminally liable for the acts of his or her delegate has long been understood to apply, if at all, to cases in which the delegator is under a specific statutory duty that has been contravened by the delegate" - The court expressed no opinion on the correctness of this apparent departure from the general rule against vicarious liability in criminal law - See paragraph 26.

Cases Noticed:

Poje v. Attorney General of British Columbia, [1953] 1 S.C.R. 516, refd to. [para. 14].

In re Bramblevale Ltd., [1970] Ch. 128 (C.A.), refd to. [para. 14].

Kimpton v. Eve (1813), 2 V. & B. 349; 35 E.R. 352, refd to. [para. 16].

Ex parte Langley (1879), 13 Ch. D. 110 (C.A.), refd to. [para. 16].

Baxter Laboratories of Canada Ltd., Travenol Laboratories Inc. and Baxter Travenol Laboratories Inc. v. Cutter (Canada) Ltd., [1983] 2 S.C.R. 388; 50 N.R. 1, refd to. [para. 16].

Avery v. Andrews (1882), 51 L.J. Ch. 414, refd to. [para. 17].

Re Gordon MacKay & Co. and Dominion Rubber Co., [1946] 3 D.L.R. 422 (Ont. C.A.), refd to. [para. 22].

Bank of British North America v. St. John & Quebec R. Co. (1920), 52 D.L.R. 557 (N.B.C.A.), aff'd 62 S.C.R. 346, refd to. [para. 23].

Re Botiuk and Collision (1979), 26 O.R.(2d) 580 (C.A.), refd to. [para. 23].

National Trust Co. v. Bouckhuyt (1987), 23 O.A.C. 40; 61 O.R.(2d) 640 (C.A.), refd to. [para. 23].

Allen v. Whitehead, [1930] 1 K.B. 211, refd to. [paras. 24, 26].

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241, refd to. [paras. 24, 25, 27].

R. v. Stevanovich (1983), 7 C.C.C.(3d) 307 (Ont. C.A.), refd to. [para. 26].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 69 B.C.L.R. 145; 36 M.V.R. 240; 18 C.R.R. 30; 24 D.L.R.(4th) 536, refd to. [para. 28].

R. v. Burt, [1988] 1 W.W.R. 385; 60 Sask.R. 100 (C.A.), refd to. [para. 28].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 28].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 46 [para. 21]; sect. 52 [para. 11].

Federal Court Rules, generally [paras. 8, 10]; rule 308 [paras. 20, 22]; rule 311(1)(a), rule 311(2)(a) [para. 20]; rule 355(2) [para. 14]; rule 355(4) [para. 22].

Authors and Works Noticed:

Mewett and Manning, Criminal Law (2nd Ed. 1985), p. 64 [para. 26].

Counsel:

Harold Veale, Q.C., and Eric Bowie, Q.C., for the appellants;

Clayton Ruby and Michael Code, for the respondent.

Solicitors of Record:

John C. Tait, Ottawa, Ontario, for the appellants;

Rudy & Edwardh, Toronto, Ontario, for the respondent.

This appeal was heard on March 19, 1990, before Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

The decision of the court was rendered in both official languages on June 21, 1990, by Sopinka, J.: