[2001] 1 F.C. 257
T-1892-99
Jacob Fast (Applicant)
v.
The Minister of Citizenship and Immigration and The Attorney General of Canada (Respondents)
Indexed as: Fast v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.—Ottawa, April 10, 11 and 27; July 11, 2000.
Administrative law — Statutory appeals — Motion to strike application for judicial review of notice of proposed citizenship revocation on ground applicant admitted to Canada or obtained citizenship by false representations, fraud, knowingly concealed material circumstances — Federal Court Act, s. 18.5 excluding from judicial review cases where “appeal as such” provided by Parliament in another manner — Citizenship Act, s. 18(1)(b) providing for reference to Court for declaration Canadian citizenship obtained by false representation, fraud, knowingly concealing material circumstances — Reference trial to determine, as matter of fact, whether citizenship obtained in manner proscribed by Parliament — Judge must make numerous procedural rulings as well as findings of law during trial, conducted as action under Federal Court Rules, 1998, Part 4 — Adopting principles established in Canada Post Corp. v. Canada (Minister of Public Works) for what review process constituting appeal for s. 18.5 purposes, s. 18(1)(b) reference process, coupled with Rules, Part 4, providing vehicle whereby soundness of notice of revocation tested — Parliament intended all matters integrally connected be decided within reference framework.
Federal Court Jurisdiction — Trial Division — Minister issuing notice of proposed citizenship revocation — Application for judicial review — Minister moving to have application struck — Federal Court Act, s. 18.5 excluding from judicial review cases where “appeal as such” otherwise provided for by Parliament — Meaning of phrase “an appeal as such” — Citizenship Act, s. 18(1)(b) providing for reference to Court to decide whether citizenship obtained by false representation, concealing material circumstances — If Court finds statutory requirement not met that is bar to citizenship revocation, deportation — Reference process mandated by s. 18(1)(b) providing procedure for testing soundness of revocation notice — Parliament’s intention that such matters be decided within reference framework — Judicial review application struck as could not possibly succeed.
Citizenship and Immigration — Status in Canada — Citizens — Citizenship Act, s. 18(1)(b) providing for reference to Court to determine whether citizenship obtained by false representation, fraud, knowingly concealing material circumstances — Application for judicial review of notice of proposed revocation of citizenship on ground obtained by false representations, fraud, knowingly concealing material circumstances — Federal Court Act, s. 18.5 excluding from judicial review cases where “appeal as such” provided by Parliament in another manner — Judicial review application struck — S. 18(1)(b) reference process, Federal Court Rules, 1998, Part 4, providing vehicle whereby soundness of revocation notice can be tested — Parliament intended all matters integrally connected be decided within reference framework.
Practice — Pleadings — Motion to strike — Application for judicial review of notice of proposed revocation of citizenship on ground applicant admitted to Canada for permanent residence or obtained citizenship by false representations, fraud, or knowingly concealing material circumstances — Citizenship Act, s. 18(1)(b) providing for reference of such cases to Court — Federal Court Act, s. 18.5 excluding from judicial review cases where “appeal as such” provided by Parliament in another manner — Court may strike judicial review application so clearly improper as to be bereft of any possibility of success — Motion allowed — Minister not establishing no possibility of success on grounds no justiciable issue because notice not affecting applicant’s rights, no exercise of statutory power, arguments representations on application to immigrate extraneous to subsequent acquisition of citizenship, failure to divulge wartime activities extraneous consideration because not grounds to reject applicant for immigration at relevant time — But judicial review precluded by Federal Court Act, s. 18.5 — S. 18(1)(b) reference process, Federal Court Rules, 1998, Part 4, providing vehicle whereby soundness of revocation notice tested.
Construction of statutes — Federal Court Act, s. 18.5 excluding from judicial review cases where “appeal as such” provided by Parliament in another manner — Citizenship Act, s. 18(1)(b) providing for reference to Court for declaration Canadian citizenship obtained by false representation, fraud, knowingly concealing material circumstances — Whether process appeal for s. 18.5 purposes question of substance, not form — Word “appeal” not term of art — S. 18(1)(b) reference “appeal as such” — Application for judicial review of notice of revocation of citizenship struck.
This was a motion to strike an application for judicial review. Applicant immigrated to Canada in 1947 and became a citizen in 1954. In 1999 he received a notice of proposed revocation of citizenship advising that the Minister of Citizenship and Immigration intended to make a report to the Governor in Council that he had obtained citizenship by false representations or fraud in that in 1947 he failed to divulge to Canadian officials that he was a German citizen, and therefore an Enemy Alien inadmissible to Canada and that his activities during the Second World War included collaboration with the German occupation authorities in Ukraine and other wartime activities which would have rendered him inadmissible at the time. After advising the Minister on a “without prejudice” basis that he wanted the case referred to the Federal Court Trial Division, the applicant filed an application for judicial review seeking to quash the revocation notice, prohibit the Minister from referring the case to this Court, and from reporting to the Governor in Council. The Minister and Attorney General moved to have the application for judicial review dismissed or struck on the grounds that: (1) the action was not justiciable because the notice did not affect the applicant’s rights and, in that context, the notice was not an exercise of jurisdiction or powers conferred by or under the Act within Federal Court Act, section 2, or (2) the judicial review application was barred by Federal Court Act, section 18.5, which excludes from judicial review cases where an “appeal as such” is provided by Parliament in another manner. Subsequently, the Minister referred the case to this Court for a finding pursuant to Citizenship Act, paragraph 18(1)(b), that applicant had obtained citizenship by false representation, fraud or by knowingly concealing material circumstances. The Court may strike a judicial review application “which is so clearly improper as to be bereft of any possibility of success”. Applicant argued that because of the vagueness of “other wartime activities”, “including”, “collaboration” and “association”, he did not know what was alleged to have been concealed or represented. As a result, the Minister acted beyond her jurisdiction in issuing the notice, which is inconsistent with section 18. He also argued that the Minister committed a jurisdictional error because of an extraneous consideration in alleging that he had made a misrepresentation in 1947 to immigration officials. Such misrepresentation, if made, was irrelevant to the 1954 processing of his citizenship application under the then Citizenship Act. Applicant further attacked the notice on the ground that in 1947 immigration officials did not have legal authority to reject an applicant on the basis of failure to divulge wartime activities.
The issue was whether the judicial review application was so clearly improper as to be bereft of any possibility of success.
Held, the motion should be allowed on the ground that the judicial review application is barred by Federal Court Act, section 18.5.
(1) The Minister and the Attorney General did not demonstrate that the judicial review application had no possibility of success on the grounds of no justiciable issue and no exercise of statutory power. First, it was debatable whether the allegations met the requirements established by case law given the flexibility which the Minister reserved upon herself to include other activities than those specified in the notice. But there was no substance to the argument that the applicant did not appreciate what was meant in the notice as to his collaboration or association with the German wartime authorities. The applicability of cases which have held that a judicial review application is not justiciable where an individual’s rights were not affected, was debatable in the context of applicant’s argument which focussed on the necessity of compliance with a statutory requirement related to the adequacy of the content of the prescribed notice. Furthermore, the Minister and the Attorney General did not establish that the Minister, in issuing the notice, was not exercising a statutory power contemplated by Federal Court Act, section 2. Second, on the face of the record, it was debatable whether what applicant had said to officials in 1947 when he applied to immigrate to Canada was extraneous to his acquisition of citizenship in 1954. Furthermore, the authority of immigration officials to have excluded him on security grounds was arguable.
(2) The debate on the second ground focussed on the meaning of “an appeal as such” in Federal Court Act, section 18.5. Under Citizenship Act, paragraph 18(1)(b) the Court must decide whether the person has “obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances”. A negative finding is a bar to revocation of citizenship and consequent deportation. A reference is effectively a trial to determine, as a matter of fact, whether citizenship was obtained in a manner proscribed by Parliament. During that trial, which is conducted through the avenue of an action under Part 4 of the Federal Court Rules, 1998, a judge is necessarily called upon to make numerous procedural and evidentiary rulings as well as to make findings of law. Determining whether a process constitutes an appeal for section 18.5 purposes requires a substantive rather than formal analysis thereof. The word “appeal” is not a term of art. Adopting the principles established in Canada Post Corp. v. Canada (Minister of Public Works), the reference process mandated by paragraph 18(1)(b), coupled with Part 4 of the Rules (which under rule 169 govern references), provides a vehicle whereby the soundness of the notice of revocation can be tested and reviewed on the grounds set out in the application for judicial review. The judicial review application could not possibly succeed and must be struck. Clearly, Parliament intended that all matters, including those advanced in the judicial review application integrally connected to the reference process, be decided within the reference framework.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, s. 44.
Canadian Citizenship Act, R.S.C. 1952, c. 33.
Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 14(5), 18.
Citizenship Act, S.C. 1974-75-76, c. 108.
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5), 18.5 (as enacted idem).
Federal Court Rules, 1998, SOR/98-106, RR. 169, 171, 208.
Immigration Act, R.S.C. 1927, c. 93, s. 3(1).
Interpretation Act, R.S.C., 1985, c. I-21, s. 44(d)(iii).
CASES JUDICIALLY CONSIDERED
APPLIED:
David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (1994), 58 C.P.R. (3d) 209; 176 N.R. 48 (C.A.); Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; 142 N.R. 173 (F.C.A.); leave to appeal to S.C.C. denied [1992] 2 S.C.R. viii; Canada Post Corp. v. Canada (Minister of Public Works) (1993), 21 Admin. L.R. (2d) 152; 68 F.T.R. 235 (F.C.T.D.); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 17; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; (1997), 1 Admin. L.R. (3d) 1; 118 C.C.C. (3d) 443; 14 C.P.C. (4th) 1; 10 C.R. (5th) 163; 40 Imm. L.R. (2d) 23; Minister of National Revenue v. Parsons, [1984] 2 F.C. 331 [1984] CTC 352; (1984), 84 DTC 6345 (C.A.).
CONSIDERED:
Canadian Pasta Manufacturers’ Assn. v. Aurora Importing & Distributing Ltd., [1997] F.C.J. No. 493 (C.A.); Canada (Minister of Citizenship and Immigration) v. Dueck (1998), 154 F.T.R. 241; 47 Imm. L.R. (2d) 162 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Odynsky (1999), 166 F.T.R. 255; 49 Imm. L.R. (2d) 192 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Podins (1999), 171 F.T.R. 161 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (T.D.) (QL); Canada (Secretary of State) v. Luitjens, [1989] 2 F.C. 125 (1988), 6 Imm. L.R. (2d) 231 (T.D.); Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203 (1998), 155 F.T.R. 1; 50 Imm. L.R. (2d) 216 (T.D.); Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161; 50 Imm. L.R. (2d) 1 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1; 42 Imm. L.R. (2d) 248 (F.C.T.D.); Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30 N.R. 119; Optical Recording Corp. v. Canada, [1991] 1 F.C. 309 [1990] 2 C.T.C. 524; (1990), 90 DTC 6647; 116 N.R. 200 (C.A.); Cangene Corp. v. Eli Lilly and Co. (1995), 63 C.P.R. (3d) 377; 101 F.T.R. 238 (F.C.T.D.); Albion Transportation Research Corp. v. Canada, [1998] 1 F.C. 78 (1997), 133 F.T.R. 250; 97 DTC 5481 (T.D.); Aliments Prince Foods Inc. v. Canada (Department of Agriculture and Agri-Food) (1999), 164 F.T.R. 104 (F.C.T.D.); Shun v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 211; 206 N.R. 7 (F.C.A.).
REFERRED TO:
Canada (Minister of Citizenship and Immigration) v. Fast, [2000] F.C.J. No. 552 (T.D.) (QL); Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694 (1995), 125 D.L.R. (4th) 559; 184 N.R. 260 (C.A.); Krause v. Canada, [1999] 2 F.C. 476 (1999), 19 C.C.P.B. 179; 236 N.R. 317 (C.A.); Union of Nova Scotia Indians v. Maritimes and Northeast Pipeline Management Ltd. (1999), 243 N.R. 205 (F.C.A.); Rich Colour Prints Ltd. v. Deputy Minister of National Revenue, [1984] 2 F.C. 246 (1984), 60 N.R. 235 (C.A.).
AUTHORS CITED
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
MOTION to strike an application for judicial review of a notice of proposed revocation of citizenship on the grounds that it was obtained by false representations or fraud. Motion granted on the ground that since the reference process mandated by Citizenship Act, paragraph 18(1)(b) constitutes a mechanism for testing the soundness of the revocation notice, Federal Court Act section 18.5 provides that it is not subject to judicial review.
APPEARANCES:
Peter K. Doody and Lawrence A. Elliot for applicant.
Peter A. Vita, Q.C. and Madeleine Schwarz for respondent.
SOLICITORS OF RECORD:
Borden Ladner Gervais, Ottawa, for applicant.
Deputy Attorney General of Canada, for respondent.
The following are the reasons for order rendered in English by
Lemieux J.:
INTRODUCTION
[1] Jacob Fast (the applicant) received from the Minister of Citizenship and Immigration (the Minister) a notice of proposed revocation of his citizenship dated September 4, 1999 (the notice).
[2] Mr. Fast had immigrated to Canada in 1947 and had become a Canadian citizen in 1954.
[3] The notice advised Mr. Fast that the Minister intended to make to the Governor in Council a report pursuant to sections 10 and 18 of the Citizenship Act [R.S.C., 1985, c. C-29] (the Act) on the following two grounds:
1) You have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances in that in 1947 you failed to divulge to Canadian officials responsible for selecting applicants wishing to come to Canada and all other immigration officials:
— That you were a German Citizen and therefore an Enemy Alien and inadmissible to Canada; and/or
2) That you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances in that, in 1947, you failed to divulge to Canadian officials responsible for selecting applicants wishing to come to Canada your activities during the Second World War, including:
— Your collaboration with German occupation authorities in Ukraine;
— Your association with the German-sponsored indigenous auxiliary police forces of Zaporozhye;
— your association with the German Security Police and Security Service (Sicherheitspolizei und SD);
OR
— Other wartime activities in which you were involved and which would have rendered you inadmissible to Canada at the time of your coming to Canada.
[4] On October 29, 1999, Mr. Fast, after having advised, on a without prejudice basis, the Minister he wanted her to refer, in accordance with the Act and the notice, the case to the Federal Court Trial Division, filed, in this Court, an application for judicial review.
[5] In that application, Mr. Fast seeks the following remedies:
(a) an order quashing the notice;
(b) an order prohibiting the respondent Minister from referring the case to this Court;
(c) an order prohibiting the Minister from reporting to the Governor in Council that he has either been admitted to Canada for permanent residence or obtained his Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances.
[6] On December 3, 1999, the Minister and the Attorney General for Canada applied to this Court to dismiss or strike Mr. Fast’s application for judicial review.
[7] On March 3, 2000, the Minister referred the case to this Court pursuant to rules 169 and 171 of the Federal Court Rules, 1998 [SOR/98-106] (the Rules) by filing a statement of claim in Court file T-453-00 [[2000] F.C.J. No. 552 (T.D.) (QL)] naming Jacob Fast as defendant and seeking from this Court, pursuant to paragraph 18(1)(b) of the Act, a finding that Mr. Fast had obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
THE LEGISLATION
[8] The relevant provisions of the Citizenship Act of 1976 [S.C. 1974-75-76, c. 108] in force at this time [R.S.C., 1985, c. C-29] are sections 10 and 18. They read:
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
…
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. [Emphasis mine.]
ANALYSIS
I. The definition of the issues
(a) The test on a motion to strike
[9] There is no doubt the burden on the Minister and the Attorney General for Canada is a heavy one in order to succeed on this motion to strike Mr. Fast’s application for judicial review. The reason this is so is because the courts have said the proper way to contest an application for judicial review which a respondent thinks is without merit is to appear and argue at the hearing of the judicial review application.
[10] In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.), at page 600, Strayer J.A. said the Court could, however, strike a judicial review application “which is so clearly improper as to be bereft of any possibility of success”. He added that “[s]uch cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion”.
[11] Canadian Pasta Manufacturers’ Assn. v. Aurora Importing & Distributing Ltd., [1997] F.C.J. No. 493 (C.A.) is an example where a judicial review application was struck. In that case, the Federal Court of Appeal did so because it was of the opinion the application for judicial review [at paragraph 1] “could not possibly succeed”.
(b) The basis for the motion to strike by the Minister and the Attorney General
[12] The Minister and the Attorney General of Canada advanced two main grounds justifying striking at this stage Mr. Fast’s application for judicial review. First, they say the application is not justiciable because the notice and, for that matter, this Court’s decision on the reference, whatever it may be, does not affect Mr. Fast’s rights and, in that context, the notice is not an exercise of jurisdiction or powers conferred by or under the Act within the meaning of subsection 2(1) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 1)]. Second, the application for judicial review cannot succeed because it is barred by section 18.5 [as enacted idem, s. 5] of the Federal Court Act since the reference made by the Minister to this Court is an alternative route, an appeal as such, prescribed by Parliament which must be pursued rather than by way of judicial review.
[13] As a backup alternative argument, the Minister and the Attorney General for Canada argued, at the very least, the application for judicial review attacking ground 1 of the notice should be struck because German citizens were prohibited, as enemy aliens, from coming to Canada in 1947.
(c) The position advanced by Mr. Fast
(i) Overview
[14] Mr. Fast’s counsel argued the motion to strike his judicial review application should fail because it does not fit within the narrow exception carved out in David Bull Laboratories, supra, i.e. one which is so clearly improper as to be bereft of any possibility of success.
[15] To demonstrate their proposition, counsel to Mr. Fast explained the basis or merits of the judicial review application which they had launched.
(ii) Ground one—no adequate notice
[16] Counsel for Mr. Fast based their arguments on this point by referring to three decisions of this Court in revocation of citizenship cases: Canada (Minister of Citizenship and Immigration) v. Dueck (1998), 154 F.T.R. 241; Canada (Minister of Citizenship and Immigration) v. Odynsky (1999), 166 F.T.R. 255 (F.C.T.D.); and Canada (Minister of Citizenship and Immigration) v. Podins (1999), 171 F.T.R. 161.
[17] In Dueck, supra, Mr. Justice Noël, then with the Trial Division, established two principles about the significance of the notice. First, he said the matter referred to this Court by the Minister under section 18 of the Act is the case as set out by the Minister in the notice. As a result, it was not open to the Minister in a reference before the Court to seek a determination on an issue that does not come within the case as set out by the Minister in her notice. Second, while section 18 of the Act does not specify the extent of the notice to be given, that notice must convey to the person both the essence of the alleged false representation which is said to have taken place and the intent to seek revocation as a result thereof. Mr. Justice Noël based his conclusion that under paragraphs 18(1)(a) and (b) of the Act, the notice presents the person with a choice of either not responding to the notice or requesting the Minister to refer the case to the Court. His view was that, in order for the person affected to decide which course of action to choose, he or she must know what is said to have been concealed or misrepresented.
[18] In Odynsky, supra, Mr. Justice MacKay of this Court said the notice of revocation must be considered significant in defining, albeit in brief terms, the basis of the Minister’s decision to seek revocation of the citizenship of the defendant. Where a person does not request a referral of the matter to this Court, he concluded it is the notice of revocation which sets the framework for any subsequent report to the Governor in Council by the Minister recommending revocation of citizenship of the person concerned. He wrote this at paragraph 20 [page 260] of his decision:
I agree with Noël J. that within the scope, or the purview, or the framework set by the terms of the Notice of Revocation, the Summary of facts and evidence (or under the current Rules, the Minister’s Statement of claim) may provide particulars that the Minister will seek to establish in relation to the general terms in the Notice. Insofar as those later filed statements allege facts outside the scope of the Notice of Revocation, those allegations are extraneous, and irrelevant to the issue defined for the Court, and for the defendant, by the Notice of Revocation. [Emphasis mine.]
[19] In Podins, supra, Mr. Justice McKeown ruled on an allegation the defendant’s service in the Waffen SS did not come within the ambit of the notice of revocation directed at him. He did so in these words at paragraph 11 [pages 166-167] of his decision:
In my view, the allegation that Mr. Podins collaborated with German authorities by virtue of his membership in the Waffen SS does not come within “the case” as set out in the Notice. The Notice specifies that the “collaboration” attributed to the defendant pertains to his alleged membership in the Latvian Auxiliary Police and his “work in such capacity”. This wording in effect limits the scope of the allegedly collaborationist activities to Mr. Podins’ employment at Valmiera EG, and precludes the introduction of the other allegations post-dating that period. As the “case” against Mr. Podins does not encompass allegations of membership in the Waffen SS, it is not necessary to make findings of fact on that issue. [Emphasis mine.]
[20] Based on these authorities, counsel to Mr. Fast take aim at the notice issued to him for several reasons with the principal one focussed at the basket allegation “or other wartime activities in which you were involved and which would render you inadmissible to Canada at the time of your coming to Canada”. This catch-all, as they describe it, indicates the Minister is proposing to revoke Mr. Fast’s citizenship for reasons unknown to her and necessarily unknown to Mr. Fast who, because of the vagueness of this ground, has no way of knowing what he is said to have concealed or misrepresented.
[21] Counsel to Mr. Fast do not limit their attack on the notice to the basket allegation. They allege the use of the words “including” in the second paragraph of the notice suggests that activities not set out in there could be the basis of the alleged misrepresentation or fraudulent concealment. Moreover, they say the use of the words “collaboration” and “association” in that paragraph are too vague and uncertain to allow Mr. Fast to know what he is alleged to have concealed or misrepresented.
[22] As a result, Mr. Fast argues the Minister acted beyond her jurisdiction in issuing the notice which is inconsistent with section 18 of the Act in that it does not fairly convey to Mr. Fast what he is alleged to have concealed or misrepresented.
(iii) Ground two—irrelevant consideration—the 1947 immigration process
[23] Mr. Fast argues the Minister committed a jurisdictional error because of an extraneous consideration in alleging he made a misrepresentation in 1947 to immigration officials. Such a misrepresentation, if one was made, is irrelevant, it is said, because there is no allegation by the Minister that Mr. Fast lied during the processing of his citizenship application in 1954.
[24] The foundation for this argument is based on how the 1946 Canadian Citizenship Act [R.S.C. 1952, c. 33] (the old Act) was written and under which Mr. Fast obtained his citizenship in 1954 in contrast with the current Citizenship Act which came into force in 1976 containing the deeming provision of subsection 10(2) relating to permanent residence and tying it with the citizenship acquisition process which the old Act did not have.
[25] This argument involves complex notions of accrued or accruing rights under the old Act and recourse to various provisions of the Interpretation Act [R.S.C., 1985, c. I-21] as to the effect of the repeal of an enactment on substantive rights. Counsel for Mr. Fast acknowledges, however, that this issue was considered by Mr. Justice MacKay of this Court in Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (T.D.) (QL). In Oberlander, supra, Mr. Justice MacKay referred to Mr. Justice Collier’s judgment in Canada (Secretary of State) v. Luitjens, [1989] 2 F.C. 125 (T.D.), at page 133 where he determined that substantive rights in relation to the acquisition of citizenship are subject to legislation in force at the time citizenship is acquired.
[26] Mr. Justice MacKay acknowledged that while there was no equivalent to subsection 10(2) in the old Act, as it applied in 1954 in the case before him, he held this subsection simply provides for an evidentiary presumption, a matter of procedure covered by subparagraph 44(d)(iii) of the Interpretation Act with the result a reach-back was permissible.
(iv) Ground two—irrelevant considerations— security reasons
[27] Mr. Fast further attacks the notice arguing the allegation in the notice states that, in 1947, he failed to divulge to Canadian officials responsible for selecting individuals wishing to come to Canada his activities during the Second World War. He says this allegation amounts to an extraneous jurisdictional error because in 1947, immigration officials did not have legal authority to reject an applicant on these stated grounds.
[28] The backdrop to this argument is the structure of the Immigration Act as it was in force in 1947 and the scope as well as the applicability of various orders in council made under that existing statute at the time. Also involved in the consideration of this issue is whether, absent statutory authority, the royal prerogative governing entry of persons to Canada could be relied upon.
[29] In support of their argument on this point, counsel to Mr. Fast refers to three decisions of this Court in citizenship revocation cases where the issue was discussed and decided. Those cases are Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203 Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161, a decision of Nadon J.; and Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161, a decision of Lutfy J., as he then was.
[30] In Dueck, supra, Mr. Justice Noël came to the conclusion that in July 1948, there was no authority under the Immigration Act [R.S.C. 1927, c. 93] then in force and the orders in council passed under that Act to reject prospective immigrants on the grounds they had collaborated with the enemy. He also came to the conclusion Parliament, in enacting the Immigration Act, entirely displaced the royal prerogative which might have been the basis for the rejection of potential immigrants on security grounds.
[31] Mr. Justice Noël wrote [at paragraph 304, pages 274-275]:
While at common law, no alien immigrant had a right to enter Canada, the Immigration Act in force in 1948 determined the eligibility of prospective immigrants. In the case of the respondent, it was decided by an immigration officer in July 1948 that he complied with the provisions of the Act and that he met the conditions prescribed by the applicable orders in council. As such, he became entitled to enter Canada. That he would have been barred from entry if he had truthfully disclosed his past by reference to considerations which were extraneous to the Act and the applicable orders in council cannot alter the fact that he was lawfully admitted to Canada.
[32] In Katriuk, Mr. Justice Nadon said at paragraph 111 [pages 207-208] of his decision:
In Canada (Minister of Citizenship and Immigration) v. Dueck … my colleague Mr. Justice Noël comes to the conclusion that, until the enactment of order in council P.C. 1950-2856, there was no authority under the Immigration Act, 1927, and the orders in council enacted thereunder, to refuse entry into Canada of immigrants on security grounds. I agree with the view taken by Noël, J. However, on August 14, 1951, when the respondent was landed in Canada, there was clearly a legal basis to refuse entry to immigrants who did not meet the security requirements.
[33] In Kisluk, supra, Lutfy J. (now A.C.J.) was satisfied on the basis of Orders in Council P.C. 4849 and P.C. 4851 that, in December 1948, immigration officers had the legal authority to prohibit the landing into Canada of immigrants on grounds they were either undesirables or security risks, a conclusion which he said was fully consistent with the prohibition against the entry of persons who do not fulfill, meet or comply with the conditions and requirements of any regulation found in paragraph 3(i) of the then Immigration Act [R.S.C. 1927, c. 93]. In Kisluk, supra, Mr. Justice Lutfy considered Dueck and concluded the applicant’s submissions in the case before him differed substantially from those which had been argued before Mr. Justice Noël in Dueck, supra. He also distinguished Mr. Justice McKeown’s decision in Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 (F.C.T.D.), on the basis that the issue of legal authority had not been raised in any significant way in that case.
II. Application to this case
[34] The issue in this case is whether the Minister and the Attorney General of Canada have met the burden of the Bull Laboratories test.
(a) First ground—No justiciable issue and no exercise of statutory power
[35] In my view, the Minister and the Attorney General have not, on this first ground, demonstrated that Mr. Fast’s judicial review application has no possibility of success and that the grounds of no justiciability and no exercise of statutory power are not sufficiently strong to enable this Court to dismiss that application. My reasons are twofold.
[36] First, while I am satisfied the Minister’s notice gave Mr. Fast the substance of his alleged misrepresentations, sufficient for him to decide whether he should or should not elect for a reference, I am, nevertheless, troubled by the openness of the basket allegation and the flexibility which the Minister has reserved upon herself to include other activities than those specified in the notice. It is debatable whether the allegations as framed meet the requirements established by Mr. Justice Noël in Dueck, supra, and Mr. Justice MacKay in Odynsky, supra.
[37] I, nevertheless, see no substance in Mr. Fast’s argument that he did not appreciate what was meant in the notice as to his collaboration or association with the German wartime authorities.
[38] Counsel for the Minister and the Attorney General placed great emphasis on the argument that Mr. Fast’s rights were not affected and, therefore, his judicial review application was not justiciable. Counsel relied on the Federal Court of Appeal’s decision in Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149, where leave to appeal to the Supreme Court of Canada was dismissed [[1992] 2 S.C.R. viii). They also relied upon the Supreme Court of Canada’s decision in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 for the proposition that certiorari will not lie as a remedy unless the public body has power to decide any matter affecting the rights, interests, property, privileges or liberties of any person.
[39] It is debatable, particularly, whether these two cases relied upon by counsel for the Minister and the Attorney General apply in the context of Mr. Fast’s argument which focusses on the necessity of compliance with a statutory requirement related to the adequacy of the content of the prescribed notice.
[40] I am further not satisfied the Minister and the Attorney General have made out a case the Minister, in issuing the notice, was not exercising a statutory power contemplated by section 2 of the Federal Court Act and, in this respect, the Federal Court of Appeal’s decision in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694and Krause v. Canada, [1999] 2 F.C. 476are apt.
[41] Second, on the face of the record, relying upon several decisions of this Court in revocation cases, it cannot be said no debatable issue arises on Mr. Fast’s arguments that what he may or may not have said to immigration officials in 1947 when he applied to immigrate to Canada were extraneous to the acquisition of his citizenship in 1954. Furthermore, in my view, it cannot be clearly said the authority of immigration officials to exclude him on security grounds was not fairly arguable.
[42] Standing alone, these issues would warrant further analysis by this Court on the hearing of Mr. Fast’s judicial review application on its merits. I find the words of Mr. Justice Strayer in Bull Laboratories, supra, quite fitting that a motion to strike does not cover cases where there is a debatable issue as to the adequacy of allegations.
(b) Second ground—What a reference to this Court means in the context of section 18.5
[43] The Minister and the Attorney General invoked, as a second alternative ground, the provisions of section 18.5 of the Federal Court Act which excludes from judicial review cases where an appeal as such is provided for by Parliament in another manner. Specifically, the Minister and the Attorney General argue that the reference to this Court is that other way.
[44] Section 18.5 of the Federal Court Act reads:
18.5 Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. [Emphasis mine.]
[45] The debate between the parties focussed on the meaning of the words “an appeal as such” in section 18.5 of the Federal Court Act. Counsel for the Minister and the Attorney General favoured a broad interpretation of these words relying principally on the decision of my colleague Mr. Justice McKeown in Canada Post Corp. v. Canada (Minister of Public Works) (1993), 21 Admin. L.R. (2d) 152 (F.C.T.D.).
[46] Counsel for Mr. Fast urged a more restrictive interpretation based on Union of Nova Scotia Indians v. Maritimes and Northeast Pipeline Management Ltd. (1999), 243 N.R. 205 (F.C.A.) in order to preserve the right of judicial review. They argued even where an appeal is provided for by statute, the decision in issue may be judicially reviewed on a ground that cannot be the subject of the appeal relying upon Rich Colour Prints Ltd. v. Deputy Minister of National Revenue, [1984] 2 F.C. 246 (C.A.).
[47] They construed the word “appeal” as the review of the decision of an inferior body by Superior Court for the purpose of testing the soundness of the decision and said the determination by this Court on the reference from the Minister is not a review of the Minister’s decision to issue the notice of revocation but rather a fact-finding process designed to determine whether Mr. Fast has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances in the manner alleged in the notice of revocation. Moreover, the reference does not “finally determine any legal rights”.
[48] This issue of the proper meaning of the words “an appeal as such” is to be resolved as a matter of statutory interpretation and, in this context, it is useful to recall the approach established by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, where Mr. Justice Iacobucci said at page 41, citing with approval Elmer Driedger in Construction of Statutes (2nd ed. 1983) [at page 87]:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[49] The nature of the decision which a judge of this Court is called upon to render is spelled out by Parliament in paragraph 18(1)(b) in these terms “and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances”. If this Court makes a finding, in a particular case based upon the evidence adduced and necessary legal findings that the statutory requirement has not been met, the Minister cannot make a report to the Governor in Council and the Governor in Council cannot consider whether that person’s citizenship should be revoked. In other words, a negative finding by this Court is a bar to revocation of citizenship and consequently deportation from Canada.
[50] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at page 413 [paragraph 52], characterized the decision which this Court makes under paragraph 18(1)(b) as “a very particular kind of decision” quoting to the Federal Court of Appeal’s decision in Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149, at page 152 as follows:
… there is no conflict at all between s. 18(3) and s. 27(1). First, this decision is not a “final judgment” of the court, nor is it an “interlocutory judgment”. Although the decision followed a hearing at which much evidence was adduced, it was merely a finding of fact by the court, which was to form the basis of a report by the minister and, eventually, a decision of the Governor in Council, as described by ss. 10 and 18(1). The decision did not finally determine any legal rights.
[51] In Tobiass, supra, the Supreme Court of Canada was sensitive to the interlocutory decisions which a reference judge would make during the course of a reference. At paragraph 56 [pages 414-415] of its decision, the Supreme Court of Canada said this:
Although the issue does not arise here, there is a great deal of force to the argument that s. 18(1) of the Citizenship Act encompasses not only the ultimate decision as to whether citizenship was obtained by false pretences, but also those decisions made during the course of a s. 18 reference which are related to this determination. This would encompass all the interlocutory decisions which the court is empowered to make in the context of a s. 18 reference (see, for instance, s. 46 of the Federal Court Act and Rules 5, 450-455, 461, 477, 900-920, 1714 and 1715 of the Federal Court Rules, C.R.C., c. 663). This interpretation of s. 18(1) was adopted by the Federal Court of Appeal in Luitjens, supra, where it was held that interlocutory decisions made in the context of s. 18(1) reference are decisions made “under” s. 18(1). It is not necessary for the purpose of this decision to determine whether this conclusion should be varied. That should only be done in an appeal where the issue arises from the facts.
[52] At paragraph 59 [page 415] of its decision, the Supreme Court of Canada added this:
Furthermore, it may be that allowing appeals from interlocutory decisions made in the context of a s. 18 reference would effectively defeat Parliament’s goal of finality in citizenship matters. As McLachlin J. observed in R. v. Seaboyer, [1991] 2 S.C.R. 577, there is a valid policy concern to control the “plethora of interlocutory appeals and the delays which inevitably flow from them” (p. 641).
[53] In my view, Tobiass and Luitjens, supra, define the approach to the question of whether a reference can be said to be an appeal for the purposes of section 18.5 of the Federal Court Act. As I see it, a reference is effectively a trial to determine, as a matter of fact, whether a person has obtained his/her citizenship in a manner proscribed by Parliament. During that trial, which is conducted through the avenue of an action under Part 4 of the Rules, a judge is necessarily called upon to make numerous procedural and evidentiary rulings as well as to make findings of law and this was recognized by the Supreme Court of Canada in Tobiass, supra.
[54] I adopt the principles established by Justice McKeown in Canada Post, supra. They were:
(1) The purpose and intent of Parliament in enacting section 18.5 of the Federal Court Act was two-fold: first, the rationale behind this section is to ensure the party seeks a remedy specifically prescribed by Parliament in the statute governing the proceedings rather than resorting to judicial review under section 18.1; and, the second purpose is to avoid a multiplicity of proceedings.
(2) Whether a particular process constitutes an appeal for section 18.5 purposes should be viewed by analysing the process substantively and not as a matter of form. The word “appeal” is not a term of art.
(3) An appeal for section 18.5 purposes is a review process whereby the decision made below may be examined as to its soundness. He was of the view an appeal may include a trial de novo, an appeal to the Governor in Council, a stated case appeal and traditional appeals upon the record created in the tribunal or court below (at pages 155-156).
(4) Section 18.5 is designed to limit the operation of sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act to cases where no review or appeal is provided in the governing statute.
(5) Relying on the Federal Court of Appeal’s decision in Minister of National Revenue v. Parsons, [1984] 2 F.C. 331 jurisdictional issues are not to be dealt with separately from appeal questions. In his view, the Federal Court of Appeal buttressed this proposition in Optical Recording Corp. v. Canada, [1991] 1 F.C. 309 where Mr. Justice Urie stated at page 321 of that decision:
Accordingly, it matters not whether the assessment made on June 3, 1985 is at this stage moot or not. By virtue of s. 29 of the Federal Court Act the Trial Division lacked jurisdiction to grant the relief sought in the section 18 application since the Income Tax Act provides the appropriate procedure for appealing the assessment. In those proceedings, all issues relating to the assessment, including its validity and mooteness, may be raised.
[55] In Canada Post, supra, Mr. Justice McKeown struck out a judicial review application because section 44 of the Access to Information Act [R.S.C., 1985, c. A-1] provided a trial de novo.
[56] Mr. Justice McKeown’s approach to what review process constitutes an appeal for section 18.5 purposes is confirmed in the following case law:
(a) Cangene Corp. v. Eli Lilly & Co. (1995), 63 C.P.R. (3d) 377 (F.C.T.D.) where Jerome A.C.J. struck out a judicial review application because the provisions of the Patent Act [R.S.C., 1985, c. P-4] “clearly demonstrate that Parliament has provided a comprehensive scheme for challenging the decisions of the Commissioner of Patents” (at page 379);
(b) Albion Transportation Research Corp. v. Canada, [1998] 1 F.C. 78 (T.D.), where Gibson J. barred an attack on the validity of a notice of assessment because that matter was one which Parliament intended the Tax Court to deal with;
(c) Aliments Prince Food Inc. v. Canada (Department of Agriculture and Agri-Food) (1999), 164 F.T.R. 104 (F.C.T.D.), where Dubé J. followed Justice McKeown in Canada Post, supra;
(d) Shun v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 211 (F.C.A.) where the Federal Court of Appeal sustained the judgment of Pinard J. who struck a judicial review application from a decision of a citizenship judge refusing his application for citizenship. Stone J.A. said subsection 14(5) of the Citizenship Act provides a comprehensive right of appeal and that the Court was satisfied the questions of jurisdiction of the Citizenship Judge and of the alleged improprieties in the manner in which he dealt with the application for citizenship could be perused on an appeal under subsection 14(5) and the appropriate remedies granted.
(e) Smith v. Minister of National Revenue (1992), 8 Admin. L.R. (2d) 146 (F.C.T.D.), where Mr. Justice Rothstein, then with the Trial Division, struck out a judicial review application seeking to challenge and ascertain forfeiture under the Customs Act [R.S.C., 1985 (2nd Supp.), c. 1] because the Customs Act provided a statutory scheme of appeal.
[57] Based on these authorities which establish a clear line, I am convinced the reference process mandated by paragraph 18(1)(b) of the Act coupled with Part 4 of the Rules which govern references, provides a vehicle whereby the soundness of the notice of revocation issued by the Minister under section 18 of the Act can be tested and reviewed on the grounds which Mr. Fast identifies in his judicial review application. Those grounds, it will be recalled, were alleged to be jurisdictional ones related to the adequacy of the notice, irrelevant considerations in the notice which alleges he made a misrepresentation in 1947 to immigration officials and the attack in the notice which states that, in 1947, he failed to divulge to Canadian officials responsible for selecting individuals wishing to come to Canada his activities during the Second World War.
[58] The second and third grounds advanced by counsel for Mr. Fast have already been the subject of several decisions of this Court in revocation cases because they raised legal issues which necessarily had to be decided before it arrived at the decision which Parliament called upon this Court to make. Those arguments may be put by Mr. Fast in the reference he has requested with the result that his attack on the notice will be reviewed by this Court in that context.
[59] The first ground relating to the adequacy of the notice has also been the subject of comment in revocation cases, proof that the adequacy of the notice is reviewed in the reference. Mr. Fast wants to strike out the notice on jurisdictional grounds because of the basket allegation and the vagueness of the words “collaboration” and “association”. Assuming the Minister made a jurisdictional error in issuing the notice with such alleged defects, clearly, Mr. Fast could challenge the notice under rule 208 of the Rules which now govern references.
[60] I conclude Mr. Fast’s judicial review application could not possibly succeed and must be struck. Clearly, Parliament intended that all matters, including those advanced by Mr. Fast in his judicial review integrally connected to the reference process, be decided within the reference framework.
DISPOSITION
[61] For all of these reasons, this judicial review application is struck on the grounds that it is barred by section 18.5 of the Federal Court Act. No costs are awarded to the successful respondents.