T-872-78
In re Citizenship Act and in re Antonios E.
Papadogiorgakis (Appellant)
Trial Division, Thurlow A.C.J.—Halifax, June 26
and 27; Ottawa, June 30, 1978.
Citizenship — Residency — Mode of life centralized in
Nova Scotia, even while at university in U.S. — Physically
present in Canada for comparatively short period — Whether
or not appellant can be considered resident during period spent
at university in U.S. — Citizenship Act, S.C. 1974-75-76, c.
108, s. 5(1)(b).
Appellant's application for Canadian citizenship was refused
on the ground that he could not meet the residence requirement
of paragraph 5(1)(b) of the Citizenship Act. Although he
centralized his mode of living at the home of Canadian friends
in Nova Scotia and frequently returned there from his universi
ty in the United States, appellant was physically in Canada
only for a comparatively short period. This appeal turns on
whether or not appellant was resident in Canada within the
meaning of the statute during periods spent at university in the
United States.
Held, the appeal is allowed. In the Citizenship Act, there is
no definition of or reference to "place of domicile" and the
French language version does not use the expression chaque
année entière passée au Canada. A substantial part of the
reasoning on which the former interpretation was based, there
fore, is no longer applicable and the words "resident" and
"residence" are to be given their ordinary meaning in the
context in which they are found. Appellant was resident
throughout the material time at the home of his friends in Nova
Scotia where he centralized his mode of living. His presence
there could not be called a "stay" or "visit" in any ordinary
sense. Even when he temporarily left to study in the United
States, his mode of living did not cease to be centralized there
but continued in all respects as before.
Blaha v. Minister of Citizenship & Immigration [1971]
F.C. 521, distinguished. Thomson v. Minister of National
Revenue [1946] S.C.R. 209, followed.
APPEAL.
COUNSEL:
Antonios E. Papadogiorgakis on his own
behalf.
John D. Murphy, amicus curiae.
SOLICITORS:
Stewart, MacKeen & Covert, Halifax, for
amicus curiae.
The following are the reasons for judgment
rendered in English by
THURLOW A.C.J.: The appellant's application
for Canadian citizenship was refused on the
ground that the appellant could not meet the
residence requirement of paragraph 5(1)(b) of the
Citizenship Act'. In all other respects the Citizen
ship Judge found, as I do as well on the material
before me, that the appellant met the require
ments. As will appear, the appeal turns on whether
the appellant was resident in Canada within the
meaning of the statute during periods which he
spent in attending the University of Massachusetts
in Amherst, Massachusetts.
At the time of the appellant's application,
December 6, 1977, paragraph 5(1)(b) provided:
5. (1) The Minister shall grant citizenship to any person
who, not being a citizen, makes application therefor and
(b) has been lawfully admitted to Canada for permanent
residence, and has, within the four years immediately preced
ing the date of his application, accumulated at least three
years of residence in Canada calculated in the following
manner:
(i) for every day during which he was resident in Canada
before his lawful admission to Canada for permanent
residence he shall be deemed to have accumulated one-half
of a day of residence, and
(ii) for every day during which he was resident in Canada
after his lawful admission to Canada for permanent resi
dence he shall be deemed to have accumulated one day of
residence;
The appellant was born in Crete and is now 25
years of age. He is not married and has no family
or kin living in Canada. He entered Canada on a
student visa on September 5, 1970, and was admit
ted for permanent residence on May 13, 1974.
During that period he attended Acadia University
at Wolfville, Nova Scotia. In the first year and a
half, he lived in residence at the university, later in
a rooming house in Wolfville, and in his third year
he shared an apartment at Wolfville along with
three other persons. In his fourth year, he lived at
Grand Pré, Nova Scotia. During the summer
recesses, he worked on a ferry running from Yar-
mouth, Nova Scotia, to Portland, Maine. In the
S.C. 1974-75-76, c. 108.
same period, he established a relationship with a
friend and the friend's parents, and in May 1974
moved to their home at Tusket, Nova Scotia. From
that time until January of 1978, he had a room in
their home. He lived there when in Canada and he
returned there whenever he had been out of
Canada. He paid no rent for the room but con
tributed to the expenses of the household. He was
regarded as one of the family and considered the
home to be his Canadian home. Most of his per
sonal property remained there when he was away
but at such times the family also made use of the
room. Since 1973, he has been a co-owner of a
parcel of land nearby.
The material period for the purposes of his
application is from December 6, 1973, to Decem-
ber 6, 1977. In the first part of that period, that is
to say, from December 6, 1973, to May 13, 1974,
a matter of some 158 days, he was resident in
Canada but of this he can count only 79 days
towards the three years necessary to meet the
requirement, as this was residence before his
admission to Canada for permanent residence.
Between May 13, 1974, and December 6, 1977,
he was absent from Canada on a number of occa
sions. First he attended the university in Massa-
chusetts from January 28, 1976, to mid-June of
that year, a period of some four and a half months
constituting the university semester. He then
returned to Tusket, Nova Scotia, but from July 28
to August 28 was absent on a vacation.
From early in September to mid-December and
from late January 1977 to August 1977, he again
attended the University of Massachusetts but
returned to Tusket for the Christmas break. He
also returned there on two weekends of each
month while attending the university. His only
purpose in going to Massachusetts was to pursue
his studies and, in fact, he emerged at the end of
the period, consisting of some thirteen months in
all, with degrees as Master of Business Adminis
tration and Master of Hotel, Restaurant and
Travel Administration. He was not employed there
at any time.
While in Massachusetts, he lived in an old
school bus which he had converted to living
accommodation and throughout the time it was
operated on its Nova Scotia registration. His
schooling was financed by student loans and a
foreign scholarship awarded to him as a Canadian
student.
Between October 4, 1977, and December 3,
1977, he was absent from Canada on a further
vacation.
He was thus physically present in Canada only
for comparatively short, though frequent, periods
in 1976 and 1977. The question arises whether he
continued to be resident in Canada within the
meaning of the statute while he was absent for the
purpose of attending the university in Massachu-
setts. If so, he can meet the requirement for, if
these periods can be counted, he will have estab
lished residence for the whole of the period of
some three and a half years from May 13, 1974, to
December 6, 1977, subject only to the vacation
periods which, in any event, cannot affect the
result and, as I see it, need not be considered.
I should add that there is no evidence that the
appellant has been absent from Canada since
December 6, 1977, and that he gave evidence of
plans to open a business of his own in Nova Scotia.
I turn to the question of the interpretation of the
words "residence" and "resident" in paragraph
5(1)(b) of the Act.
In Blaha v. Minister of Citizenship &
Immigration 2 , Pratte J. adopted an interpretation
of the corresponding terms in the former statute,
the Canadian Citizenship Act 3 , which was some
what narrower than the ordinary meaning of the
terms. He said at pages 524-525:
The Canadian Citizenship Act does not define the terms
"reside" or "residence". It may be noted, however, that it
defines the expression "place of domicile" in the following
manner:
2. "place of domicile" means the place in which a person
has his home or in which he resides or to which he returns as
his place of permanent abode and does not mean a place in
which he stays for a mere special or temporary purpose;
2 [1971] F.C. 521.
3 R.S.C. 1970, c. C-19.
As the Act does not define the words "reside" and "residence",
we must arrive at their meaning by reference to the ordinary
connotation, with the single obvious qualification that they
cannot be given a meaning which is identical to that given by
Parliament to the expression "place of domicile".
These two words, "reside" and "residence", do not have a
definite meaning in law; their meaning varies with the context
in which they are used. Since I am to decide the meaning of
these terms in the Canadian Citizenship Act, I am unable,
therefore, to rely on decisions in which the courts have had to
specify the meaning of those same words in other statutes, such
as a tax statute (Thomson v. M.N.R. [1946] S.C.R. 209), an
electoral statute (Re An Election in St. John's South, New-
foundland (1960) 22 D.L.R. (2d) 288)), or a procedural statute
(Et hier v. Nault [1952] Que. Q.B. 216).
In my opinion a person is resident in Canada within the
meaning of the Canadian Citizenship Act only if he is physical
ly present (at least usually) on Canadian territory. I feel that
this interpretation is in keeping with the spirit of the Act, which
seems to require of the foreigner wishing to acquire Canadian
citizenship, not only that he possess certain civic and moral
qualifications, and intends to reside in Canada on a permanent
basis, but also that he has actually lived in Canada for an
appreciable time. Parliament wishes by this means to ensure
that Canadian citizenship is granted only to persons who have
shown they are capable of becoming a part of our society.
Further, this interpretation is confirmed by the comparison
which can be made between the English and French versions of
subparagraph (1)(c)(i) of section 10. The expression "each full
year of residence in Canada", which appears in the English text
of this subparagraph, has been translated in the French text by
the words "chaque année entière passée au Canada".
If this limited meaning is to be given to the word "reside", as
I think it has to be, the Court was clearly right in holding that
appellant did not reside in Canada for five of the eight years or
for twelve of the eighteen mdnths immediately preceding the
date of his application:
I may say at once that, if the Canadian Citi
zenship Act were still in effect and applicable to
the present case, I would adopt and follow this
reasoning, as other judges of the Court have done,
and the result might be to deny the appeal. How
ever, in the new Act, the Citizenship Act, which
applies to this case, there is no definition of "place
of domicile", there is no reference to "place of
domicile" and the French language version does
not use the expression chaque année entière passée
au Canada. A substantial part of the reasoning on
which the interpretation was based is, thus, as it
seems to me, no longer applicable and one is left to
interpret the words "residence" and "resident" by
giving to them their ordinary meaning in the con
text in which they are found.
In Thomson v. M.N.R. 4 , the Supreme Court
considered the ordinary meaning of the expression
"ordinarily resident" in the context of a statute
imposing taxation on persons "ordinarily resident"
in Canada. Rand J. said at pages 224 and 225:
The gradation of degrees of time, object, intention, continui
ty and other relevant circumstances, shows, I think, that in
common parlance "residing" is not a term of invariable ele
ments, all of which must be satisfied in each instance. It is quite
impossible to give it a precise and inclusive definition. It is
highly flexible, and its many shades of meaning vary not only in
the contexts of different matters, but also in different aspects of
the same matter. In one case it is satisfied by certain elements,
in another by others, some common, some new.
The expression "ordinarily resident" carries a restricted sig
nification, and although the first impression seems to be that of
preponderance in time, the decisions on the English Act reject
that view. It is held to mean residence in the course of the
customary mode of life of the percon [sic] concerned, and it is
contrasted with special or occasional or casual residence. The
general mode of life is, therefore, relevant to a question of its
application.
For the purposes of income tax legislation, it must be
assumed that every person has at all times a residence.
But in the different situations of so-called "permanent resi
dence", "temporary residence", "ordinary residence", "princi-
pal residence" and the like, the adjectives do not affect the fact
that there is in all cases residence; and that quality is chiefly a
matter of the degree to which a person in mind and fact settles
into or maintains or centralizes his ordinary mode of living with
its accessories in social relations, interests and conve
niences at or in the place in question. It may be limited in time
from the outset, or it may be indefinite, or so far as it is thought
of, unlimited. On the lower level, the expressions involving
residence should be distinguished, as I think they are in ordi
nary speech, from the field of "stay" or "visit".
While the statute there under consideration was
an income tax law, this discussion appears to me to
be general enough to be of some assistance in
interpreting the meaning of the words here in
question. At the same time, what Pratte J. refers
to as the spirit of the citizenship legislation must, I
think, be borne in mind. It seems to me that the
words "residence" and "resident" in paragraph
5(1)(b) of the new Citizenship Act are not as
strictly limited to actual presence in Canada
throughout the period as they were in the former
4 [1946] S.C.R. 209.
statute but can include, as well, situations in which
the person concerned has a place in Canada which
is used by him during the period as a place of
abode to a sufficient extent to demonstrate the
reality of his residing there during the material
period even though he is away from it part of the
time. This may not differ much from what is
embraced by the exception referred to by the
words "(at least usually)" in the reasons of Pratte
J. but in a close case it may be enough to make the
difference between success and failure for an
applicant.
A person with an established home of his own in
which he lives does not cease to be resident there
when he leaves it for a temporary purpose whether
on business or vacation or even to pursue a course
of study. The fact of his family remaining there
while he is away may lend support for the conclu
sion that he has not ceased to reside there. The
conclusion may be reached, as well, even though
the absence may be more or less lengthy. It is also
enhanced if he returns there frequently when the
opportunity to do so arises. It is, as Rand J.
appears to me to be saying in the passage I have
read, "chiefly a matter of the degree to which a
person in mind and fact settles into or maintains or
centralizes his ordinary mode of living with its
accessories in social relations, interests and con
veniences at or in the place in question".
Applying this somewhat broader interpretation
to the facts of the present case, I am of the opinion
that the appellant was, throughout the material
time, that is to say, from May 1974 to December
1976 resident at the home of his friends at Tusket,
Nova Scotia. He did not own the property but it
was there that he centralized his mode of living in
May of 1974. It was there that he lived throughout
the remainder of 1974 and the year 1975. In no
ordinary sense could his presence there in that
period be called a "stay" or a "visit". And when,
in 1976, he left to go to university, he did so only
for the temporary purpose of pursuing his studies.
He did so without closing out or breaking the
continuity of his maintaining or centralizing his
ordinary mode of living there. He took with him
what he needed for the purpose of his stay in
Massachusetts, but left the remainder of his
belongings at the home where he had been living.
And he returned there at frequent intervals for
weekends and for the Christmas and summer
breaks. He returned there as well when his courses
were concluded. As it appears to me his mode of
living was centralized there and had been central
ized there for more than a year and a half before
he began his courses at the university and it did
not cease to be centralized there while he was at
the university. In my view, it continued in all
respects as before, subject only to the necessity of
his absence therefrom for the temporary purpose
of pursuing his studies.
My conclusion is, therefore, that the appellant
meets the residence requirement of paragraph
5(1)(b) of the Act and that his appeal succeeds.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.