T-3696-77
In re Heinrich Kleifges and in re Citizenship Act
Trial Division, Walsh J.—Toronto, January 20;
Ottawa, January 31, 1978.
Citizenship — Residency period — Appellant employed by
Province abroad after attaining landed immigrant status —
Period necessary to meet residency requirements — Former
Act recognized appellant as fulfilling residency requirements
— No similar provisions in new Act — Whether or not
appellant has accrued or accruing right to have period of
residency abroad counted toward residency period — Canadi-
an Citizenship Act, R.S.C. 1970, c. C-19, s. 10(6)(b) — Citi
zenship Act, S.C. 1974-75-76, c. 108, ss. 5(1)(b)(ii), 5(4), 35(1)
— Interpretation Act, R.S.C. 1970, c. I-23, s. 35.
Appellant received landed immigrant status in May 1972
and, since that date, was employed by the Province of Ontario
in West Germany. The Act then in force recognized this service
abroad as being equivalent to Canadian residency. The new
Act, proclaimed in February 1977, contains no similar provi
sion. The Citizenship Judge did not take appellant's period of
residence abroad into account and denied appellant's applica
tion for citizenship. The issue is whether or not appellant had
an accrued or accruing right to have his period of residence
abroad counted toward the residency requirements for
citizenship.
Held, the appeal is allowed. The appellant has an accrued or
at least an accruing right to have his period of residence in
Germany counted toward the residence requirements for citi
zenship. The new Act merely eliminated the provision that
service abroad, other than as a locally engaged person, in the
employ of the public service of Canada or a province would
count as a residence in Canada; it did not provide that any such
period of residence which had accrued under the former Act
would no longer count as such. Under the former Act his
employment by Ontario in Germany counted toward his resi
dence requirements right up to the proclamation of the new
Act, which would give him more than three years of residence
during the preceding four-year period.
Bell Canada v. Palmer [1974] 1 F.C. 186, considered.
Director of Public Works v. Ho Po Sang [1961] A.C. 901,
distinguished and Free Lanka Insurance Co. Ltd. v. A. E.
Ranasinghe [1964] A.C. 541, distinguished.
APPEAL.
COUNSEL:
R. Pyne for appellant.
F. W. Chenoweth, amicus curiae.
SOLICITORS:
Stikeman, Elliott, Robarts & Bowman,
Toronto, for appellant.
Frederick W. Chenoweth, Toronto, amicus
curiae.
The following are the reasons for judgment
rendered in English by
WALSH J.: The facts in the present case are not
in dispute. The appellant is a citizen of the Federal
Republic of Germany residing in the City of
Frankfurt and has since 1970 been employed there
by the Government of Ontario, Ministry of Indus
try and Tourism, Europe Branch, as an Industrial
Development Officer, Senior Commercial Repre
sentative. He obtained landed immigrant status on
May 7, 1972, and immediately accepted employ
ment by the Government of Ontario, allegedly
being assured at that time that the period of time
during which he was employed outside of Canada
in the public service of the Province of Ontario
otherwise than as a locally employed person would
be treated as equivalent to a period of residence in
Canada for the purposes of subsection (1) of sec
tion 10 of the Canadian Citizenship Act in effect
at that time'. Section 10(1) of that Act required
inter alia a period of residence in Canada for at
least 12 of the 18 months preceding the date of the
application and residence in Canada for five of the
eight years preceding the date of the application.
Section 10(6)(b) read as follows:
no....
(6) Any period during which an applicant for a certificate of
citizenship
(b) was employed outside of Canada in the public service of
Canada or of a province, otherwise than as a locally engaged
person,...
shall be treated as equivalent to a period of residence in Canada
for the purposes of subsections (1),(2) and (4).
He could not make an application for Canadian
citizenship until five years from the date of obtain
ing landed immigrant status, that is some time
following May 7, 1972, but had the law not been
altered in the meanwhile it is clear that there was
no obstacle to his receiving Canadian citizenship
upon such application.
1 R.S.C. 1970, c. C-19.
This Act was repealed however and replaced by
the present Citizenship Act, S.C. 1974-75-76, c.
108, assented to July 16, 1976, and proclaimed on
February 15, 1977, which Act contained no provi
sion similar to section 10(6) supra by virtue of
which service out of Canada in the public service
of Canada or a province thereof otherwise than as
a locally engaged person can be treated as equiva
lent to a period of residence in Canada for the
purpose of fulfilling the residence requirements for
citizenship. Section 5(1) (b) of the present Act
under which of necessity his application had to be
made requires inter (ilia that the applicant
5. --
(b) bas 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:
(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;
so that unless the period of residence abroad while
in the employ of the Province of Ontario can be
taken into consideration the appellant clearly
cannot be granted Canadian citizenship. Section
35(1) of the present Act reads as follows:
35. (1) Proceedings commenced under the former Act that
are not completed on the coming into force of this Act may be
continued as proceedings under the former Act or under this
Act and any regulations made thereunder, as the Minister may,
in his discretion, determine, but any proceedings continued
under the former Act and regulations made thereunder may not
be so continued for more than one year from the coming into
force of this Act.
but is not applicable in the present case since
appellant did not commence and in fact could not
have commenced his proceedings under the former
Act. 2
2 Appellant's counsel argued that possibly the obtaining of
landed immigrant status could be considered as a proceeding
leading to citizenship, but I do not consider this the type of
proceeding contemplated by section 35, which must refer to an
application for citizenship.
His application was made in due course on
. August 31, 1977, and by letter dated September 2,
1977, from the Citizenship Court he was notified
that his application could not be approved, follow
ing the hearing on the 31st of August, 1977,
because of his failure to satisfy the residence
requirements of section 5(1)(b). The learned Citi
zenship Judge also found that he could not recom
mend to the Minister the application of section
5(4) of the Act which provides for the Governor in
Council directing the Minister to grant citizenship
to an applicant "In order to alleviate cases of
special and unusual hardship or to reward services
of an exceptional value to Canada," as the fact
that he was not a Canadian citizen at the time did
not impose any unusual or special hardship on him
nor were his services sufficiently exceptional
nationally to justify a waiver of the residence
requirements.
It is from that decision that an appeal is now
made based on the provisions of section 35 of the
Interpretation Act 3 which reads in part as follows:
35. Where an enactment is repealed in whole or in part, the
repeal does not
(b) affect the previous operation of the enactment so
repealed or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enactment
so repealed;
I had occasion to consider this matter very
recently on a somewhat similar application in the
matter of Habib Khoury 4 which was however sub
mitted on an entirely different basis, the possible
application of the Interpretation Act not being
raised. In that case the applicant had failed to
reside in Canada three of the four years preceding
the date of his application under the new Act as he
had been working in Africa on behalf of CIDA for
periods totalling 19 months during the said four
years. The argument was based on the fact that
since he received his salary in Canada and income
tax and other deductions were made therefrom in
Canada that the periods during which he was
resident abroad should nevertheless be considered
7 R.S.C. 1970, c. I-23.
4 Record T-3044-77, judgment dated January 17, 1978.
as residence in Canada for the purposes of section
5(1)(b)(ii) of the Act. I rejected this argument
which would make "residence" equivalent to
"domicile" referring to the case of Blaha y. Minis
ter of Citizenship & Immigration 5 followed in In
re Goldston 6 , reference also being made to the
case of In re Laprade [1974] 1 F.C. 196. In
rendering judgment however I stated in reference
to the possible application of section 10(6)(b) of
the Act:
Quite aside from the fact that it would have to be determined
whether appellant's employment by CIDA could be considered
as employment "in the public service of Canada" which is
doubtful, there is no similar provision in the present Act and
therefore apparently periods of service outside the country do
not count in the calculation of residence requirements.
Considerable jurisprudence was referred to with
respect to the application of the Interpretation Act
to the facts of this case. Possibly the most signifi
cant judgment is the Privy Council case of Direc
tor of Public Works v. Ho Po Sang' in which Lord
Morris of Borth-y-Gest stated at page 922 in
dealing with section 10(c) of the Interpretation
Ordinance of Hong Kong which corresponds with
section 38 of the British Interpretation Act, 1889,
52 & 53 Vict., c. 63:
It may be, therefore, that under some repealed enactment a
right has been given but that in respect of it some investigation
or legal proceeding is necessary. The right is then unaffected
and preserved. It will be preserved even if a process of quantifi-
cation is necessary. But there is a manifest distinction between
an investigation in respect of a right and an investigation which
is to decide whether some right should or should not be given.
Upon a repeal the former is preserved by the Interpretation
Act. The latter is not. Their Lordships agree with the observa
tion of Blair-Kerr J. that: "It is one thing to invoke a law for
the adjudication of rights which have already accrued prior to
the repeal of that law; it is quite another matter to say that,
irrespective of whether any rights exist at the date of the repeal,
if any procedural step is taken prior to the repeal, then, even
after the repeal the applicant is entitled to have that procedure
continued in order to determine whether he shall be given a
right which he did not have when the procedure was set in
motion."
This judgment was referred to with approval in the
case of Free Lanka Insurance Co. Ltd. v. A. E.
5 [1971] F.C. 521.
6 [1972] F.C. 559.
7
[1961] A.C. 901.
Ranasinghe 8 . In the case of Bell Canada v.
Palmer 9 Thurlow J., as he then was, in rendering
the judgment of the Federal Court of Appeal had
occasion at page 192 to distinguish the Ho Po
Sang case on the facts of the case before him,
stating:
Here in my opinion the situation is different. At the material
time the complainants as female employees of the appellant in
my view had an accrued right to equal pay as provided by the
statute which is what they sought to enforce and by making
their complaint in writing to the Minister they had taken the
only step in the procedure required to be taken by them to
entitle them to have the procedure of section 6 carried to its
conclusion.
In the present case there was unfortunately no step
taken under the former Act, but this was only
because no step could be taken until after May 7,
1977, by which time the new Act had already been
proclaimed. Appellant then acted promptly, filing
his application for citizenship on August 31, 1977.
There is a very significant distinction which may
be made with respect to the British cases referred
to however in that the enactment in those cases,
section 38 of the United Kingdom Interpretation
Act, 1889, read in part as follows:
38....
(2.) Where this Act or any Act passed after the commence
ment of this Act repeals any other enactment, then, unless the
contrary intention appears, the repeal shall not—
(c.) affect any right, privilege, obligation, or liability
acquired, accrued, or incurred under any enactment so
repealed; or
whereas section 35(c) of the Canadian Interpreta
tion Act supra, adds the word "accruing" follow
ing the word "accrued" which is a very significant
difference, since appellant's right to have his
period of employment in Germany in service for
the Province of Ontario count toward the period of
residence required under section 10 of the former
Canadian Citizenship Act was still accruing at the
time the Act was repealed.
While, as was previously indicated, section
35(1) of the present Act is inapplicable in the
present case since proceedings were not com-
8 [1964] A.C. 541 at page 552.
9 [1974] 1 F.C. 186.
menced under the former Act, I do not believe that
it can have the effect of preventing the application
of section 35 of the Interpretation Act to the facts
of the present case. If any section of the Interpre
tation Act could be considered as having been
made ineffective by section 35(1) of the new Citi
zenship Act limiting the continuation of proceed
ings brought under the former Act to one year
after coming into force of the new Act, it would be
section 36 of the Interpretation Act which would
be so affected, as it provides in a general way that
every proceeding under the former enactment
could be continued in so far as it may be done
consistently and in conformity with the new enact
ment and that the procedure established under the
new enactment shall be followed as far as it can be
adapted to inter alia the enforcement of rights
existing or accruing under the former enactment.
We are not dealing here with a proceeding com
menced under the old Act, but with the question
whether appellant has by the new enactment been
deprived of "any right, privilege, obligation or
liability acquired, accrued, accruing or incurred"
under the former Canadian Citizenship Act.
While it has been held that citizenship itself is
not a right but a privilege, the issue here is not
whether appellant should be granted citizenship,
but whether he did not have an accrued, or at least
an accruing right to have his period of residence in
Germany counted toward the residence require
ments for citizenship. I believe that he had such a
right and that to deprive him of it by what is in
effect retrospective legislation would be manifestly
unjust. The new Act merely eliminated the provi
sion that service abroad, other than as a locally
engaged person, in the employ of the public service
of Canada or of a province thereof would count as
residence in Canada; it certainly did not specifical
ly provide that any such period of residence which
had accrued under the former Act would no longer
count as such.
If we take the four-year period preceding appel
lant's application on August 31, 1977, that brings
us back to August 31, 1973, and under the former
Act his employment by the Province of Ontario in
Germany counted toward the residence require
ments right up to the proclamation of the new Act
on February 15, 1977, which would give him more
than three years of residence during the preceding
four-year period. I therefore believe that his appeal
should be allowed.
In view of this conclusion it is unnecessary to go
into the second question namely whether a recom
mendation should have been made by the Citizen
ship Judge to the Minister to apply section 5(4) of
the Act, but as a similar question might well come
up in other cases I consider it desirable to com
ment on it. Section 5(4) reads as follows:
5....
(4) In order to alleviate cases of special and unusual hard
ship or to reward services of an exceptional value to Canada,
and notwithstanding any other provision of this Act, the Gover
nor in Council may, in his discretion, direct the Minister to
grant citizenship to any person and, where such a direction is
made, the Minister shall forthwith grant citizenship to the
person named in the direction.
and it is to be noted that the word "or" is used so
that it is not necessary for a recommendation that
the applicant should be undergoing special and
unusual hardship as a result of not acquiring citi
zenship, but a recommendation might be made on
the basis of rewarding services of an exceptional
value to Canada. I am of the view that the learned
Citizenship Judge took a somewhat restricted view
of what constitutes services of exceptional value. I
do not believe that the Act requires the services to
be of a nature that would justify a special award or
decoration. In applicant's file is a letter from the
former manager of the Frankfurt office of the
Ministry of Industry and Tourism of Ontario who
states:
Initially as the commercial representative and subsequently
appointed as senior commercial representative he has served the
interest of the Ontario business community well. His
enthusiasm for Canada speaks for itself, a feeling which is
equally shared by his family.
There is also a letter from Barbel Manufacturing
Co. Ltd. Bolton, Ontario, which states:
Our firm engaged in export activity for the past few years and
Mr. Kleifges' assistance was invaluable in getting established
with the right business contacts in Europe.
I have found him extremely co-operative, straight-forward,
honest, most knowledgeable and capable. In my opinion our
country would greatly benefit by acquiring him as a citizen.
This letter is signed by G. P. Hirsch, the President
of the company. I am of the view that for an
applicant who would very obviously make an
excellent citizen the provisions of the Act should
be given a liberal interpretation so as to make the
granting of citizenship to him possible, rather than
a narrow and restricted interpretation, and that
therefore, in the present case, even if I had not
found that the appeal should be allowed and citi
zenship granted to appellant, I would in any event
have recommended the exercise of discretion under
section 5(4) of the Act.
ORDER
The appeal is allowed with costs.
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.