League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al., (2010) 409 N.R. 298 (FCA)

• Judge: Sharlow, Trudel and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 04, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 409 N.R. 298 (FCA);2010 FCA 307

B'nai Brith Can. v. Can. (A.G.) (2010), 409 N.R. 298 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. NO.040

League for Human Rights of B'nai Brith Canada (appellant) v. Wasyl Odynsky and the Attorney General of Canada (respondents)

(A-365-09)

League for Human Rights of B'nai Brith Canada (appellant) v. Vladimir Katriuk and the Attorney General of Canada (respondents)

(A-366-09; 2010 FCA 307)

Indexed As: League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al.

Federal Court of Appeal

Sharlow, Trudel and Stratas, JJ.A.

November 12, 2010.

Summary:

The Minister of Citizenship and Immigration sought a declaration that Odynsky was admitted to Canada for permanent residence and obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

The Federal Court of Canada, Trial Division, in a decision reported at 196 F.T.R. 1, granted the declaration, finding on a balance of probabilities that the defendant was admitted to Canada for permanent residence in 1949, and obtained citizenship in 1955 by false representation or by knowingly concealing material circumstances.

Katriuk, a Ukrainian, emigrated from France to Canada and obtained citizenship in 1951. In 1996, the Minister of Citizenship and Immigration notified Katriuk that his citizenship would be revoked on the grounds that it was obtained by false representation or fraud or by knowingly concealing material circumstances, namely, his collaboration with and service to German authorities in Ukraine and Belorussia during the Second World War and his true identity. The matter was referred to the court.

The Federal Court of Canada, Trial Division, in a decision reported at 156 F.T.R. 161, held that Katriuk obtained citizenship by false representation or fraud or by knowingly concealing material circumstances.

The Minister of Citizenship and Immigration recommended to the Governor in Council (GIC) that Odynsky and Katriuk should both cease to be Canadian citizens as of the date of their respective Orders-in-Council. The GIC issued Orders-in-Council not to revoke Odynsky's citizenship. The League for Human Rights of B'nai Brith Canada (B'nai Brith) filed a Notice of Application challenging the GIC's decisions not to revoke Odynsky's and Katriuk's citizenship. Odynsky moved for an order striking out the application for judicial review on the ground that B'nai Brith lacked standing.

A Prothonotary of the Federal Court, in a decision reported at 323 F.T.R. 174, granted the motion and struck the application for judicial review. B'nai Brith had brought a similar application challenging the non-revocation of Katriuk's citizenship. The decision on this motion also applied to that proceeding. B'nai Brith appealed.

The Federal Court, in a decision reported at 334 F.T.R. 63, allowed the appeal. The court concluded that the issue of public interest standing should not be decided on a preliminary or interlocutory basis. Instead, the issue should be left for the judge who heard the application for judicial review. The judicial review applications proceeded.

The Federal Court, in a decision reported at 349 F.T.R. 35, held that B'nai Brith had public interest standing to bring the application but dismissed the judicial review application respecting Odynsky. The decision on the application also applied to the judicial review application respecting Katriuk. B'nai Brith appealed both decisions.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The League for Human Rights of B'nai Brith Canada (B'nai Brith) filed a Notice of Application challenging the decisions of the Governor in Council (GIC) not to revoke Odynsky and Katriuk's citizenship on the grounds that the GIC erred in law and that the decision violated the Charter - One issue was whether B'nai Brith had direct standing to bring the judicial review application - The applications judge held that B'nai Brith did not have direct interest standing - The Federal Court of Appeal agreed - It was not "directly affected" - There was no evidence that GIC's decisions affected its legal rights, imposed legal obligations upon it, or prejudicially affected it in some way - Rather, their interest existed in the sense of seeking to right a perceived wrong arising from, or to uphold a principle in respect of, the non-revocation of citizenship - See paragraphs 57 and 58.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The League for Human Rights of B'nai Brith Canada (B'nai Brith) filed a Notice of Application challenging the decisions of the Governor in Council (GIC) not to revoke Odynsky and Katriuk's citizenship on the grounds that the GIC erred in law and that the decision violated the Charter - One issue was whether B'nai Brith had standing to bring the judicial review application - The applications judge held that B'nai Brith had public interest standing - Its proposed argument about the scope of the GIC's discretion raised a serious question - It had a genuine interest in the outcome of the litigation - Further, there was not another reasonable and effective way to bring the issue of the scope of GIC's discretion before the court - In a case like this one where citizenship was not revoked, the GIC's decision would never be judicially reviewed except where a third party sought to do so - The Federal Court of Appeal held that there was no ground to intervene on the standing issue - The granting of public interest standing in this case was consistent with the policy concern that the decisions of government not be immune from challenge - See paragraphs 59 to 62.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Odynsky and Katriuk obtained citizenship by false representation or knowingly concealing material circumstances - The Minister of Citizenship and Immigration recommended to the Governor in Council (GIC) that they should cease to be Canadian citizens - The GIC issued Orders-in-Council under s. 10 of the Citizenship Act declining to revoke their citizenship - The League for Human Rights of B'nai Brith Canada (B'nai Brith) sought judicial review - It argued that Parliament's expression of the single consideration of material misrepresentation by the GIC in s. 10 necessarily excluded all other considerations from the exercise of its s. 10 discretion - The Federal Court of Appeal agreed with the applications judge that the GIC's authority under s. 10(1) was more than a mere formality and that it enjoyed a broad discretion to review the recommendation of the Minister that citizenship be revoked - The GIC was not forced to accept the Minister's recommendation - Parliament intended the GIC to review the entirety of the situation, as reflected in the Minister's report, and make a final substantive decision - Given the consequences of revoking citizenship, it made sense that Parliament would enact a scheme that provided for judicial fact-finding, a Ministerial recommendation, and then a final level of full review by a broad body representing all constituencies and perspectives within government - See paragraphs 63 to 82.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Odynsky obtained citizenship by false representation or knowingly concealing material circumstances - During the Second World War, he was forced to serve the Nazi occupiers in Western Ukraine as a guard - The Minister of Citizenship and Immigration recommended to the Governor in Council (GIC) that Odynsky should cease to be a Canadian citizen (Odynsky Reference) - The GIC issued an Order-in-Council under s. 10 of the Citizenship Act declining to revoke Odynsky's citizenship - The League for Human Rights of B'nai Brith Canada (B'nai Brith) sought judicial review - It argued that the GIC decision was indefensible and not within the range of reasonable and acceptable outcomes - The application judge rejected the argument - The GIC had before it a considerable body of mitigating evidence supporting leniency - Odynsky had a favourable record since arriving in Canada in 1949 - It was reasonably open to the GIC on the record to have rejected the Minister's recommendation for revocation of citizenship - The Federal Court of Appeal dismissed B'nai Brith's appeal - GIC's decision not to revoke Odynsky's citizenship was rationally defensible - It was open to it to find that the facts as found in the Odynsky Reference did not implicate any of the three main elements of Canada's war crimes policy - See paragraphs 83 to 91.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Katriuk obtained citizenship by false representation or knowingly concealing material circumstances (namely, his collaboration with and service to German authorities in Ukraine and Belorussia during the Second World War and his true identity) - The Minister of Citizenship and Immigration recommended to the Governor in Council (GIC) that Katriuk should cease to be a Canadian citizen (Katriuk Reference) - The GIC issued an Order-in-Council under s. 10 of the Citizenship Act declining to revoke Katriuk's citizenship - The League for Human Rights of B'nai Brith Canada's (B'nai Brith) judicial review application was dismissed - The Federal Court of Appeal dismissed B'nai Brith's appeal - GIC's decision not to revoke Katriuk's citizenship was rationally defensible - It was open to it to find that the facts as found in the Katriuk Reference did not implicate any of the three main elements of Canada's war crimes policy - See paragraphs 83 to 91.

Aliens - Topic 2507

Naturalization - General - Duty of fairness - Odynsky and Katriuk obtained citizenship by false representation or knowingly concealing material circumstances - The Minister of Citizenship and Immigration recommended to the Governor in Council (GIC) that they should cease to be a Canadian citizen - The GIC issued Orders-in-Council under s. 10 of the Citizenship Act declining to revoke their citizenship - The League for Human Rights of B'nai Brith Canada's (B'nai Brith) judicial review applications were unsuccessful - B'nai Brith appealed - It argued that, as a matter of procedural fairness, the GIC should have received the submissions that it had made to the Minister - It complained that submissions of the Ukrainian Canadian Congress to the Minister were included in the Minister's reports and made their way to the GIC, yet its submissions were not included - The Federal Court of Appeal rejected the argument - Given the importance of the decisions to Odynsky and Katriuk, the Minister appropriately invited them to make submissions - Odynsky included submissions of the Ukrainian Canadian Congress amongst his submissions to the Minister - The Minister appropriately included all of the submissions in the reports in order to assist the GIC in making its decisions - However, the Minister robustly put to the GIC many of the viewpoints and perspectives that the B'nai Brith had advanced to the Minister - In any event, given the nature of the issues before the GIC, procedural fairness obligations in favour of B'nai Brith did not arise under this legislative regime - See paragraphs 92 to 95.

Aliens - Topic 4061.1

Practice - Judicial review and appeals - Standing - [See both Administrative Law - Topic 3347 ].

Courts - Topic 4071.4

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standing - [See both Administrative Law - Topic 3347 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See both Administrative Law - Topic 3347 ].

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1; 42 Imm. L.R.(2d) 248 (T.D.), refd to. [para. 12].

Rothmans of Pall Mall Canada Ltd. and Imperial Tobacco Ltd. v. Minister of National Revenue et al., [1976] 2 F.C. 500; 10 N.R. 153 (F.C.A.), refd to. [para. 58].

Irving Shipbuilding Inc. et al. v. Canada (Attorney General) et al. (2009), 389 N.R. 72; 2009 FCA 116, refd to. [para. 58].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 59].

Harris et al. v. Minister of National Revenue, [2000] 4 F.C. 37; 256 N.R. 221 (F.C.A.), refd to. [para. 61].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 70].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 70].

Oberlander v. Canada (Attorney General) (2009), 396 N.R. 146; 313 D.L.R.(4th) 378; 2009 FCA 330, refd to. [para. 81].

Oberlander v. Canada (Attorney General) (2003), 238 F.T.R. 35; 2003 FC 944, refd to. [para. 81].

Oberlander v. Canada (Attorney General), [2005] 1 F.C.R. 3; 320 N.R. 366; 2004 FCA 213, refd to. [para. 81].

Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.), refd to. [para. 81].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 85].

Thamotharem v. Canada (Minister of Citizenship and Immigration), [2008] 1 F.C.R. 385; 366 N.R. 301; 2007 FCA 198, refd to. [para. 86].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 95].

Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 95].

Coopers and Lybrand v. Minister of National Revenue, [1979] 1 S.C.R. 495; 24 N.R. 163, refd to. [para. 95].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 95].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353; 16 Admin. L.R. 233, refd to. [para. 95].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 10, sect. 18 [para. 11].

Authors and Works Noticed:

French, Richard, The Privy Council Office: Support for Cabinet Decision Making, in Schultz, Richard, Kruhlak, Orest M., and Terry, John C., The Canadian Political Process (3rd Ed. 1979), pp. 363 to 394 [para. 77].

Mullan, David, Administrative Law (2001), p. 165 [para. 95].

Schultz, Richard, Kruhlak, Orest M., and Terry, John C., The Canadian Political Process (3rd Ed. 1979), pp. 363 to 394 [para. 77].

Ward, Norman, Dawson's The Government of Canada (6th Ed. 1987), pp. 203, 204 [para. 77].

Counsel:

David Matas, for the appellant;

David Gates, for the respondent, the Attorney General of Canada;

Orest H.T. Rudzik, for the respondent, Vladimir Katriuk, in action no. A-366-09;

Barbara Jackman, for the respondent, Wasyl Odynsky, in action no. A-365-09.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, the Attorney General of Canada;

Orest H.T. Rudzik, Toronto, Ontario, for the respondent, Vladimir Katriuk;

Jackman & Associates, Toronto, Ontario, for the respondent, Wasyl Odynsky.

This appeal was heard at Toronto, Ontario, on May 4, 2010, before Sharlow, Trudel and Stratas, JJ.A., of the Federal Court of Appeal. The following reasons for judgment were delivered at Ottawa, Ontario, on November 12, 2010, by Stratas, J.A.