Canada (Minister of Citizenship and Immigration) v. Seifert, (2002) 221 F.T.R. 228 (TD)

• Court: Federal Court (Canada)
• Case Date: August 13, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 221 F.T.R. 228 (TD)

Can. (M.C.I.) v. Seifert (2002), 221 F.T.R. 228 (TD)

MLB headnote and full text

Temp. Cite: [2002] F.T.R. TBEd. AU.017

The Minister of Citizenship and Immigration (plaintiff) v. Michael Seifert (defendant)

(T-2016-01; 2002 FCT 859)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Seifert

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

August 13, 2002.

Summary:

The Minister sought revocation of Seifert's citizenship on the ground that he was admitted to Canada on the basis of false representations, fraud or knowing concealment of material circumstances. Seifert counterclaimed, alleging a broad spectrum of pleas including Charter breaches, misfeasance of public duty, defamation and bias by the Minister. The Minister applied under rule 221 to strike the counterclaim for, inter alia, failing to disclose a reasonable cause of action and abuse of process.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the application to strike, with the exception of several aspects of the s. 7 and s. 11 Charter claims. The Prothonotary permitted Seifert to amend his bias claim to plead the standard appropriate to the Minister (midpoint between open mind and reasonable apprehension of bias).

Administrative Law - Topic 2094.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Crown Ministers - The Minister sought to have Seifert's citizenship revoked on account of his being admitted to Canada on the basis of false representations, fraud or knowing concealment of material circumstances - The Minister made certain personal, public comments which Seifert alleged constituted bias interfering with the Minister's ability to carry out her functions properly - A Prothonotary of the Federal Court of Canada, Trial Division, refusing to strike the claim (after amendment), stated that "the standard to be applied to a government minister must be somewhere on the continuum between a reasonable apprehension of bias and an open mind. ... the appropriate standard for the Minister in the present instance is mid-way on the continuum because on the one hand, the Minister is a politician, elected at least in part by reason of her views. On the other hand, the Minister's decision goes beyond the political or that of policy-making, ... but rather is a decision which must be judicious, just and even juristic. ... all of us have our personal views, but unless they become biases or prejudices, or emotions, which prevent us from the proper exercise of our functions, do not disqualify a person from decision-making." - See paragraph 54.

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration (incl. citizenship) - A Prothonotary of the Federal Court of Canada, Trial Division, stated that although there existed binding authority that ss. 7 and 11 of the Charter were not invoked by a specific section of the Immigration Act (such as revocation of citizenship proceedings under s. 18), it was not plain and obvious that a s. 7 or s. 11 challenge to the legislative scheme of the Immigration Act as a whole could not succeed - See paragraphs 21 to 33.

Civil Rights - Topic 1323

Security of the person - Immigration - Citizenship - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity) - A Prothonotary of the Federal Court of Canada, Trial Division, discussed the general rule that the Charter was not to be applied retroactively - The Prothonotary noted that "while a discreet event may have occurred pre-Charter, there may be an ongoing effect which requires relief under the Charter" - The Prothonotary distinguished between a retroactive application and a request for a present-day application of the Charter to prohibit the effect of past discriminatory policy - See paragraphs 34 to 39.

Practice - Topic 2213

Pleadings - Striking out pleadings - With leave to amend - A Prothonotary of the Federal Court of Canada, Trial Division, stated that "if a pleading might possibly succeed if it were amended, such an amendment should be allowed. To deny an amendment, on a motion to strike out a pleading, there must not be a scintilla of a cause of action" - See paragraph 12.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - A Prothonotary of the Federal Court of Canada, Trial Division, stated that "a party should not be driven from the judgment seat if there is a chance that he or she might succeed, notwithstanding either the novelty of the cause of action or the length and complexity of issue. Rather, the pleading must contain a radical defect, to the extent that the moving party can demonstrate it to be plain, obvious and beyond doubt that the pleading must fail for want of cause of action, before a pleading may be struck out. If that is not enough of a burden, the facts which have been pleaded must, for the purposes of a motion based upon want of cause of action, be taken as proven" - See paragraph 8.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - A Prothonotary of the Federal Court of Canada, Trial Division, stated that "a frivolous plea is one so palpably bad that the court needs no real argument to be convinced of that fact. Indeed, a frivolous plea is indicative of bad faith. Frivolous and vexatious pleas include those brought or carried on by a party who is not acting bona fide. Indeed it is a proceeding which will lead to no practical result. The concepts of frivolous and vexatiousness define the obviously unsustainable claim ... The frivolous and vexatious pleading includes those which are an abuse of process. ... an abusive action is that which misuses or perverts the procedures of the court. An abusive action is one which can lead to no possible good, indeed an action in which a party is dragged through long and expensive litigation for no possible benefit." - See paragraphs 10 to 11.

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - [See Practice - Topic 2231 ].

Cases Noticed:

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. 8].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 8].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 8].

Waterside Ocean Navigation Co. v. International Navigation Ltd., [1977] 2 F.C. 257 (F.C.T.D.), refd to. [para. 9].

Creaghan Estate v. Canada, [1972] F.C. 732 (F.C.T.D.), refd to. [para. 9].

Larden v. Canada et al. (1998), 145 F.T.R. 140 (T.D.), refd to. [para. 10].

Attorney General of Duchy of Lancaster v. London and North Western Railway Co., [1892] 3 Ch. 274 (C.A.), refd to. [para. 11].

Ashmore v. British Coal Corp., [1990] 2 Q.B. 338 (C.A.), refd to. [para. 11].

Willis v. Earl Beauchamp (1886), 11 P.D. 59 (C.A.), refd to. [para. 11].

Kiely v. Canada (Minister of Justice) (1987), 10 F.T.R. 10 (T.D.), refd to. [para. 12].

Titan Linkabit Corp. et al. v. S.E.E. See Electronic Engineering Inc. et al. (1992), 58 F.T.R. 1; 44 C.P.R.(3d) 469 (T.D.), refd to. [para. 17].

Procter & Gamble Co. et al. v. Nabisco Brands Ltd. (1985), 62 N.R. 364; 5 C.P.R.(3d) 417 (F.C.A.), refd to. [para. 19].

Canada (Minister of Citizenship and Immigration) v. Fast (2001), 217 F.T.R. 166; 208 D.L.R.(4th) 729 (T.D.), refd to. [para. 22].

Canada (Ministre de la Citoyenneté et l'Immigration) v. Obodzinsky (2000), 199 F.T.R. 1 (T.D.), affd. (2001), 278 N.R. 182 (F.C.A.), refd to. [para. 23].

Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.), affd. (1992), 143 N.R. 316 (S.C.C.), refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161 (T.D.), affd. (1999), 252 N.R. 68; 11 Imm. L.R.(3d) 178 (F.C.A.), refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Dueck (1997), 139 F.T.R. 262 (T.D.), refd to. [para. 24].

Nguyen v. Minister of Employment and Immigration (1993), 151 N.R. 69 (F.C.A.), refd to. [para. 24].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 25].

R. v. James (1986), 15 O.A.C. 319; 27 C.C.C.(3d) 1 (C.A.), refd to. [para. 35].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 35].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 42].

Chhabra v. Minister of National Revenue (1989), 26 F.T.R. 288; 89 D.T.C. 5310 (T.D.), refd to. [para. 43].

Francoeur et al. v. Canada (1994), 78 F.T.R. 109 (T.D.), refd to. [para. 44].

Beno v. Létourneau et al. (1997), 126 F.T.R. 241 (T.D.), revd. (1997), 212 N.R. 377 (F.C.A.), refd to. [para. 45].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 47].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 48].

Old St. Boniface Residence Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 49].

Save Richmond Farmland Society et al. v. Richmond (Township), [1990] 3 S.C.R. 1213; 116 N.R. 68, refd to. [para. 50].

Zündel v. Canada (Minister of Citizenship and Immigration) (1998), 221 N.R. 213 (F.C.A.), refd to. [para. 53].

Authors and Works Noticed:

Brown, The Law of Defamation in Canada (2nd Ed. 1999), pp. 12-31, 12-32 [para. 65].

Driedger, Elmer A., The Construction of Statutes (3rd Ed. 1994), p. 511 [para. 34].

Gatley, Libel and Slander (9th Ed. 1998), p. 282 [para. 64].

Counsel:

Beverly J. Wilton, for the plaintiff;

Douglas H. Christie, for the defendant.

Solicitors of Record:

Morris A. Rosenberg, Deputy Attorney General of Canada, Vancouver, British Columbia, for the plaintiff;

Douglas H. Christie, Vancouver, British Columbia, for the defendant.

This motion was submitted in writing to Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on August 13, 2002.