Ishaq v. Canada (Minister of Citizenship and Immigration), (2015) 474 N.R. 268 (FCA)

• Judge: Stratas, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 22, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 474 N.R. 268 (FCA);2015 FCA 151

Ishaq v. Can. (M.C.I.) (2015), 474 N.R. 268 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. JL.004

The Minister of Citizenship and Immigration (appellant) v. Zunera Ishaq (respondent)

(A-124-15; 2015 FCA 151; 2015 CAF 151)

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

Federal Court of Appeal

Stratas, J.A.

June 22, 2015.

Summary:

Ishaq was a Pakistani national who had been granted Canadian citizenship. Her religious beliefs required her to wear a niqab (a veil that covered most of her face). A government policy required her to remove the niqab during the oath of citizenship. Ishaq challenged the policy on a number of grounds, including freedom of religion and equality rights under the Charter.

The Federal Court, in a decision reported at (2015), 475 F.T.R. 94, allowed Ishaq's application, finding that, to the extent that the policy interfered with a citizenship judge's duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath, it was unlawful. The portions of the policy and manual that required citizenship candidates to remove face coverings or be observed taking the oath were unlawful. The Minister of Citizenship and Immigration appealed. A number of parties brought motions to intervene in the appeal.

The Federal Court of Appeal, per Stratas, J.A., denied the motions.

Practice - Topic 684

Parties - Adding or substituting parties - Intervenors - Where constitutional issue raised - [See second Practice - Topic 685 ].

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - The Federal Court of Appeal, per Stratas, J.A., discussed the test to be applied on motions to intervene in an appeal, focussing on the requirement that the proposed intervener would advance different and valuable insights and perspectives that would actually further the court's determination of the matter - On appeal, interveners could not make new legal arguments that were foreclosed by the evidentiary record - To succeed on the motion, the proposed intervener had to "1. identify one or more specific controlling idea(s) on which the case will turn; 2. offer, with specificity, the submission(s) it will make on the controlling idea(s), showing why it will advance the Court's appreciation of the controlling idea(s); 3. ensure that its submission(s) will not need to go beyond the evidentiary record; merely saying so is not good enough; 4. distinguish its submission(s) from those of others already before the Court, e.g., on the ground that the submission(s) have not been made, or that its perspectives, experience or expertise-specifically identified-will cast a different light on the matter." - See paragraphs 1 to 28.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - Ishaq was a Pakistani national who had been granted Canadian citizenship - Her religious beliefs required her to wear a niqab (a veil that covered most of her face) - A government policy required her to remove the niqab during the oath of citizenship - Ishaq challenged the policy on a number of grounds, including freedom of religion and equality rights under the Charter - Boswell, J., found in her favour, on issues other than the Charter issues - The Minister of Citizenship and Immigration appealed - A number of parties brought motions to intervene in the appeal - The Federal Court of Appeal, per Stratas, J.A., denied the motions, finding "on the basis of the rather unspecific and unparticularized submissions made to me and on the basis of the specific evidentiary record and the particular issues raised in this case, I am not persuaded that the applicants will assist in the determination of a factual or legal issue that is actually before us and, in any event, not in a manner different from the existing parties to the appeal." - To the extent that specific issues were raised, the evidentiary record did not allow them - The inability to expand that record on appeal foreclosed many of the broad and general submissions that were proposed - Of the arguments that were founded on evidence, Ishaq's memorandum covered most of them - See paragraphs 29 to 41.

Cases Noticed:

Pictou Landing Band Council et al. v. Canada (Attorney General) (2014), 456 N.R. 365; 2014 FCA 21, appld. [para. 5].

Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74; 29 F.T.R. 272 (T.D.), affd. [1990] 1 F.C. 90; 103 N.R. 391 (F.C.A.), not appld. [para. 11].

Miller v. Canada (Attorney General) (2002), 293 N.R. 391; 220 D.L.R.(4th) 149; 2002 FCA 370, refd to. [para. 12].

Paradis Honey Ltd. et al. v. Canada (Attorney General) (2015), 472 N.R. 75; 382 D.L.R.(4th) 720; 2015 FCA 89, refd to. [para. 12].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 15].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 15].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 15].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 15].

Canada (Attorney General) v. Delios (2015), 472 N.R. 171; 2015 FCA 117, refd to. [para. 15].

Canadian Doctors for Refugee Care et al. v. Canada (Attorney General) et al. (2015), 470 N.R. 167; 2015 FCA 34, refd to. [para. 17].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 18].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 18].

Taypotat v. Taypotat et al. (2015), 471 N.R. 173; 2015 SCC 30, refd to. [para. 18].

Kahkewistahaw First Nation v. Taypotat - see Taypotat v. Taypotat et al.

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 21].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1987] 3 F.C. 593; 78 N.R. 180 (F.C.A.), refd to. [para. 22].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [1999] 3 S.C.R. 845; [1999] N.R. Uned. 167, refd to. [para. 22].

Forest Ethics Advocacy Association et al. v. National Energy Board et al., [2014] N.R. Uned. 46; 2014 FCA 88, refd to. [para. 22].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250; 73 D.L.R.(4th) 686, refd to. [para. 23].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 251 N.R. 1; 250 A.R. 314; 213 W.A.C. 314; 2000 SCC 2, refd to. [para. 23].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385, refd to. [para. 24].

Gitxaala Nation v. Canada, [2015] N.R. Uned. 50; 2015 FCA 73, refd to. [para. 27].

R. v. N.S. et al., [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 30].

Loyola High School v. Quebec (Attorney General) (2015), 468 N.R. 323; 382 D.L.R.(4th) 195; 2015 SCC 12, refd to. [para. 30].

Mouvement laïque québécois et al. v. Saguenay (City) (2015), 470 N.R. 1; 382 D.L.R.(4th) 385; 2015 SCC 16, refd to. [para. 30].

Counsel:

Peter Southey, Negar Hashemi and Julie Waldman, for the appellant;

Lorne Waldman, Naseem Mithoowani and Marlys A. Edwardh, for the respondent;

Reema Khawja and Rana Arbabian, for the proposed intervener, Ontario Human Rights Commission;

Cara Faith Zwibel, for the proposed intervener, Canadian Civil Liberties Association;

Faisal Bhabha and Khalid M. Elgazzar, for the proposed intervener, National Council of Canadian Muslims;

Ranjan K. Agarwal, for the proposed intervener, South Asian Legal Clinic of Ontario and South Asian Bar Association of Toronto;

Joanna Birenbaum, for the proposed intervener, Barbra Schlifer Commemorative Clinic;

Jasmine T. Akbarali and Cynthia B. Kuehl, for the proposed intervener, Women's Legal Education and Action Fund.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Waldman & Associates, Toronto, Ontario and Sack Goldblatt Mitchell LLP, Toronto, Ontario, for the respondent;

Ontario Human Rights Commission, Toronto, Ontario, for the proposed intervener, Ontario Human Rights Commission;

Canadian Civil Liberties Association, Toronto, Ontario, for the proposed intervener, Canadian Civil Liberties Association;

Office of Khalid Elgazzar, Ottawa, Ontario, for the proposed intervener, National Council of Canadian Muslims (NCCM);

Bennett Jones LLP, Toronto, Ontario, for the proposed intervener, South Asian Legal Clinic of Ontario and South Asian Bar Association of Toronto;

Ursel Phillips Fellows Hopkinson LLP, Toronto, Ontario, for the proposed intervener, Barbra Schlifer Commemorative Clinic;

Lerners LLP, Toronto, Ontario, for the proposed intervener, Women's Legal Education and Action Fund.

These motions were dealt with in writing without the appearance of parties by Stratas, J.A., of the Federal Court of Appeal, who delivered the following reasons for order at Ottawa, Ontario, on June 22, 2015.