Khalil et al. v. Canada (Secretary of State), (1999) 243 N.R. 369 (FCA)

• Judge: Linden, Robertson and McDonald, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 03, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 243 N.R. 369 (FCA)

Khalil v. Can. (1999), 243 N.R. 369 (FCA)

MLB headnote and full text

Temp. Cite: [1999] N.R. TBEd. JL.037

Fadia Ezzat Khalil, Khaled Mohammad, Soha Mohammad and Lama Mohammad, by their Litigation Guardian Fadia Ezzat Khalil (appellants) v. Secretary of State for Canada (respondent)

(A-456-96)

Indexed As: Khalil et al. v. Canada (Secretary of State)

Federal Court of Appeal

Linden, Robertson and McDonald, JJ.A.

June 30, 1999.

Summary:

Khalil and her husband jointly sought permanent residence. Khalil's husband was ordered inadmissible to Canada because he made a misrepresentation of a material fact on the joint application. Khalil et al. alleged that a citizenship judge advised her that she would be called to take the citizenship oath, but they were not called. Khalil et al. applied for mandamus compelling the Secre­tary of State to allow them to take the citi­zenship oath and to issue a citizenship certi­ficate.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 79 F.T.R. 195, declined to issue mandamus against the Secretary of State, but ordered a citizenship judge to deal with the citizenship application in accordance with s. 14 of the Citizenship Act. Khalil et al. appealed.

The Federal Court of Canada, Robertson, J.A., dissenting, dismissed the appeal.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - Khalil and her husband jointly sought permanent residence - The husband, who made a material misrepre­sentation, was ruled inadmissible - Khalil was not called to take her citizenship oath after allegedly being advised that she would be called - Khalil applied for mandamus compelling the Minister to allow them to take the citizenship oath and to issue a citizenship certificate - The Federal Court of Canada, Trial Division, denied the requested mandamus, but ordered Khalil's application be dealt with under the Citizenship Act - Khalil appealed, arguing that the mandamus should issue - The Federal Court of Appeal dismissed the appeal - Khalil failed to satisfy all the citizenship condi­tions - She failed to prove she had clean hands.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - Khalil and her husband jointly sought permanent residence - The husband, who made a material misrepre­sentation, was ruled inadmissible - Khalil was allegedly advised that she would be called to take her citizenship oath, but was not called - Khalil applied for mandamus compelling the Minister to allow her to, inter alia, take the citizenship oath - The Federal Court of Canada, Trial Division, denied the requested mandamus - Khalil appealed - The Federal Court of Appeal dismissed the appeal - The court stated that "[t]he Minister cannot arbitrarily withhold citizenship from someone who has qual­ified for it. Where the Minister has infor­mation that the requirements of the Act have not been met, however, she may delay the conferral of citizenship until it is determined that all the conditions prece­dent have been met." - See paragraphs 13 to 14.

Administrative Law - Topic 3680

Judicial review - Mandamus - Mandamus to courts and judicial officers - Judicial duties - General - [See both Administra­tive Law - Topic 3503 ].

Aliens - Topic 2503

Naturalization - Duty of authorities to process applications - [See both Adminis­trative Law - Topic 3503 ].

Cases Noticed:

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, consd. [paras. 11, 40, footnotes 6, 18].

D'Souza v. Minister of Employment and Immigration, [1983] 1 F.C. 343 (F.C.A.), refd to. [paras. 15, 44, footnotes 10, 19].

Mohammed v. Canada (Minister of Citi­zenship and Immigration), [1997] 3 F.C. 299; 130 F.T.R. 294 (T.D.), refd to. [para. 17, footnote 12].

Fitzgerald v. Casualty Co. of Canada (1981), 31 Nfld. & P.E.I.R. 521; 87 A.P.R. 521 (Nfld. T.D.), refd to. [para. 20, footnote 13].

Borden v. Co-operators General Insurance Co. (1984), 63 N.S.R.(2d) 375; 141 A.P.R. 375 (N.S.T.D.), refd to. [para. 20, footnote 13].

Ahani v. Canada (Minister of Citizenship and Immigration), [1999] N.R. Uned. 052 (F.C.A.), refd to. [para. 21, footnote 14].

Independent Contractors and Business Association et al. v. Canada (Minister of Labour) et al. (1998), 225 N.R. 19; 6 Admin. L.R.(3d) 92; 39 C.L.R.(2d) 121 (F.C.A.), refd to. [para. 22, footnote 16].

Friends of the Oldman River Society v. Canada (Minister of Transport and Min­ister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; [1992] 2 W.W.R. 193; 88 D.L.R.(4th) 1, refd to. [para. 23, footnote 17].

Strange, C.J.P.C. v. Mackin, P.C.J. (1996), 176 N.B.R.(2d) 321; 447 A.P.R. 321; 134 D.L.R.(4th) 243 (C.A.), refd to. [para. 23, footnote 17].

Mackin v. New Brunswick - see Strange, C.J.P.C. v. Mackin, P.C.J.

Scott v. College of Physicians and Sur­geons (Sask.) (1992), 100 Sask.R. 291; 18 W.A.C. 291; 95 D.L.R.(4th) 706 (C.A.), refd to. [para. 23, footnote 17].

R. v. Corbeil (1986), 13 O.A.C. 382; 27 C.C.C.(3d) 245 (C.A.), refd to. [para. 23, footnote 17].

R. v. Tracey (1984), 4 D.L.R.(4th) 768 (Ont. C.A.), refd to. [para. 23, footnote 17].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, affing. (1995), 185 N.R. 291; 127 D.L.R.(4th) 329 (F.C.A.), refd to. [para. 52, footnote 20].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114, refd to. [para. 53, foot­note 21].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998 Looseleaf Ed.), gen­erally [para. 13, footnote 8].

Counsel:

Barbara Jackman, for the appellants;

Ian Hicks, for the respondent.

Solicitors of Record:

Jackman, Waldman & Associates, Toronto, Ontario, for the appellants;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Toronto, Ontario, on June 3, 1999, before Linden, Robertson and McDonald, JJ.A., of the Federal Court of Appeal. The following judgment of the court was delivered on June 30, 1999, including the following opinions:

Linden, J.A. (McDonald, J.A., concur­ring) - see paragraphs 1 to 30;

Robertson, J.A., dissenting - see para­graphs 31 to 56.