Oberlander v. Canada (Attorney General), 2003 FC 944

• Judge: Martineau, J.
• Court: Federal Court (Canada)
• Case Date: June 23, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FC 944;(2003), 238 F.T.R. 35 (FC)

Oberlander v. Can. (A.G.) (2003), 238 F.T.R. 35 (FC)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. AU.017

Helmut Oberlander (applicant) v. The Attorney General of Canada (respondent)

(T-1505-01; 2003 FC 944)

Indexed As: Oberlander v. Canada (Attorney General)

Federal Court

Martineau, J.

August 1, 2003.

Summary:

The Governor in Council revoked the applicant's Canadian citizenship. The applicant sought judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - The applicant immigrated to Canada in 1954 - He became a Canadian citizen in 1960 - In February 2000, the Federal Court held that the applicant had obtained his Canadian citizenship by false representation as he concealed his membership with the EK 10a, a mobile mass killing squad which implemented the Third Reich's final solution during the Second World War - The Minister of Citizenship and Immigration made a report to the Governor in Council - By order-in-council, the Governor in Council revoked the applicant's citizenship - The applicant sought judicial review on the basis that the Governor in Council failed to provide adequate reasons for its decision - The Federal Court held that the Minister's report was the foundation for the Governor in Council's decision - The decision expressly referred to the report and endorsed the findings - See paragraphs 12 to 17.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - [See Statutes - Topic 5518 ].

Crown - Topic 545

Orders-in-council - Judicial review - The Federal Court held that decisions of the Governor in Council were reviewable on the same conditions as statutes - Judicial intervention was appropriate when an order-in-council was beyond the authority conferred on the Governor in Council to make such order - See paragraph 9.

Crown - Topic 545

Orders-in-council - Judicial review - [See Statutes - Topic 5517 ].

Statutes - Topic 5517

Operation and effect - Delegated legislation - Orders-in-council - Judicial review - The applicant immigrated to Canada in 1954 - He became a Canadian citizen in 1960 - In February 2000, the Federal Court held that the applicant had obtained his Canadian citizenship by false representation as he concealed his membership with the EK 10a, a mobile mass killing squad which implemented the Third Reich's final solution during the Second World War - By order-in-council, the Governor in Council revoked the applicant's citizenship - The applicant sought judicial review - The Federal Court held that given the relative expertise of the decision maker, the purpose of the legislation, the existence of prior safeguards by way of a referral to the Federal Court, the applicable standard of review was patent unreasonableness - See paragraphs 18 to 20.

Statutes - Topic 5518

Operation and effect - Delegated legislation - Orders-in-council - Validity - General - The applicant immigrated to Canada in 1954 - He became a Canadian citizen in 1960 - In February 2000, the Federal Court held that the applicant had obtained his Canadian citizenship by false representation as he concealed his membership with the EK 10a, a mobile mass killing squad which implemented the Third Reich's final solution during the Second World War - By order-in-council, the Governor in Council revoked the applicant's citizenship - The applicant sought judicial review - The Federal Court held that the Governor in Council properly exercised his discretion - There was no evidence that the policy guidelines established with respect to citizenship were not applied in a fair and consistent manner - The decision was neither clearly wrong nor patently unreasonable - See paragraphs 21 to 25.

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (T.D.), refd to. [para. 6].

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. 9].

Reyes v. Canada (Attorney General), [1983] 2 F.C. 125 (T.D.), refd to. [para. 9].

Saskatchewan Wheat Pool et al. v. Canada (Attorney General) (1994), 67 F.T.R. 98 (T.D.), refd to. [para. 9].

Al Yamani v. Canada (Solicitor General) et al., [1996] 1 F.C. 174; 103 F.T.R. 105 (T.D.), refd to. [para. 13].

Canada (Minister of Citizenship and Immigration) v. Bogutin (1997), 144 F.T.R. 1 (T.D.), refd to. [para. 14].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 14].

Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72; 280 N.R. 201, refd to. [para. 14].

Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.), refd to. [para. 14].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 208 D.L.R.(4th) 1, refd to. [para. 14].

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. et al. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91; 143 D.L.R.(3d) 577, refd to. [para. 15].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 20].

Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207 (S.C.C.), refd to. [para. 20].

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 223 D.L.R.(4th) 599 (S.C.C.), refd to. [para. 20].

Dr. Q. v. College of Physicians and Surgeons of British Columbia - see Dr. Q., Re.

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201, refd to. [para. 20].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 20].

Bazargan v. Ministre de l'Emploi et de l'Immigration (1996), 205 N.R. 282 (F.C.A.), refd to. [para. 23].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 23].

Alza v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 187 (T.D.), refd to. [para. 23].

Zadeh v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 210 (T.D.), refd to. [para. 23].

Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (T.D.), refd to. [para. 24].

Lidder v. Minister of Employment and Immigration, [1992] 2 F.C. 621; 136 N.R. 254 (F.C.A.), refd to. [para. 24].

Authors and Works Noticed:

Canada, Public Report Canada's War Crimes Program (2000-2001), p. 3 [para. 22].

Counsel:

Barbara Jackman and Eric Hafemann, for the applicant;

Peter Vita and Neeta Logsetty, for the respondent.

Solicitors of Record:

Barbara Jackman, Toronto, Ontario and Eric Hafemann, Waterloo, Ontario, for the applicant;

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

This application was heard on June 23, 2003, at Toronto, Ontario, by Martineau, J., of the Federal Court, who delivered the following decision on August 1, 2003.