Oberlander v. Canada (Attorney General), (2015) 473 F.T.R. 169 (FC)

• Judge: Russel, J.
• Court: Federal Court (Canada)
• Case Date: February 18, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 473 F.T.R. 169 (FC);2015 FC 46

Oberlander v. Can. (A.G.) (2015), 473 F.T.R. 169 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JA.047

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

(T-2127-12; 2015 FC 46)

Indexed As: Oberlander v. Canada (Attorney General)

Federal Court

Russel, J.

January 13, 2015.

Summary:

The Minister of Citizenship and Immigration issued a notice regarding revocation of citizenship to Oberlander, advising him that the Minister intended to make a report to the Governor in Council (GIC) on the grounds that he was admitted to Canada for permanent residence and had obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances. Oberlander requested a reference.

The Federal Court of Canada, Trial Division, in a decision reported at (2000), 185 F.T.R. 41, determined that Oberlander was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by knowingly concealing material circumstances. The Minister submitted a report to the GIC recommending revocation of Oberlander's Canadian citizenship. The GIC revoked Oberlander's Canadian citizenship. Oberlander applied for judicial review.

The Federal Court, in a decision reported at (2003), 238 F.T.R. 35, dismissed the application. Oberlander appealed.

The Federal Court of Appeal, in a decision reported at (2004), 320 N.R. 366, allowed the appeal and remitted the matter to the GIC for a new determination. The GIC revoked Oberlander's citizenship again. Oberlander sought judicial review of the GIC's second decision.

The Federal Court, in a decision reported at (2008), 336 F.T.R. 179, dismissed the application. Oberlander appealed.

The Federal Court of Appeal, in a decision reported at (2009), 396 N.R. 146, allowed the appeal in part and remitted the matter to the GIC to consider the issue of duress, notwithstanding that the issue had not been previously raised. The GIC revoked Oberlander's citizenship for a third time. Oberlander sought judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The Governor in  Council (GIC) revoked Oberlander's citizenship on the ground that he was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by knowingly concealing material circumstances - On judicial review, the issues were, inter alia: a. did the GIC err in law in applying the wrong standard for assessing the defence of duress; b. did the GIC err in law in ignoring and misstating evidence, such that it made erroneous findings of fact in a perverse and capricious manner; c. did the GIC breach principles of procedural fairness in failing to allow Oberlander or counsel an opportunity to comment on rebuttal arguments put forward in its final Report to the GIC; d. did the GIC breach principles of procedural fairness, the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms in rendering a finding on credibility without interviewing Oberlander; and e. did the GIC err in law in reaching an unreasonable decision? - The Federal Court held that issues a and b would be reviewed on a reasonableness standard as the GIC's application of the law to the facts raised a question where "the legal issues cannot be easily separated from the factual issues" - Issues c and d raised issues of procedural fairness and would be reviewed on a correctness standard - Issue e required the review of a decision of the GIC; such decisions were reviewed on a reasonableness standard - Two additional issues raised questions of law for the court to determine and no review standard applied - See paragraphs 26 to 30.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - [See Aliens - Topic 1304 ].

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Oberlander was found to have obtained his citizenship by false representation or by knowingly concealing material circumstances within the meaning of s. 18(1) of the Citizenship Act - Justice MacKay found that Oberlander had served as an interpreter for Einsatzkommando 10a, a unit involved in war crimes during World War II - This was a final and non-reviewable decision - In response, the Minister of Citizenship and Immigration submitted a report to the Governor in Council (GIC) recommending revocation of Oberlander's Canadian citizenship - The GIC revoked his citizenship - After a partially successful judicial review on appeal, the matter was remitted to the GIC to consider the issue of duress - The GIC revoked Oberlander's citizenship - Oberlander applied for judicial review - The Federal Court dismissed the application - The decision and reasons consisted of the Order in Council revoking Oberlander's citizenship and the reasons contained in the Minister's Report - The usual statutory process was followed in arriving at the decision - There was nothing inherently unfair in the process - Oberlander was given a fair and meaningful opportunity to present his case on duress and bring forward and comment upon the facts that supported his position - He did precisely that - He was told that the final recommendation would be completed after reviewing and considering his reply, and he made his reply submissions knowing that this would occur - He did not ask to see the final recommendation so that he could make further submissions - He claimed that the final Report was an "instrument of advocacy" and should have been disclosed - However, his argument had been rejected in prior decisions by this court and the Court of Appeal - In this case, the Minister's recommendations constituted the reasons for the decision, and procedural fairness did not require that the final reasons be presented for possible rebuttal - If they contained a reviewable error, then Oberlander had the right to bring them to the court for review - The court also rejected Oberlander's argument that the final portion of the Minister's Report that dealt with his reply contained new facts, new argument, and "spin" that he had not been allowed to address in his own submissions - See paragraphs 115 to 177.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Oberlander was found to have obtained his citizenship by false representation or by knowingly concealing material circumstances within the meaning of s. 18(1) of the Citizenship Act - Justice MacKay found that Oberlander had served as an interpreter for Einsatzkommando 10a, a unit involved in war crimes during World War II - This was a final and non-reviewable decision - In response, the Minister of Citizenship and Immigration submitted a report to the Governor in Council (GIC) recommending revocation of Oberlander's Canadian citizenship - The GIC revoked his citizenship - After a partially successful judicial review on appeal, the matter was remitted to the GIC to consider the issue of duress - The GIC revoked Oberlander's citizenship - Oberlander applied for judicial review - He argued that an oral interview should have been conducted because the Minister's report, and therefore the GIC decision, was based, at least in part, on a negative credibility assessment of Oberlander; thus, the Minister and GIC breached procedural fairness, the Bill of Rights and the Charter of Rights and Freedoms in rendering its decision that he was not credible without conducting an oral interview - The Federal Court rejected the argument - A full reading of the Report revealed that it was based on the Minister not being satisfied that there was sufficient evidence to support duress - While the Report used confusing language at times, in the context of the decision as a whole, the Report's conclusions were based upon an insufficiency of evidence - See paragraphs 178 to 203.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Oberlander was found to have obtained his citizenship by false representation or by knowingly concealing material circumstances within the meaning of s. 18(1) of the Citizenship Act - Justice MacKay found that Oberlander had served as an interpreter for Einsatzkommando (Ek) 10a, a unit involved in war crimes during World War II - This was a final and non-reviewable decision - In response, the Minister of Citizenship and Immigration submitted a report to the Governor in Council (GIC) recommending revocation of Oberlander's Canadian citizenship - The GIC revoked his citizenship - After a successful judicial review on appeal, the matter was remitted to the GIC to consider the issue of duress - The GIC revoked Oberlander's citizenship - Oberlander applied for judicial review - The Federal Court dismissed the application - The Report found that Oberlander's failure to desert while on leave or while serving as a solitary guard cast doubt on the credibility of his assertion that he was facing an imminent physical threat ("imminent, real, and inevitable threat to his life") - In reaching this conclusion, the Report considered the following findings: i. Oberlander maintained a continuous, lengthy service for 3-4 years, only surrendering at the end of the war; ii. Oberlander voluntarily accepted the War Service Cross Second Class award for his service in Ek 10a; iii. Oberlander voluntarily joined his mother's application for German citizenship; and iv. Oberlander had numerous opportunities to desert as he was on leave many times and for several weeks on each occasion - While there were some problems in the way that the evidence was handled, the court found no reviewable error - See paragraphs 205 to 231.

Aliens - Topic 1744.2

Exclusion and expulsion - Immigration - Exclusion - Persons who have committed war crimes or crimes against humanity - [See fourth Aliens - Topic 2504 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Oberlander was found to have obtained his citizenship by false representation or by knowingly concealing material circumstances within the meaning of s. 18(1) of the Citizenship Act - Justice MacKay found that Oberlander had served as an interpreter for Einsatzkommando 10a, a unit involved in war crimes during World War II - This was a final and non-reviewable decision - In response, the Minister of Citizenship and Immigration submitted a report to the Governor in Council (GIC) recommending revocation of Oberlander's Canadian citizenship - The GIC revoked his citizenship - After a partially successful judicial review on appeal, the matter was remitted to the GIC to consider the issue of duress - The GIC revoked Oberlander's citizenship - Oberlander applied for judicial review - Following the filing of argument and before the scheduling of the hearing for this application, the Supreme Court of Canada released its decision in Ezokola, that fundamentally altered the law on complicity for international crimes in the context of an immigration matter - Oberlander claimed that the decision in Ezokola had a direct bearing on the GIC finding in this application that he was complicit in war crimes and crimes against humanity - Therefore, he asserted that the GIC decision had to be set aside because it did not comply with the requirements for complicity as established in Ezokola - The respondent raised res judicata (issue estoppel) - The Federal Court held that issue estoppel applied - The Federal Court of Appeal had explicitly upheld the Federal Court's decision that the GIC's determination on the issue of complicity was reasonable, and had remitted the decision on the sole issue of duress - The Court of Appeal decision was a final decision regarding the parties' substantive rights and obligations regarding complicity - Complicity was not a pending matter to be determined by the GIC - See paragraphs 95 to 103.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - The Federal Court stated that "In light of the Supreme Court's emphasis in Danyluk [2001] and Régie des rentes du Québec [2013], ... on the importance of the finality of judicial decisions, and the guidance in Danyluk that the discretion to not apply res judicata is very limited in relation to court judgments, it seems unlikely that a simple change of law alone could constitute a sufficient basis for special circumstances, even if the prior decision was clearly wrong. ... the provincial courts have relaxed res judicata much more readily and more liberally than the Federal Courts and the Supreme Court of Canada ... . In my view, the overarching consideration in deciding whether or not to exercise the discretion is whether it is in the interests of justice to do so, and this is not limited to whether there has been a change in law: 'As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether the application of issue estoppel in the particular case would work an injustice: (Danyluk, ...). ... [T]hese guidelines by no means provide a comprehensive or totally coherent set of principles with which to address the present situation. It seems to me, however, that there is a strong societal interest in preserving a final decision on the merits, and that this interest can only be outweighed in rare cases where the interests of justice require re-litigation." - See paragraphs 108 to 110.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Oberlander was found to have obtained his citizenship by false representation or by knowingly concealing material circumstances within the meaning of s. 18(1) of the Citizenship Act - Justice MacKay found that Oberlander had served as an interpreter for Einsatzkommando 10a, a unit involved in war crimes during World War II - This was a final and non-reviewable decision - In response, the Minister of Citizenship and Immigration submitted a report to the Governor in Council (GIC) recommending revocation of Oberlander's Canadian citizenship - The GIC revoked his citizenship - After a partially successful judicial review on appeal, the matter was remitted to the GIC to consider the issue of duress - The GIC revoked Oberlander's citizenship - Oberlander applied for judicial review - Following the filing of argument and before the scheduling of the hearing for this application, the Supreme Court of Canada released its decision in Ezokola, which fundamentally altered the law on complicity for international crimes in the context of an immigration matter - Oberlander asserted that the GIC decision had to be set aside because it did not comply with the complicity requirements as established in Ezokola - The respondent raised res judicata (issue estoppel) - The Federal Court held that issue estoppel applied - Further, the court declined to exercise its residual discretion not to apply the doctrine - No injustice arose where Oberlander had had the opportunity to question and to try to overturn the law on complicity, but chose not to avail himself of that opportunity at an earlier stage in the proceedings - Oberlander could have sought leave to take his case on complicity to the Supreme Court of Canada - In addition, he had not established that the decision finding him complicit was "clearly wrong." - See paragraphs 104 to 113.

Evidence - Topic 1764

Hearsay rule - Exceptions and exclusions - Admissions - Media articles (incl. newspapers, magazines, etc.) - The Federal Court reviewed jurisprudence regarding the weight to be given to newspaper articles - See paragraphs 134 to 154.

Cases Noticed:

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390; 89 D.L.R.(4th) 173 (F.C.A.), appld. [para. 11].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241; 1994 CanLII 129, refd to. [para. 12].

Equizabal v. Minister of Employment and Immigration, [1994] 3 F.C. 514; 170 N.R. 329; 1994 CanLII 3498 (F.C.A.), refd to. [para. 13].

Caballero v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 291; 1996 CanLII 3893 (T.D.), refd to. [para. 14].

Nagalingam v. Canada (Minister of Citizenship and Immigration) et al., [2009] 2 F.C.R. 52; 377 N.R. 151; 2008 FCA 153, refd to. [para. 18].

R. v. Ruzic (M.), [2001] 1 S.C.R. 687; 268 N.R. 1; 145 O.A.C. 235; 2001 SCC 24, refd to. [para. 19].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161; 1995 CanLII 110, refd to. [para. 19].

Valle Lopes v. Canada (Citizenship and Immigration) - see Lopes v. Canada (Minister of Citizenship and Immigration).

Lopes v. Canada (Minister of Citizenship and Immigration) (2010), 367 F.T.R. 41; 2010 FC 403, consd. [para. 24].

Ezokola v. Canada (Minister of Citizenship and Immigration), [2013] 2 S.C.R. 678; 447 N.R. 254; 2013 SCC 40, consd. [para. 26].

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. 27].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 27].

Oberlander v. Canada (Attorney General) (2003), 238 F.T.R. 35; 2003 FC 944, refd to. [para. 28].

Oberlander v . Canada (Attorney General) (2008), 336 F.T.R. 179; 2008 FC 1200, refd to. [para. 28].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 30].

Exeter v. Canada (Attorney General) (2014), 465 N.R. 346; 2014 FCA 251, refd to. [para. 30].

League for Human Rights of B'Nai Brith Canada v. Odynsky - see League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al.

League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al. (2010), 409 N.R. 298; 2010 FCA 307, refd to. [para. 31].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 33].

R. v. Ryan (N.P.), [2013] 1 S.C.R. 14; 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 2013 SCC 3, refd to. [para. 36].

R. v. Arsenault (G.) (2009), 354 N.B.R.(2d) 200; 913 A.P.R. 200; 2009 NBPC 44, refd to. [para. 37].

Nagamany v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 980; 2005 FC 1554, refd to. [para. 40].

Canada (Minister of Citizenship and Immigration) v. Asghedom (2001), 210 F.T.R. 294; 2001 FCT 972, refd to. [para. 44].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 1999 CanLII 699, refd to. [para. 49].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 49].

Canada (Minister of Citizenship and Immigration) v. Bhagwandass - see Bhagwandass v. Canada (Minister of Citizenship and Immigration).

Bhagwandass v. Canada (Minister of Citizenship and Immigration) (2001), 268 N.R. 337; 2001 FCA 49, refd to. [para. 49].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 1985 CanLII 65, refd to. [para. 51].

Belalcazar v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 395 F.T.R. 291; 2011 FC 1013, refd to. [para. 53].

Jimenez v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 606; 2012 FC 1231, refd to. [para. 53].

Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493; 140 F.T.R. 183; 1997 CanLII 6392 (T.D.), refd to. [para. 62].

Canada (Minister of Citizenship and Immigration) v. Oberlander, [1997] F.T.R. Uned. 762; 155 D.L.R.(4th) 481 (T.D.), refd to. [para. 62].

Arica v. Canada (Solicitor General) (2005), 276 F.T.R. 124; 2005 FC 907, refd to. [para. 63].

Boshra v. Canadian Association of Professional Employees (2011), 415 N.R. 77; 2011 FCA 98, refd to. [para. 66].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 67].

Lupsa v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 203; 159 A.C.W.S.(3d) 419; 2007 FC 311, refd to. [para. 67].

Ventura v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 579; 2010 FC 871, refd to. [para. 68].

Ferguson v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 750; 2008 FC 1067, refd to. [para. 68].

I.I. v. Canada (Minister of Citizenship and Immigration) et al., [2009] F.T.R. Uned. 545; 2009 FC 892, refd to. [para. 68].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51; 1985 CanLII 1, dist. [para. 70].

R. v. Weir (D.T.) (1999), 250 A.R. 73; 213 W.A.C. 73; 140 C.C.C.(3d) 441; 1999 ABCA 275, refd to. [para. 70].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, appld. [para. 79].

Régie des rentes du Québec v. Canada Bread Co. et al., [2013] 3 S.C.R. 125; 448 N.R. 36; 2013 SCC 46, dist. [para. 80].

R. v. Sarson (J.A.), [1996] 2 S.C.R. 223; 197 N.R. 125; 91 O.A.C. 124; 1996 CanLII 200, refd to. [para. 82].

R. v. Thomas, [1990] 1 S.C.R. 713; 108 N.R. 147, refd to. [para. 82].

Metro Can Construction Ltd. v. Minister of National Revenue (2001), 273 N.R. 273; 2001 FCA 227, refd to. [para. 82].

Giles et al. v. Westminster Savings Credit Union et al. (2010), 287 B.C.A.C. 281; 485 W.A.C. 281; 2010 BCCA 282, refd to. [para. 83].

Apotex Inc. v. Merck & Co. et al. (2002), 291 N.R. 96; 2002 FCA 210, consd. [para. 83].

Sanofi-Aventis Canada Inc. v. Pharmascience Inc. et al. (2007), 329 F.T.R. 1; 2007 FC 1057, affd. [2008] N.R. Uned. 182; 2008 FCA 213, refd to. [para. 84].

Smith Estate et al. v. National Money Mart Co. et al. (2008), 243 O.A.C. 173; 2008 ONCA 746, refd to. [para. 84].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, consd. [para. 105].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321; 1999 CanLII 3686 (C.A.), refd to. [para. 106].

Hernandez v. Canada (Minister of Citizenship and Immigration) et al., [2006] 1 F.C.R. 3; 271 F.T.R. 257; 2005 FC 429, refd to. [para. 120].

Al Yamani v. Canada (Solicitor General) et al., [1996] 1 F.C. 174; 1995 CanLII 3553; 103 F.T.R. 105 (T.D.), refd to. [para. 120].

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 131].

Pehtereva v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 200 (T.D.), refd to. [para. 140].

Singh v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 402; 2008 FC 494, refd to. [para. 141].

Myle v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 714; 2007 FC 1073, refd to. [para. 142].

Bermudez v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 448; 2007 FC 681, refd to. [para. 143].

Agastra v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 328; 2006 FC 548, refd to. [para. 144].

Liban v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A43; 2008 FC 1252, refd to. [para. 183].

Zokai v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 688; 2005 FC 1103, refd to. [para. 183].

Carrillo v. Canada (Minister of Citizenship and Immigration) - see Flores Carrillo v. Canada (Minister of Citizenship and Immigration).

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 184].

Vandifar v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 802; 2012 FC 433, refd to. [para. 185].

Ozomma v. Canada (Minister of Citizenship and Immigration) et al. (2012), 419 F.T.R. 218; 2012 FC 1167, refd to. [para. 185].

Gao v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 16; 2014 FC 59, refd to. [para. 188].

Bicuku v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 144; 2014 FC 339, appld. [para. 195].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 230].

Counsel:

Ronald Poulton and Barbara Jackman, for the applicant;

Catherine Vasilaros and Jeannine Plamondon, for the respondent;

Solicitors of Record:

Poulton Law Office Professional Corporation, Toronto, Ontario, for applicant;

Jackman Nazami & Associates, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on February 18, 2014, by Russell, J., of the Federal Court, who delivered the following decision on January 13, 2015.