Pavicevic v. Canada (Attorney General), (2013) 440 F.T.R. 45 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: July 16, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 440 F.T.R. 45 (FC);2013 FC 997

Pavicevic v. Can. (A.G.) (2013), 440 F.T.R. 45 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2013] F.T.R. TBEd. OC.009

Danko Pavicevic (applicant) v. The Attorney General of Canada (respondent)

(T-1419-12; 2013 FC 997; 2013 CF 997)

Indexed As: Pavicevic v. Canada (Attorney General)

Federal Court

Strickland, J.

September 27, 2013.

Summary:

The applicant was born in Canada in 1956. In an April 25, 2012 decision, Passport Canada revoked the applicant's passport. The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen. Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86. The applicant applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 24

Abuse of process - What constitutes - [See Administrative Law - Topic 2293 ].

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - [See Administrative Law - Topic 2293 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - He submitted that the process followed by Passport Canada in revoking and refusing to issue a passport denied him procedural fairness - The Federal Court rejected the argument - The applicant was clearly advised of the reason for the revocation of his passport and was provided with and utilized an opportunity to respond to the decision - Further, the applicant had known of the existence of this issue since September 2007 - He took no steps to address the question of his father's status prior to the revocation of his passport - Even in his response to the decision, he did not provide any documentation to support his assertion that his father did not hold diplomatic status - More significantly, in his affidavit filed in support of the judicial review the applicant in essence acknowledged that at the time of his birth his father was an employee in Canada of a foreign government - The result was that the s. 3(2)(a) Citizenship Act exception applied to him - Accordingly, even if he had been denied procedural fairness, it would have had no impact on the ultimate outcome of this matter - See paragraphs 48 to 62.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - The Federal Court held that there was no basis for the applicant's claim that he could rely on a legitimate expectation that he would receive a Canadian passport - The doctrine of legitimate expectations could not lead to substantive rights outside the procedural domain - See paragraphs 63 to 69.

Administrative Law - Topic 2293

Natural justice - Unfairness - Abuse of power or abuse of process - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - The Federal Court held that the delay in revoking the applicant's passport did not amount to an abuse of process - The applicant knew that Citizenship and Immigration Canada had determined that he was precluded from Canadian citizenship as a result of s. 5(3) of the Citizenship Act since September 2007 when his son was denied citizenship - Although Passport Canada did not revoke the applicant's passport until April 25, 2012, in the interim the applicant was not deprived of citizenship or the ability to travel to and from Canada or prejudiced in any substantial way - See paragraphs 46 and 47.

Aliens - Topic 2622

Naturalization - Passports - Revocation of - [See Administrative Law - Topic 2266 , Administrative Law - Topic 2267 , Administrative Law - Topic 2293 , Estoppel - Topic 386 and Estoppel - Topic 1394 ].

Aliens - Topic 2622

Naturalization - Passports - Revocation of - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - The applicant submitted that by failing to apply the version of the Citizenship Act that was in force at the time of the applicant's birth, the decision was rendered invalid - The Federal Court rejected the argument - The same exception was in force in s. 5(2) of the 1952 version of the Citizenship Act - Therefore, if the applicant's father held any of the types of positions as described in s. 5(1), the applicant would not acquire citizenship simply by birth on Canadian soil - The applicant acknowledged that his father was employed as a non-diplomat with the Yugoslav embassy as a finance officer with the Ministry of Foreign Affairs at the time of his birth - Thus, even if his father was not a diplomat, he was still an employee of a foreign government attached to or in the service of a foreign diplomatic mission or consulate in Canada and therefore fell within the exception under either versions of the Citizenship Act - See paragraphs 71 to 74.

Aliens - Topic 2622

Naturalization - Passports - Revocation of - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - The applicant submitted that the decision was unreasonable as Passport Canada relied on a deficient evidentiary record - Specifically, he submitted that there was no factual evidence adduced to support Passport Canada's position that his parents held diplomatic status at the time of his birth - Passport Canada relied solely on internal emails and obtained no documentation nor conducted any analysis to verify the status of the applicant's father prior to making the decision - The Federal Court stated that "the role of this Court is not to determine whether the evidence was sufficient proof that the Applicant's father was a foreign diplomat. Rather, the issue before this Court is whether the impugned decision of Passport Canada is supported by the evidence on record and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ... the Decision was reasonable because it is defensible on the basis of the record before Passport Canada and because it is not contradicted by any documentary evidence submitted by the Applicant. Even if this were not the case, the Applicant himself confirmed that his father was an employee of the Yugoslav Embassy at the time of the Applicant's birth. Accordingly, the outcome would be unchanged even if the matter were remitted back to Passport Canada for reconsideration" - See paragraphs 76 to 79.

Aliens - Topic 4106

Practice - Costs - To or against Minister, Crown, Canada, etc. - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - The Federal Court dismissed the application - The applicant submitted that costs on a lump sum basis in the amount of $10,000 were justified and reasonable - The respondent submitted its correspondence purporting to be an offer to settle as well as a Tariff B, Column III Bill of Costs I, in the amount of $2,485.26 - The court stated that "the notion that Passport Canada was in a position to make any form of offer to settle is directly in conflict with its argument that, in the circumstances of this matter, the Passport Order and the Citizenship Act precluded Passport Canada from taking any action other than revoking the Applicant's passport. Indeed, in the 'settlement offer,' counsel for the Respondent states, 'This is not a matter that Passport Canada can rectify for Mr. Pavicevic. Rather it is a matter to be addressed with Citizenship and Immigration Canada ("CIC").' ... In my view, there was no settlement offer, as such, and elevated costs to the Respondent are not warranted. While the Applicant has not been successful, the revocation of his Canadian passport was a very serious matter with serious consequences, particularly as he had made his home in Canada for over 20 years, worked here, paid taxes and was a contributing member of Canadian society. A trial judge's discretion in the allocation of costs must be exercised judicially with regard to the principles and factors enumerated at rule 400(3) of the Rules" - The court awarded a lump sum of $500 in favour of the respondent - See paragraphs 80 to 86.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - The applicant submitted that because Passport Canada had previously issued passports to him, it had therefore decided that the applicant was "entitled to" a Canadian passport - Thus, the same question as between the same parties had previously and finally been decided and Passport Canada was now estopped from refusing to issue the applicant a passport - The Federal Court held that the applicant's submissions on issue estoppel were without merit - Passports were within the authority of the royal prerogative which was exercised by the Governor Council or the Minister in accordance with the Passport Order - Therefore, the requirement that the prior decision be "judicial", as opposed to administrative or legislative, was not met - Moreover, Passport Canada's prior decisions to issue a passport to the applicant were not "final" - All passports expired and any Canadian citizen desiring to continue to hold a valid passport had to apply to have a new passport issued - The mere fact that Passport Canada issued a passport in the past did not give rise to a final decision in the context of the doctrine of issue estoppel - See paragraphs 32 to 36.

Estoppel - Topic 1004

Estoppel in pais (by conduct) - General - Against Crown - [See Estoppel - Topic 1394 ].

Estoppel - Topic 1163

Estoppel in pais (by conduct) - Representation - By conduct - Practice or course of conduct - [See Estoppel - Topic 1394 ].

Estoppel - Topic 1394

Estoppel in pais (by conduct) - Circumstances when doctrine not applicable - To defeat statutory obligation or prohibition or to contravene public policy - The applicant was born in Canada in 1956 - In an April 25, 2012 decision, Passport Canada revoked the applicant's passport - The basis of the decision was that, because at the time of the applicant's birth one of his parents was a foreign diplomat serving in Canada then, pursuant to the Citizenship Act, the applicant was not a Canadian citizen - Passport Canada was therefore required to revoke his passport in accordance with the Canadian Passport Order, SI/81-86 - The applicant applied for judicial review - The applicant argued that by issuing him a passport in the past, Passport Canada led him to believe that he was a Canadian citizen entitled to a passport - In reliance on that representation, the applicant made Canada his home for 20 years - The Federal Court held that promissory estoppel could not be invoked in this case - Passport Canada was obliged to administer the issuance or revocation of passports in accordance with the Passport Order - Promissory estoppel therefore did not arise - When Passport Canada issued the prior passports, it did so based on its mistaken belief that the applicant was a Canadian citizen - The Minister could not be bound by an approval given when conditions prescribed by the law were not met - Therefore, issuing a passport in the past did not create citizenship nor did it bind Passport Canada to issue future passports or preclude it from revoking a passport if the underlying legislative requirements were not met - See paragraphs 37 to 41.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - [See Aliens - Topic 4106 ].

Cases Noticed:

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2002), 224 F.T.R. 53 (T.D.), refd to. [para. 9].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 9].

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. 10].

Canada (Minister of Citizenship and Immigration) v. Parekh (2010), 372 F.T.R. 196; 2010 FC 692, dist. [para. 11].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 11].

Muliadi v. Minister of Employment and Immigration (1986), 66 N.R. 8 (F.C.A.), refd to. [para. 12].

Abdi v. Canada (Attorney General), [2012] F.T.R. Uned. 793; 2012 FC 642, dist. [para. 12].

Hrushka v. Canada (Minister of Foreign Affairs) et al. (2009), 340 F.T.R. 81; 2009 FC 69, refd to. [para. 12].

Kamel v. Canada (Attorney General), [2008] 1 F.C.R. 59; 324 F.T.R. 250; 2008 FC 338, revd. [2009] 4 F.C.R. 449; 388 N.R. 4; 2009 FCA 21, refd to. [para. 12].

Minister of National Revenue v. Inland Industries Ltd., [1974] S.C.R. 514, refd to. [para. 15].

Khadr v. Canada (Attorney General), [2007] 2 F.C.R. 218; 293 F.T.R. 58; 2006 FC 727, refd to. [para. 16].

Al-Ghamdi v. Canada (Minister of Foreign Affairs and International Trade) (2007), 314 F.T.R. 1; 2007 FC 559, refd to. [para. 16].

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. 26].

Villamil v. Canada (Attorney General) (2013), 435 F.T.R. 88; 2013 FC 686, refd to. [para. 27].

Okhionkpanmwonyi v. Canada (Attorney General), [2011] F.T.R. Uned. 685; 2011 FC 1129, refd to. [para. 27].

Sathasivam et al. v. Canada (Attorney General) (2013), 431 F.T.R. 261; 2013 FC 419, refd to. [para. 27].

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; 2002 SCC 11, refd to. [para. 28].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Productions Tooncan (XIII) Inc. v. Canada (Minister of Canadian Heritage) (2011), 404 F.T.R. 19; 2011 FC 1520, refd to. [para. 29].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 29].

Rahman v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 232; 2006 FC 1321, refd to. [para. 29].

Acevedo et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 93; 2010 FC 167, refd to. [para. 29].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 31].

Apotex Inc. v. Merck & Co. et al. (2002), 291 N.R. 96; 2002 FCA 210, refd to. [para. 32].

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, refd to. [para. 32].

Canada, Transport Canada, Little and Bell v. Canadian Air Traffic Control Association, [1984] 1 F.C. 1081; 52 N.R. 196 (F.C.A.), refd to. [para. 37].

Solis v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 362 (F.C.A.), refd to. [para. 41].

Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72; 280 N.R. 201; 2002 SCC 2, refd to. [para. 55].

Nagulathas v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 584; 2012 FC 1159, refd to. [para. 56].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 63].

Lee v. Canada (Minister of Citizenship and Immigration) (2008), 329 F.T.R. 135; 2008 FC 614, consd. [para. 66].

Illinois Tool Works Inc. et al. v. Cobra Anchors Co. (2003), 312 N.R. 184; 2003 FCA 358, refd to. [para. 86].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 3(1)(a) [para. 21]; sect. 3(2) [para. 22].

Citizenship Act, R.S.C. 1952, c. 33, sect. 5 [para. 72].

Counsel:

Matthew Jeffery, for the applicant;

Abigail Browne, for the respondent.

Solicitors of Record:

Matthey Jeffery, Toronto, Ontario, for the applicant;

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

This application was heard on July 16, 2013, at Toronto, Ontario, before Strickland, J., of the Federal Court, who delivered the following judgment on September 27, 2013.