Canada (Citizenship and Immigration) v. Zakaria

Canada (Citizenship and Immigration) v. Zakaria
Court (s) Database
Federal Court Decisions
Date
2014-09-10
Neutral citation
2014 FC 864
File numbers
T-1104-13
Decision Content
Date: 20140910
Docket: T-1104-13
Citation: 2014 FC 864
Ottawa, Ontario, September 10, 2014
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
WALID ZAKARIA, RIM SAWAF, SAMI ZAKARIA, KARIM ZAKARIA
Defendants
ORDER AND REASONS
[1] This is a motion for summary judgment brought by the Defendants pursuant to Rules 213 and 215 of the Federal Courts Rules, SOR/98-106 (Rules), seeking an order dismissing the citizenship revocation action against two of the Defendants, Sami and Karim Zakaria.
Factual Background [2] The Defendants Walid Zakaria and Rim Sawaf, both born in Syria, are the parents of the Defendants Sami and Karim Zakaria. Sami Zakaria was born in the United States on December 15, 1989. Karim Zakaria was born in Jordan on June 23, 1992.
[3] The Defendants acquired permanent residence status and were landed in Canada on December 12, 1999. At that time, Sami Zakaria was 9 years old and Karim Zakaria was 7 years old.
[4] On October 17, 2006 Walid Zakaria signed an application for Canadian citizenship. He completed a residence questionnaire on October 11, 2007. A citizenship judge approved his application without his personal appearance on April 28, 2008 and he was granted citizenship on the same day. He took the oath of citizenship on May 23, 2008 and obtained Canadian citizenship.
[5] Rim Sawaf signed her application for citizenship on February 23, 2004. Her application was approved without her personal appearance by a citizenship judge on March 3, 2005. She took the oath and was granted citizenship on the same day. Concurrent with her own citizenship application, Rim Sawaf also made applications for citizenship on behalf of each of her sons pursuant to subsection 5(2)(a) of the Citizenship Act, RSC 1985, c C-29 (Citizenship Act).
[6] At that time Sami Zakaria was fourteen years old. Therefore, pursuant to subsection 4(1)(a) of the Citizenship Regulations, SOR/93-246 (Citizenship Regulations), his mother made his citizenship application as he was under eighteen years of age and, therefore, defined as a minor under section 2 of the Citizenship Act. However, because he was fourteen years old on or before the date of the application, subsection 4(1)(b) required him to countersign the citizenship application, which he did. He also took and signed the oath of citizenship and became a Canadian citizen on May 9, 2005 (Citizenship Regulations, sections 20(1) and 21). Karim Zakaria was eleven years old at that time and, being under fourteen years of age, his mother completed and signed the citizenship application on his behalf. As he was too young to take the oath of citizenship, his mother also signed the oath on his behalf.
[7] On August 23, 2011, the Plaintiff caused a Notice in Respect of Revocation of Citizenship to be served on the Defendants. This set out the intent of the Minister of Citizenship and Immigration (Minister) to make a report to the Governor in Council pursuant to section 10 of the Citizenship Act. It also stated that if the Governor in Council, upon review of that report, was satisfied that they had obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, that this would result in the revocation of their citizenship. On September 12, 2011, the Defendants requested that the matter be referred to this Court pursuant to subsection 18(1) of the Citizenship Act.
[8] Accordingly, by Statement of Claim dated June 21, 2013 the Minister commenced this action. The Statement of Claim alleges, and seeks a declaration pursuant to section 18(1)(b) of the Citizenship Act, that all of the Defendants obtained their citizenship by making false representations or fraud or by knowingly concealing material circumstances as set out in section 10(1) of the Act.
[9] More specifically, it alleges that Walid Zakaria obtained his citizenship by making false representations and knowingly concealing material circumstances about his employment, his addresses in Canada, his absences from Canada, and about receiving assistance from a third party to complete his application for Canadian citizenship.
[10] Further, that Rim Sawaf obtained her citizenship by making false representations and knowingly concealing material circumstances about receiving assistance from a third party to complete her application for citizenship.
[11] The Statement of Claim does not make any allegations that Sami or Karim Zakaria made false representations or knowingly concealed material circumstances. Rather, it alleges that section 12 of their applications for citizenship, which required that any individual, firm or organization who assisted in the completion of the application be identified, was left blank. However, that documentation indicating that Rim Sawaf used the services of an immigration consultant and its employees “to fill and send” Sami and Karim’s citizenship applications had been seized at the consultant’s offices in February 2007. The Statement of Claim alleges that Rim Sawaf made false representations and knowingly concealed material circumstances about receiving assistance from a third party, an immigration consulting firm, to complete Sami and Karim Zakaria’s applications for citizenship.
[12] A Statement of Defence was filed on behalf of the Defendants on October 22, 2013. Amongst other things, it states that the only allegation of the Plaintiff against Rim Sawaf is that she failed to declare that she used the services of an immigration firm in completing her application for citizenship. The Statement of Defence also asserts that the Plaintiff has not pleaded any facts suggesting that either Sami or Karim Zakaria made false representations or knowingly concealed material circumstances related to their applications for citizenship. The Statement of Defence contains the admission of Rim Sawaf that she used the services of an immigration consulting firm in completing her application for citizenship, but asserts that failing to disclose this does not constitute false representation or knowingly concealing material circumstances for the purposes of citizenship revocation. It also contains the admission by Sami and Karim Zakaria that they were granted citizenship based on information provided by their mother. However, it denies that they had any knowledge of the content of their parents’ applications and states that they, personally, did not make or have knowledge of any false representation or knowingly conceal any material circumstances in relation to their applications for citizenship.
[13] The Defendants brought this motion for summary judgment to dismiss the action against the Defendants Sami and Karim Zakaria on the grounds that there is no genuine issue for trial with respect to them. They argue that the Plaintiff has not raised any allegations against them which could ground a finding under section 18 of the Citizenship Act.
Legislative Background [14] In this application, the relevant sections of the Rules are as follows:
Motion and Service
213. (1) A party may bring a motion for summary judgment or summary trial on all or some of the issues raised in the pleadings at any time after the defendant has filed a defence but before the time and place for trial have been fixed.
[…]
Requête et signification
213. (1) Une partie peut présenter une requête en jugement sommaire ou en procès sommaire à l’égard de toutes ou d’une partie des questions que soulèvent les actes de procédure. Le cas échéant, elle la présente après le dépôt de la défense du défendeur et avant que les heure, date et lieu de l’instruction soient fixés.
[…]
Facts and evidence required
214. A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial.
Faits et éléments de preuve nécessaires
214. La réponse à une requête en jugement sommaire ne peut être fondée sur un élément qui pourrait être produit ultérieurement en preuve dans l’instance. Elle doit énoncer les faits précis et produire les éléments de preuve démontrant l’existence d’une véritable question litigieuse.
If no genuine issue for trial
215. (1) If on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
Absence de véritable question litigieuse
215. (1) Si, par suite d’une requête en jugement sommaire, la Cour est convaincue qu’il n’existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
Genuine issue of amount or question of law
(2) If the Court is satisfied that the only genuine issue is
(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
Somme d’argent ou point de droit
(2) Si la Cour est convaincue que la seule véritable question litigieuse est :
a) la somme à laquelle le requérant a droit, elle peut ordonner l’instruction de cette question ou rendre un jugement sommaire assorti d’un renvoi pour détermination de la somme conformément à la règle 153;
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
Powers of Court
(3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may
(a) nevertheless determine that issue by way of summary trial and make any order necessary for the conduct of the summary trial; or
(b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding.
Pouvoirs de la Cour
(3) Si la Cour est convaincue qu’il existe une véritable question de fait ou de droit litigieuse à l’égard d’une déclaration ou d’une défense, elle peut :
a) néanmoins trancher cette question par voie de procès sommaire et rendre toute ordonnance nécessaire pour le déroulement de ce procès;
b) rejeter la requête en tout ou en partie et ordonner que l’action ou toute question litigieuse non tranchée par jugement sommaire soit instruite ou que l’action se poursuive à titre d’instance à gestion spéciale.
[15] The relevant sections of the Citizenship Act are:
Definitions
2. (1) In this Act,
[…]
Définitions
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
“minor”
“minor” means a person who has not attained the age of eighteen years;
[…]
« mineur »
« mineur » Personne de moins de dix-huit ans.
[…]
Grant of citizenship
5. (1) The Minister shall grant citizenship to any person who
[…]
(b) is eighteen years of age or over;
[…]
Attribution de la citoyenneté
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[…]
b) est âgée d’au moins dix-huit ans;
[…]
Grant of citizenship
(2) The Minister shall grant citizenship to any person who is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and is the minor child of a citizen if an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child.
Attribution de la citoyenneté
(2) Le ministre attribue en outre la citoyenneté, sur demande qui lui est présentée par la personne autorisée par règlement à représenter celui-ci, à l’enfant mineur d’un citoyen qui est résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés.
Order in cases of fraud
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
Décret en cas de fraude
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu’il est convaincu, sur rapport du ministre, que l’acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l’intéressé, à compter de la date qui y est fixée :
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
Presumption
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
Présomption
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l’a acquise à raison d’une admission légale au Canada à titre de résident permanent obtenue par l’un de ces trois moyens.
Notice to person in respect of revocation
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
Avis préalable à l’annulation
18. (1) Le ministre ne peut procéder à l’établissement du rapport mentionné à l’article 10 sans avoir auparavant avisé l’intéressé de son intention en ce sens et sans que l’une ou l’autre des conditions suivantes ne se soit réalisée :
a) l’intéressé n’a pas, dans les trente jours suivant la date d’expédition de l’avis, demandé le renvoi de l’affaire devant la Cour;
b) la Cour, saisie de l’affaire, a décidé qu’il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
Nature of notice
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
Nature de l’avis
(2) L’avis prévu au paragraphe (1) doit spécifier la faculté qu’a l’intéressé, dans les trente jours suivant sa date d’expédition, de demander au ministre le renvoi de l’affaire devant la Cour. La communication de l’avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l’intéressé.
Decision final
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
Caractère définitif de la décision
(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d’appel.
[16] The relevant sections of the Citizenship Regulations are as follows:
4. (1) An application made under subsection 5(2) of the Act on behalf of a minor child shall be
(a) made to the Minister in prescribed form by either parent, by a legal or de facto guardian or by any other person having custody of the minor child, whether by virtue of an order of a court of competent jurisdiction, a written agreement or the operation of law;
(b) countersigned by the minor child, if the child has attained the age of 14 years on or before the date of the application and is not prevented from understanding the significance of the application because of a mental disability; and
(c) filed, together with the materials described in subsection (2), with
(i) the Registrar, if the application is made in Canada, or
(ii) a foreign service officer, if the application is made outside Canada.
4. (1) La demande présentée au nom d’un enfant mineur au titre du paragraphe 5(2) de la Loi doit :
a) être faite à l’intention du ministre, selon la formule prescrite, par un parent, un tuteur légal ou de fait ou une autre personne ayant la garde de l’enfant mineur, que ce soit en vertu d’une ordonnance émanant d’un tribunal compétent, d’une entente écrite ou par l’effet de la loi;
b) être contresignée par l’enfant mineur, s’il a 14 ans révolus à la date de la présentation de la demande et s’il n’est pas incapable de saisir la portée de la demande en raison d’une déficience mentale;
c) être déposée, accompagnée des documents visés au paragraphe (2) :
(i) auprès du greffier, si la demande est faite au Canada,
(ii) auprès de l’agent du service extérieur, si la demande est faite à l’étranger.
(2) For the purposes of paragraph (1)(c), the materials required by this section are
(a) a birth certificate or other evidence that establishes the date and place of birth of the minor child;
(b) evidence that establishes that the minor child is the child of a citizen;
[…]
(e) evidence that establishes that the minor child is prevented from understanding the significance of the application because of a mental disability, if the child has attained the age of 14 years on or before the date of the application and has not countersigned it; and
[…]
(2) Pour l’application de l’alinéa (1)c), les documents d’accompagnement sont les suivants :
a) le certificat de naissance ou autre preuve établissant la date et le lieu de naissance de l’enfant mineur;
b) une preuve établissant que l’enfant mineur est l’enfant d’un citoyen;
[…]
e) une preuve établissant que l’enfant mineur est incapable de saisir la portée de la demande en raison d’une déficience mentale, s’il a 14 ans révolus à la date de la présentation de la demande et ne l’a pas contresignée;
[…]
Oath of citizenship
19. (1) Subject to subsection 5(3) of the Act and section 22 of these Regulations, a person who has been granted citizenship under subsection 5(1) of the Act shall take the oath of citizenship by swearing or solemnly affirming it before a citizenship judge.
[…]
Serment de citoyenneté
19. (1) Sous réserve du paragraphe 5(3) de la Loi et de l’article 22 du présent règlement, la personne qui s’est vu attribuer la citoyenneté en vertu du paragraphe 5(1) de la Loi doit prêter le serment de citoyenneté par un serment ou une affirmation solennelle faite devant le juge de la citoyenneté.
[…]
20. (1) Subject to subsection 5(3) of the Act and section 22 of these Regulations, a person who is 14 years of age or older on the day on which the person is granted citizenship under subsection 5(2) or (4) or 11(1) of the Act shall take the oath of citizenship by swearing or solemnly affirming it
(a) before a citizenship judge, if the person is in Canada; or
(b) before a foreign service officer, if the person is outside Canada.
[…]
20. (1) Sous réserve du paragraphe 5(3) de la Loi et de l’article 22 du présent règlement, la personne qui a 14 ans révolus à la date à laquelle elle se voit attribuer la citoyenneté en vertu des paragraphes 5(2) ou (4) ou 11(1) de la Loi doit prêter le serment de citoyenneté par un serment ou une affirmation solennelle fait :
a) au Canada, devant le juge de la citoyenneté;
b) à l’étranger, devant l’agent du service extérieur.
[…]
21. Subject to section 22, a person who takes the oath of citizenship pursuant to subsection 19(1) or 20(1) shall, at the time the person takes it, sign a certificate in prescribed form certifying that the person has taken the oath, and the certificate shall be countersigned by the citizenship officer or foreign service officer who administered the oath and forwarded to the Registrar.
21. Sous réserve de l’article 22, la personne qui prête le serment de citoyenneté aux termes des paragraphes 19(1) ou 20(1) doit, au moment de la prestation du serment, signer un certificat selon la formule prescrite pour certifier qu’elle a prêté le serment, et le certificat doit être contresigné par l’agent de la citoyenneté ou l’agent du service extérieur qui a fait prêter le serment et transmis au greffier.
Summary Judgment Defendants’ Position [17] The Defendants submit that summary judgment serves an important purpose by precluding claims that have no chance of success from proceeding to trial and can be granted where a case is so doubtful that it deserves no further consideration by a trier of facts (Canada (Attorney General) v Lameman, 2008 SCC 14 at para 10, [2008] 1 SCR 372 [Lameman]; ITV Technologies Inc v WIC Television Ltd, 2001 FCA 11 at para 4, 199 FTR 319 [ITV Technologies Inc], citing Granville Shipping Co v Pegasus Lines Ltd, [1996] 2d FCR 853 at para 8, 111 FTR 189; Ulextra Inc v Prontao Luce Inc, 2004 FC 590 at para 7, 31 CPR (4th) 339). Summary judgment should be granted where the Court has evidence establishing the relevant facts and where proceeding to trial would add detail but would not add significant additional evidence (Rule 215(3); Pawar v Canada (1998), [1999] 1 FCR 158 at paras 15-16, 56 CPR (2d) 318 (TD); affirmed (1999), 247 NR 271 (FCA); Schneeberger v Canada (Minister of Citizenship and Immigration), 2003 FC 970, [2004] 1 FCR 280 [Schneeberger]. Questions of fact and law can be determined if the record before the Court permits this, however, serious issues of credibility must proceed to trial (Schneeberger, above, at para 17).
[18] Rule 215(2)(b) permits summary judgment when the only genuine issue for trial is a question of law which the Defendants submit is the circumstance in this case. As well, Rule 213 allows a party to bring a motion for summary judgment based on some but not all of the issues. Therefore, in this case, the motion can address the issues raised with respect to only two of the Defendants.
[19] The Defendants argue that this is an appropriate case for summary judgment as the facts in respect of Sami and Karim Zakaria are not in dispute and all of the relevant facts concerning the case against them are before the Court. There is no dispute that their mother submitted their applications on their behalf and they have provided sworn affidavits regarding their knowledge of the citizenship applications. Proceeding to trial would not add any significant additional evidence relevant to the facts with respect to these Defendants.
[20] Alternatively, the question of whether there is a mens rea requirement in citizenship revocation cases is a pure question of law which the Court can decide on summary judgment pursuant to Rule 215(2)(b). The only issue raised by the Statement of Claim is whether Sami and Karim Zakaria can be found to have obtained their citizenship through fraud, misrepresentation or concealment of material circumstances through those acts by their parents of which they had no knowledge. This is a legal question which is dispositive of the actions against them.
Plaintiff’s Position [21] The Plaintiff also sets out various general principles applicable to summary judgment and emphasizes that, despite the importance of this tool, it is also essential to justice that claims disclosing real issues that may succeed proceed to trial (Lameman, above, at paras 10-11). Further, that the Court must be satisfied that there is no genuine issue for trial (Rule 215(1)) and the test is whether the claim is so doubtful that it does not deserve consideration by the trier of fact at a future trial or that the case is clearly without foundation (Premakumaran v Canada, 2006 FCA 213 at para 8, [2007] FCR 191, leave to appeal to SCC refused, 31605 (November 16, 2006)). The parties must put their best foot forward and the Court may draw inferences of fact based on undisputed facts before it (Lameman, above, at para 11), but where questions of credibility arise summary judgment is not appropriate (Suntec Environmental Inc v Trojan Technologies, Inc, 2004 FCA 140 at paras 20-22, 239 DLR (4th) 536; Canada (Minister of Citizenship and Immigration) v Laroche, 2008 FC 528 at paras 10-11).
[22] The Plaintiff submits that this Court has never ruled on the issue of whether or not it is possible to revoke the citizenship of a person who obtained it as a minor child, regardless of whether they had any knowledge of the false representation, fraud or concealment or material circumstances. That issue, and the credibility of Sami and Karim Zakaria’s alleged absence of knowledge, are closely intertwined. Because they are questions of mixed fact and law which turn on findings of fact and credibility, the Plaintiff argues that a motion for summary judgment is not the proper vehicle to bring the matter to the Court’s attention before trial.
[23] Therefore, the Plaintiff submits that there is a genuine issue for trial.
Analysis [24] For the reasons below, it is my view that this matter does not lend itself to disposition by way of summary judgment.
[25] The Supreme Court summarized the principles applicable to summary judgment in Lameman, above:
[10] This appeal is from an application for summary judgment. The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.
[11] For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute or counter the defendant’s evidence, or risk summary dismissal: Murphy Oil Co. v. Predator Corp. (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff’d (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30.
[26] In this situation the undisputed facts are as set out above. They include Rim Sawaf’s admission that she used the services of an immigration consultant in completing her application for citizenship and Sami and Karim Zakaria’s admissions that they were granted citizenship on the basis of the information that their mother provided.
[27] Although the Plaintiff asserts that the Minister has not admitted that Sami and Karim Zakaria did not have knowledge of their mother’s false representation, fraud or knowing concealment of material circumstances and has joined issue on that point, there is affidavit evidence that speaks to this issue. Specifically, in support of the motion for summary judgment, Sami Zakaria and Karim Zakaria each filed affidavits.
[28] The affidavit of Sami Zakaria states, amongst other things, that he was fourteen years old when he became a citizen of Canada. He knew his parents were responsible for making the decisions in their family, including the immigration applications. At that time he did not understand the citizenship application requirements or the process. He had no knowledge of what his parents wrote in the applications and, until the proceeding, he had not seen his parents’ applications. He assumed his parents filled out their applications truthfully and correctly and had no reason to think otherwise.
[29] He deposes that his mother completed the citizenship application on his behalf, told him where to sign and he did so without reviewing the application. He understood that his mother was responsible for providing the information required by Citizenship and Immigration Canada and assumed that if his mother told him to sign the citizenship application then it was the right thing to do. Further, that she would fill out the applications truthfully, correctly and provide all of the relevant information. The first time that he learned that there could be any issue with his family’s citizenship was when he read the Statement of Claim. He never intentionally misled the Government of Canada, withheld information or provided any information which he knew to be false or misleading.
[30] The affidavit of Karim Zakaria states, amongst other things, that he was eleven years old when he became a citizen of Canada. His mother completed the application on his behalf and he did not review or sign it. He had no control over the information that was put in the application and assumed that his mother would fill it out truthfully and correctly. He was too young to take the oath of citizenship and his mother signed it on his behalf. At the time he was a child and had no knowledge of the process or requirements to become a Canadian citizen. His parents were responsible for making decisions about immigration matters and completing the paperwork.
[31] He deposes that he had no knowledge of what his parents wrote in the citizenship applications which he did not see until this proceeding. He assumed that they filled out their applications truthfully and correctly and provided all of the relevant information. He had no reason to think otherwise. The first time that he learned that there could be any issue with his family’s citizenship was when he read the Statement of Claim. He never intentionally misled the Government of Canada, withheld information or provided any information which he knew to be false or misleading.
[32] I note that the Plaintiff elected not to cross examine the deponents on this evidence. Further, the Plaintiff was required to put its best foot forward. This is clear both from Rule 214, which requires that in responding to a motion for summary judgment a party must set out the specific facts and adduce evidence showing that there is a genuine issue for trial, and the jurisprudence (Lameman, above, at para 11; Rude Native Inc v Tyrone T Resto Lounge, 2010 FC 1278 at para 17). Further, where a plaintiff fails to file an affidavit in response to a motion for summary judgment, the Court can infer that the plaintiff is unable to attest to such facts as are required to make out the claim (Wall v Brunell (2000), 7 CPR (4th) 321 at para 4 (FCA); Lameman, above, at para 11).
[33] Accordingly, it can reasonably be inferred and I find that Sami and Karim Zakaria did not know that their mother had not caused the disclosure of the fact that she had used the assistance of an immigration consultant. That allegation is based on the affidavit evidence of Genevieve Cadotte, judicial assistant, Department of Justice, which attaches as an exhibit copies of documents seized from the immigration consulting firm pertaining to the Zakaria family. However, that affidavit does not assert any knowledge of this by Sami or Karim Zakaria. In my view, given the evidence, no serious issues of credibility with respect to Sami and Karim Zakaria arise, which is also a factor in favour of summary judgment.
[34] The Plaintiff submits that because this Court has never ruled on the issue of whether or not it is possible to revoke the citizenship of a person who obtained it as a minor child, regardless of whether they had any knowledge of the false representation, fraud or concealment of material circumstances, the matter should not be determined by summary judgment. In that regard, I note Teva Canada Ltd v Wyeth LLC, 2011 FC 1169, 99 CPR (4th) 398, appeal allowed on other grounds 2012 FCA 141. There, in the context of a motion seeking summary trial, Justice Hughes found that summary disposition is warranted if: the issues are well defined and their resolution will allow the action, or whatever remains of it, to proceed more quickly or be resolved; the facts necessary to resolve the issues are clearly set out in the evidence; the evidence is not controversial and there are no issues as to credibility; and the questions of law, though novel, can be dealt with as easily as they would be after a full trial (at para 34). Further, the Federal Court of Appeal in ITV Technologies Inc, above, at para 3, held that voluminous material and novel questions of law would not be valid grounds for refusing summary judgment.
[35] Accordingly, the novelty of the question before the Court is not a factor that would preclude disposition by way of summary judgment.
[36] However, while these factors favour disposition of this matter by way of summary judgment, ultimately, the Court must decide if there is a genuine issue for trial. The test is not whether a party cannot possibly succeed at trial; rather, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. As such, summary judgment is not restricted to the clearest of cases (Canada (Minister of Citizenship and Immigration) v Campbell, 2014 FC 40 at para 14; ITV Technologies Inc, above, at paras 4-6).
[37] The Supreme Court has recently held, in the context of proportionality and access to justice, that summary judgment rules must be interpreted broadly (Hryniak v Mauldin, 2014 SCC 7 [Hryniak]). There the Court was considering Rule 20, the amended summary judgment rule of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg 194, but noted that while Rule 20 in some ways goes further than other rules throughout the country, the values and principles underlying its interpretation are of general application. Rule 20.04(2)(a) states that summary judgment motions must be granted whenever there is no genuine issue requiring a trial. The Court held that:
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[38] While Ontario Rule 20 differs from Rules 213 to 215 of the Federal Courts Rules, particularly as Rule 215(1) refers to no genuine issue for trial while Ontario Rule 20 refers to no genuine issue requiring trial, in my view this same general analysis would apply.
[39] However, for the reasons set out below, I have concluded that in this case I am unable to make the necessary findings of fact to dispose of the question at issue in this motion for summary judgment. That is, based on the evidence before me, I am unable to determine whether the acts or omissions of Rim Sawaf amounted to false representation or knowingly concealing material circumstances pursuant to section 10 of the Citizenship Act, by which Sami and Karim Zakaria, who were minors at the time they obtained citizenship, obtained citizenship. Thus, there is a genuine issue for trial.
Pure Question of Law Defendants’ Position [40] In the alternative, the Defendants submit that the question of whether there is a mens rea requirement in citizen revocation cases is a pure issue of law that can be decided on summary judgment pursuant to Rule 215(2)(b).
[41] The Defendants submit that there is a mens rea or mental element requirement in citizenship revocations cases. This Court has held that there is a further element of proof required relating to the state of mind of the defendant and that the onus of proof is on the Minister (Canada (Minister of Multiculturalism and Citizenship) v Minhas (1993), 66 FTR 155 at para 8, 21 IMM LR (2d) 31 [Minhas]; Canada (Minister of Citizenship and Immigration) v Odynsky, 2001 FCT 138 at paras 157-159, 196 FTR 1 [Odynsky]).
[42] Further, that a plain reading of sections 10 and 18 of the Citizenship Act also supports the conclusion that they include a mental element. The adverb “knowingly” modifies concealing “material circumstances” and fraud has always been understood to include the concept of a knowing deception as demonstrated by civil law (McEwing v Canada (Attorney General), 2013 FC 525 at para 63, [2013] 4 FCR 63 [McEwing]) and the interpretation of other statutes (Samatar v Canada (Attorney General), 2012 FC 1263 at para 53, 420 FTR 182 [Samatar]).
[43] The Defendants also submit that the use of the word “knowingly” in sections 10 and 18 of the Citizenship Act distinguishes those provisions from the misrepresentation provision found in section 40 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). Section 40 speaks only of misrepresentation and does not refer to fraud or to knowing concealment of material facts. As a result, jurisprudence has interpreted it such that even an innocent failure to provide material information can result in a finding of inadmissibility (Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15). This difference signals Parliament’s intent to take a different approach to misrepresentation in the citizenship revocation context by incorporating a mental element.
[44] Further, this Court has recognized that the evidence must be scrutinized with care because of the serious nature of citizenship revocation (Schneeberger, above, at para 25). Similarly, as the consequence is severe, it should not be imposed on those who are innocent (Reference Re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 SCR 486 at 513, 24 DLR (4th) 536).
[45] In these factual circumstances the Plaintiff cannot establish the requisite state of mind for Sami and Karim Zakaria as they had no knowledge of any alleged fraud, misrepresentation or concealment of material circumstances. Further, the Statement of Claim does not allege that they themselves committed fraud or misrepresentation.
Plaintiff’s Position [46] The Plaintiff submits that section 10 of the Citizenship Act allows for the revocation of citizenship of a minor irrespective of whether someone else made the misrepresentation which resulted in the minor being granted citizenship, or, whether the person who made the misrepresentation or the person who was granted citizenship had the intent to deceive.
[47] This is because the proper construction of sections 10 and 18 shows that in revocation proceedings the focus is not on the person who made t