Canada (Minister of Citizenship and Immigration) v. Seifert

Canada (Minister of Citizenship and Immigration) v. Seifert
Court (s) Database
Federal Court Decisions
Date
2002-08-13
Neutral citation
2002 FCT 859
File numbers
T-2016-01
Notes
Reported Decision
Decision Content
Federal Court Reports Canada (Minister of Citizenship and Immigration) v. Seifert (T.D.) [2003] 2 F.C. 83
Date: 20020813
Docket: T-2016-01
Neutral citation: 2002 FCT 859
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
MICHAEL SEIFERT
Defendant
REASONS FOR ORDER
HARGRAVE P.
On 23 August 2001, pursuant to section 18(1) of Citizenship Act, R.S.C. 1985, c. C-29, as amended (the "Act"), the Minister of Citizenship and Immigration (the "Minister"), the Plaintiff, signed a notice of an intention to revoke the citizenship of the Defendant, Mr Seifert. The Defendant apparently then made a request pursuant to section 18(2) of the Act, that the Minister refer the matter to the Federal Court.
[2] In this action the Federal Court is asked to determine whether the Defendant was admitted to Canada on the basis of false representation, fraud or knowing concealment of material circumstances.
[3] The motion underlying these reasons arises out of the Defendant's counterclaim. The Plaintiff asks that it be struck out for various of the reasons set out in Federal Court Rule 221, including want of a reasonable cause of action in the counterclaim, immateriality, scandalous, frivolous or vexatious content, prejudice or delay of a fair trial and abuse of the process of the Court. In these reasons, I have disregarded the request in the motion for particulars of one of the pleas in the counterclaim. I am satisfied that, well before the filing of the Plaintiff's Amended Written Argument, the requested particulars were received by the Crown.
[4] The counterclaim covers a broad spectrum, including pleas based on the Charter, through misfeasance of public duty and defamation, to bias on the part of the Minister. Some of the arguments submitted by the Plaintiff as a basis for striking out may be dealt with fairly summarily. The more interesting aspect is the plea in the counterclaim of bias on the part of the Minister.
ANALYSIS
Striking Out a Pleading
[5] I will first set out the basic law as to striking out a pleading and will then consider various specific aspects of the counterclaim and any additional applicable law.
[6] At this stage in the proceeding, being a motion to strike out, the Court makes no hard and fast findings of facts. For example, in deciding this motion the Court does not decide the issue of whether or not there was bias. Rather, the Court is to test the various pleas, here pleas in the counterclaim, in order to determine if they have any chance of success. Unless a pleading is so forlorn that it plainly, obviously and beyond doubt cannot succeed, the defendant must have the opportunity for a full hearing, at trial, on that pleading.
[7] The law is well-established as to when a pleading should be struck out, thus depriving a party of a day in court, or of an opportunity to have a plea tested in court. However, it is too easy to overlook the actual stringency and the heavy burden on the moving party which is imposed by the test for striking out. The law on striking out a pleading, pursuant to Rule 221 and to which I will now turn, is not trite: it bears repeating so that the reader and I have the correct principles firmly in mind.
[8] The test with the moving party, here the Plaintiff, must satisfy in order to have a plea struck out has been set out in many cases, including by the Supreme Court of Canada in Canada (Attorney General of Canada) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 35 at 740, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980 and Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 449 and 446 - 447. To summarize these cases, a party should not be driven from the judgment seat if there is a chance that he or she might succeed, notwithstanding either the novelty of the cause of action or the length and complexity of issue. Rather, the pleading must contain a radical defect, to the extent that the moving party can demonstrate it to be plain, obvious and beyond doubt that the pleading must fail for want of cause of action, before a pleading may be struck out. If that is not enough of a burden, the facts which have been pleaded must, for the purposes of a motion based upon want of cause of action, be taken as proven: see for example, Inuit Tapirisat loc.cit. and Operation Dismantle at 449. Rule 221(2) provides that on a motion to strike out for want of a cause of action, under Rule 221(1)(a), affidavit evidence is not to be heard.
[9] The standard for striking out a pleading under the remaining heads of Rule 221 is at least as stringent as that for want of a cause of action: see for example, Waterside Ocean Navigation Co. v. International Navigation Ltd., [1977] 2 F.C. 257 (F.C.T.D.) at 259. I am further guided by the approach taken by Mr. Justice Pratte, as he then was, in Creaghan Estate v. Canada, [1972] F.C. 732 at 736:
(3) Finally, in my view, a statement of claim should not be ordered to be struck out on the ground that it is vexatious, frivolous or an abuse of the process of the Court, for the sole reason that in the opinion of the presiding judge, plaintiff's action should be dismissed. In my opinion, a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding, whoever the judge may be before whom the case could be tried. It is only in such a situation that the plaintiff should be deprived of the opportunity of having "his day in Court".
[10] Among the concepts upon which the Plaintiff relies are frivolousness, vexatiousness and abuse of process. Cases, defining those concepts, are set out in Larden v. Canada (1998), 145 F.T.R. 140 at 150, which I shall paraphrase. A frivolous plea is one so palpably bad that the Court needs no real argument to be convinced of that fact. Indeed, a frivolous plea is indicative of bad faith. Frivolous and vexatious pleas include those brought or carried on by a party who is not acting bona fide. Indeed it is a proceeding which will lead to no practical result.
[11] The concepts of frivolous and vexatiousness define the obviously unsustainable claim: see Attorney-General of Duchy of Lancaster v. London and North Western Railway Co., [1892] 3 Ch. 274 (C.A.) at 277. The frivolous and vexatious pleading includes those which are an abuse of process: Ashmore v. British Coal Corporation, [1990] 2 Q.B. 338 (C.A.) at 347. To sort out the slightly circular definition, an abusive action is that which misuses or perverts the procedures of the court. An abusive action is one which can lead to no possible good, indeed an action in which a party is dragged through long and expensive litigation for no possible benefit: see Willis v. Earl Beauchamp (1886) 11 P.D. 59 at 63 (C.A.).
[12] Finally, if a pleading might possibly succeed if it were amended, such an amendment should be allowed. To deny an amendment, on a motion to strike out a pleading, there must not be as scintilla of a cause of action: for this concept see Kiely v. Canada (1987), 10 F.T.R. 10 at 11 and Larden (supra.)at 149 - 150.
[13] To sum up all of this, a court will not deny a party a day in court so long there is any chance, however small, of the claim succeeding. Here it is for the party challenging the pleading to meet the heavy burden of establishing that it is plain, obvious and beyond doubt that the pleading will not succeed.
Prejudice and Delay Arising Out of Counterclaim
The Plaintiff submits that a counterclaim, as a whole, prejudices and delays the hearing of the Minister's case. Leaving aside that this is an unusual plea, for counterclaims are regular part of litigation, I do not see, given the time that has gone by, that any minor delay attributable to the counterclaim, and here the Plaintiff merely charges delay, without any evidence, is of any consequence, let alone serious enough to call for striking out the Statement of Claim.
[15] As to prejudice, that might only be a ground on which to strike out where the effect of the prejudice could not be compensated for in costs. The Plaintiff fails to elaborate on the prejudice theme. The Plaintiff has not met the heavy burden of showing the whole of the counterclaim ought to be struck out as prejudicial.
Material Facts
[16] The Plaintiff submits that the counterclaim fails to contain a precise statement of material facts upon which the Defendant relies, but rather sets out conclusions of law. I disagree. The counterclaim, taken as a whole, alleges sufficient material facts, in an intelligible form, so as to delineate causes of action which the Plaintiff may understand and answer.
Materiality of Counterclaim
[17] Late in the written argument the Minster submits, in general terms, that the counterclaim is immaterial to the hearing of the Plaintiff's action. Granted, the subject matter of the Crown's action, while potentially massive, reduces to a very narrow point. This has no bearing on the right of a defendant to bring a counter claim, moreover, while counterclaims are stand-alone pleadings, a counterclaim may also raise a valid defence to a claim in an incidental manner. I have in mind, by way of example, a counterclaim for an incidental breach of contract in an action for patent infringement, as was the situation in Titan Linkabit Corp. v. S.E.E. See Electronic Engineering Inc. (1992), 44 C.P.R. (3d) 469.
[18] The authorities offered by the Plaintiff and said to bear on immateriality, substantial cases offered without any specific page references, do not assist the Plaintiff as to immateriality. The concept of immateriality is that of a lack of substantial importance or consequence.
[19] Unfortunately a substantial portion of the Plaintiff's written submissions on striking out depart from the usual tested and accepted format. The submissions do not link specific numbered paragraphs of the counterclaim with specific heads for striking out under Rule 221, but rather take a broad approach. In some instances the linkage made by the Plaintiff is clear, with others less so and some puzzling. For example, paragraphs 7 and 17 fall into this latter category, leaving one wondering as to the nature of the Plaintiff's attack. These two paragraphs allege that certain specific paragraphs of the Statement of Claim are, among other things, prejudicial, scandalous and vexatious and should be struck out. This plea, of course, does not have any effect at this point. Nor would a trial judge, short of a motion, strike out those portions of the Statement of Claim, but rather he or she would make a finding on the merits. However, whatever the Plaintiff's line of attack, the Defendant's plea has relevance: a court will not strike out a pleading, under Rule 221, except for want of a cause of action, where the pleading has been unconditionally responded to by the other side: see for example Procter & Gamble Co. v. Nabisco Brands Ltd., (1985) 5 C.P.R. (3d) 417 (F.C.A.). The sort of reservation which the Defendant makes in paragraphs 7 and 17 of the counterclaim effectively reserves that right to a party, to move to strike out, after he or she has responded to a pleading said to be vexatious, scandalous, prejudicial and the like. Notwithstanding that this sort of reservation is usually set out in a defence, I cannot say it is plain, obvious and beyond doubt that these two paragraphs must fail as a reservation of an opportunity to move to strike out portions of the Statement of Claim at some later date.
[20] In the present instance I am unable to agree with the Plaintiff that the counterclaim is generally and overall immaterial. However, this observation does not mean that portions of the counterclaim may not be struck out for other more tangible reasons.
Sections 7 and 11 of the Charter
[21] The Crown submits that the Court has held that sections 7 and 11 of the Charter are not engaged in citizenship revocation proceedings. While counsel of the Crown refers to a number of cases bearing on section 7 of the Charter, many hundreds of pages in total, the pertinent portions of these authorities are neither specifically delineated in the written argument, nor marked in the cases themselves, as presented in the two large volumes of authorities. This departure from the norm indicates at least a certain degree of casualness which one would not expect on a motion of consequence in an important matter.
[22] The Crown first refers to Canada (MCI) v. Fast (2001), 208 D.L.R. (4th) 729 (F.C.T.D.). There the defendant, against whom the Crown sought revocation of citizenship, sought a stay. In that case, by reason of an inability of Mr Fast, who was suffering from an Alzheimer's type of dementia, to participate meaningfully in the trial, the trial judge would, if the matter were free from authority, have given Mr Fast the benefit of section 7 of the Charter. However, the trial judge felt bound by authority that section 7 of the Charter did not apply to citizenship revocation proceedings in the Federal Court. This inapplicability of section 7 arises because the Court, in a revocation proceeding, apparently does not deprive the defendant of liberty, or security of the person, or of any legal right, but rather decides certain facts to form the basis of a report which might or might not subsequently result in revocation of citizenship and deportation by the Minister. This did not sit well with the judge in Fast, who, in a carefully reasoned opinion would, in the absence of binding authority, have found to the contrary.
[23] A case by which Mr Justice Pelletier felt bound, in deciding Fast, was Canada (MCI) v. Obodzinsky (2000), 199 F.T.R. 1, affirmed by the Federal Court of Appeal (2001), 278 N.R. 182, leave to appeal denied 14 February 2002, in which, in analogous proceedings, a stay based upon section 7 of the Charter was denied, by Mr Justice Nadon, as he then was, at pages 6 and following. To a similar result and effect are Canada (Secretary of State) v Luitjens (1992), 142 N.R. 173 (F.C.A.) at 175, affirmed (1992), 143 N.R. 316 and Canada (MCI) v Katriuk (1999), 156 F.T.R. 161, affirmed by the Federal Court of Appeal (1999), 11 Imm L.R. (3d) 178. In the latter the Federal Court of Appeal touched upon section 7 of the Charter at page 181, leave to appeal dismissed by Supreme Court of Canada (2000), 256 N.R. 199. Counsel for the Plaintiff also refers generally, in written argument, to Canada (MCI) v Tobias, [1997] 3 S.C.R. 391, I assume for the concept, at page 412 and following, that the Federal Court is merely on a fact finding expedition, an expedition which determines no legal rights.
[24] The Defendant's response, to these cases involving section 7 of the Charter is that the challenge by Mr Seifert is to the effect that, while most aspects of citizenship revocation proceedings do not engage section 7 of the Charter, there is a possible circumstance which will engage section 7 of the Charter, namely a challenge of the whole scheme provided for under the Immigration Act for dealing with people in Mr Seifert's situation. Here counsel for Mr Seifert refers to Canada (MCI) v Dueck (1997), 139 F.T.R. 262, a decision of Mr Justice Noël, as he then was. At page 272 and following, Mr Justice Noël acknowledged that a decision under section 18 of the Immigration Act, that is the proceeding which we have in the present instance, is not a final determination of any legal right and, therefore, section 7 of the Charter is not engaged. Mr Justice Noël then went on to refer to Nguyen v Canada (Minister of Employment and Immigration), which is cited in the report of Dueck as 156 N.R. 212, but which, from the material quoted by Mr Justice Noël, should have been cited as (1993), 151 N.R. 69, a decision which Mr Justice Marceau rendered on behalf of the Court of Appeal. A concept borrowed from Nguyen and referred to by Mr Justice Noël, in Dueck, is that while the Charter is not engaged when a notice of revocation reaches a section 18 reference before the Court, section 7 of the Charter might be engaged and relied upon if there is an attack on the legislative scheme as a whole, that is against the whole scheme, under the Immigration Act, dealing with people involved in citizenship revocation proceedings. I will elaborate.
[25] In the correctly cited report of Nguyen v MEI, 151 N.R. 69, the Court of Appeal dealt with a deportation order, the question of whether Mr Nguyen was eligible to have his claim for status determined by the Refugee Division and the engagement of various portions of the Charter, including sections 7 and 15 of the Charter. In Nguyen the Court of Appeal denied that any Charter rights had been violated by a denial of a request by Mr Nguyen to have his claim for refugee status determined by the Refugee Division, on the basis that neither section 7 nor section 15 of the Charter had been violated. Mr Justice Marceau, at page 73, observed that neither of the decisions, that is under section 7 or section 15 of the Charter, was vulnerable to a constitutional attack, but left open whether the whole of the immigration scheme might be denounced, even though its individual parts were acceptable, there referring to Chiarelli v Canada (Minister of Employment), [1992] 1 S.C.R. 711:
[9] Thus, when considered independently of one another, neither of the two decisions made in implementing the impugned scheme is vulnerable to constitutional attack. This conclusion, however, is not determinative. A legislative scheme may be denounced even if its parts are in themselves acceptable. The interaction between the parts may create a completely new context and force a new approach. This, I believe, is the attitude that the Supreme Court adopted in Chiarelli, supra.
[10] In the Chiarelli case, a permanent resident had been ordered deported after having been found to be a person described in section 27 of the Act, and his right to appeal on compassionate grounds under the then paragraph 72(1)(b) of the Act (now paragraph 70(1)(b)) had been removed due to the issuance of a security certificate by the Minister under sections 82.1 and 83 of the Act (now 81 and 82). The Supreme Court, following in that respect the approach of this Court, examined the constitutional challenge as being aimed at the scheme viewed as a whole. The removal of the special right to appeal was perceived as the removal of a means to oppose the deportation order and, as a result, might engage section 7 of the Charter. Similarly in our case, while a determination of ineligibility under subparagraph 46.01(1)(e)(ii) of the Act is only indirectly linked to the deportation order, nevertheless it has the effect of taking away the
only possible barrier to the issuance of an unconditional deportation order, and as such participates in the deprivation of liberty and, possibly, the security of the individual which results from deportation. More generally, the deprivation of liberty involved in any forced deportation is given a new dimension by the fact that the individual to be deported
claims to be a refugee. It is appropriate, therefore, to assume that section 7 of the Charter is brought into play with respect to the scheme as a whole, that is to say with respect not only to the issuance of the deportation order, but also to the ineligibility decision based on the public danger certificate. The question becomes whether the issuance of the public danger certificate, the central feature of the scheme as a whole, could be said to have violated a principle of fundamental justice.
[11] A complete answer to the question requires that two aspects be examined: the substantive aspect, which is concerned with the contents or the substance of the legislative provision, and the procedural aspect, which looks at the manner in which the legislation is in fact implemented. Counsel made lengthy submissions on both aspects. None of these submissions, however, convince me that the legislation or its implementation in this case is constitutionally unacceptable.
The Supreme Court of Canada refused leave to appeal Mr Justice Marceau's decision as noted (1994), 17 Admin L.R. (2d) 67. Thus this concept, that a legislative scheme as a whole may be denounced under the Charter, even though its parts are in themselves acceptable, stands.
[26] Defence counsel is experienced: I may safely conclude that he well knew, when he drafted the counterclaim, that section 7 of the Charter was not engaged by a specific section of the Immigration Act, a section 18 reference to the Court. While Mr Seifert's counterclaim does mount specific challenges by way of section 7 of the Charter, in paragraphs 11, 12, 14 and 22, which are plainly, obviously and beyond doubt futile, the section 7 plea in paragraph 21 of the counterclaim stands on a different footing. In paragraph 21, the Defendant seeks a declaration that the whole of the legislative scheme by which the Minister purports to act is in violation not only of section 7 of the Charter, but also sections 11(b), (c), (d) and 15(1) and (7) of the Charter, a violation which is said not to be saved by section 1 of the Charter. This is a clear plea which is designed to surmount the obvious line of cases limiting the use of section 7 of the Charter, including Obodzinsky, Luitjens, Katriuk and Tobias, all referred to above.
[27] Counsel for the Plaintiff may have overlooked this aspect of the counterclaim in urging that the reference to section 7 of the Charter ought to be struck out as demonstrably bad. Counsel for the Defendant, in his written reply to the motion, clearly threw down the gauntlet: counsel for the Plaintiff failed to respond. Of course, that failure to respond is not necessary an admission that the plea is in fact one on which the Defendant will succeed.
[28] As matters now stands, the concept set out by Mr Justice Marceau in Nguyen (supra), that the whole of the scheme employed may be subject to a challenge under section 7 of the Charter, remains a valid possibility for Mr Seifert. While it may be a difficult argument for Mr Seifert to succeed on, I cannot say that it is plain, obvious and beyond doubt that he will not succeed. The reference to section 7 of the Charter will remain in paragraph 21 of the counterclaim.
[29] I now turn to the pleas in the counterclaim which are based on section 11 of the Charter. Section 11 deals with proceedings in criminal matters, providing rights to "any person charged with an offence". The Plaintiff now puts at issue the application of section 11 to Mr Seifert.
[30] The counterclaim seeks declaratory relief both pursuant to various subheads of section 11 of the Charter, as applied to Mr Seifert and, overall, claims that the entire legislative scheme under which the Minister moved against Mr Seifert and pursuant to which the Court has asked to assume jurisdiction, constitutes a violation of section 11. This gives rise to two separate aspects: first, may Mr Seifert have the protection of individual section bearing on his situation; and second, may he use section 11 as he intends to use section 7, to challenge the overall procedure, including the jurisdiction of the Court, as contrary to section 11 of the Charter. Unfortunately, the Plaintiff's amended argument deals only with the first aspect.
[31] The Crown refers to Canada (MCI) v Dueck (1997), 139 F.T.R. 262, to which I have already referred, being a decision of Mr Justice Noël, for the concept that a revocation proceeding, such as the present, is not punitive in that forfeiture or the removing of the benefit of a fraud is a neutral event of a civil nature:
[39] The forfeiture of the fruits of fraud is not punishment per se. Looked upon on its own, the return of something obtained by fraud or deceit is a purely neutral event. [See Note 23 below] A proceeding, the sole purpose of which is to put an individual in the situation in which he would have been if no fraud had been committed is civil in nature; no retribution is involved.
In footnote 23, referred to in this quotation, Mr Justice Noël acknowledges that the situation on which he bases his view differs from a situation in which forfeiture of the products of crime is an adjunct to a criminal conviction, in which it is treated as part of a sanction. Returning to the view that forfeiture of citizenship is a neutral event, of a civil nature, Mr Justice Noël, on substantial authority, viewed even deportation as not having a punishment aspect: see page 274. In the result he found there to be no penal consequence which invoke section 11 of the Charter. Moreover, Mr Justice Noël found jurisdiction by way of what is now section 169 of the Federal Court Rules, which refers to section 18 of the Citizenship Act. The Dueck case is determinative so far as the references to section 11 of the Charter, in the counterclaim, do not represent an attack on the legislation as a whole. That is, section 11 is not invoked merely by the Court determining whether Mr Seifert obtained his citizenship by false, fraudulent or knowingly conceal material circumstances. Thus, that portion of paragraph 14 of the counterclaim, referring to section 11(c) of the Charter, contains no cause of action of defence and to extent that it refers to section 11, it is struck out, as is all of paragraph 22.
[32] Whether Dueck is determinative as to an attack on the legislative scheme as a whole, employing section 11 of the Charter, is a different matter. Again, while this inclusive approach is clearly pleaded in paragraph 21 of the counterclaim, the Plaintiff has both ignored it in making written submission in support of the Plaintiff's motion and has not responded to the Defendant's written submission on this point.
[33] Mr Justice Noël's comments and the case law to which he refers, at pages 272 and 273 of Dueck (supra) and as commented upon in paragraphs 22 through 26, above, in these Reasons, might possibly allow an attack on the legislative scheme, faced by Mr Seifert, as a whole. Thus it is not plain, obvious, and beyond doubt that paragraph 21 of the counterclaim must fail. Paragraph 21 of the counterclaim shall remain.
Retroactive Effect of the Charter
[34] Without referring to any specific portion of the counterclaim, the Plaintiff takes issue with what is said to be a suggestion that the Charter has a retrospective application. I will use the term retroactive, rather than retrospective, for the reason set out in the third edition of Driedger on The Construction of Statue, third edition, Butterworths 1994, at page 511 and following.
[35] Counsel for the Plaintiff submits, relying upon R. v. James (1986), 27 C.C.C. (3d) 1 (Ont. C.A.), that the Charter cannot be applied to events which occur before the Charter came into effect:
Thus, I would sum up the cases reviewed here as being consistent with a proposition that one applies the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs. Therefore, s. 8 of the Charter cannot be applied to a search or seizure which occurred before the coming into effect of the Charter.
(Page 21)
The Plaintiff relies upon various other authorities in support of this general rule, including R. v. Gamble, [1988] 2 S.C.R. 595 in which the Supreme Court sets out that Charter standards are not applicable to events which occur before the operation of the Charter, however the full quote leads to interesting discussion in the reported case:
Charter standards cannot be applied to events occurring before its proclamation but it would be folly, in my view, to exclude from the Court's consideration crucial pre-Charter history. Indeed, a review of such history will often be necessary when the Court exercises its broad discretion under s. 24(1) to formulate the remedy which is appropriate and just in the circumstances.
(Page 626)
From this point Madam Justice Wilson, who spoke for the three judge majority, acknowledged that a constitutional remedy, to be appropriate and just, might have to take into account events which occurred pre-Charter. Going on, after referring to earlier case law, and principles, she observed:
Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even although such application will of necessity take cognizance of pre-Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition of state of affairs. Pre-trial delay under s. 11(b) is a good example: R. v. Antoine. Section 15 may also fall into this category. Morden J.A. recognized in Re McDonald and The Queen (1985), 21 C.C.C. (3d) 330 (Ont. C.A.) that there was such a thing as a continuing discriminatory practice under s. 15 of the Charter.
(Page 628)
[36] Important here is the concept that while a discreet event may have occurred pre-Charter, there may be an ongoing effect which requires relief under the Charter. Chief Justice Dickson, who wrote the minority reasons, agreed with Madam Justice Wilson, that the court must look at when the event had its effect:
... a court must ask whether the Charter is in force at the time at which the act or event which is alleged to infringe the Charter took place or had its effect.
(Pages 607 - 608)
Here the Chief Justice relied upon R. v. James (supra). However, he then went on to point out that this is not inconsistent with the majority view, that if one were guided by the statement in James, to apply "... the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs ...", the full quote which I have set out above, one still had to fix in time the relevant act. This seems to be the Defendant's position as to the application of the Charter, for counsel submits that "... it is not a retrospective application of the Charter which is being sought, but a present-day application of it to prohibit the effect of a past discriminatory policy being brought to the present day" (page 8 of Brief). This view of counsel for the Defendant is at least parallel to the points made by both Madam Justice Wilson and Chief Justice Dickson, in R. v. Gamble to the effect that one may have to go back to pre-Charter events in order to craft an appropriate remedy and that "... in every case as one still has to fix in time the relevant act." (Gamble at page 608).
[37] Here I must, in order to resolve the conflicting views of counsel, on the one hand, that there "appears" to be a retroactive application of the Charter, and on the other hand, that there is merely a request for a present-day application of the Charter to prohibit the effect of past discriminatory policy being brought into the present day, examine portions of the counterclaim, which for the most part is a carefully worded pleading.
[38] To paraphrase paragraph 8 of the counterclaim, the Defendant admits, for the sake of argument and contrary to its own evidence, that were he born in Ukraine, and says that if that was the basis of the present proceeding against him, such is discrimination and contrary to the Charter. I have some doubt that this is necessarily the appropriate characterisation, however, since the test for want of action, here a counterclaim based on a non-retroactive application of the Charter, is to accept the pleading as drafted and then, in effect, to decide whether it is clearly forlorn, the plea in paragraph 8 does not involve a retroactive application. Thus, paragraph 8 of the counterclaim should remain. Paragraph 13, 14 and 15 are of similar bent, for they alleged, as I read them, a present-day discriminatory policy and process for, as the Defendant submits in paragraph 16 "... the actions of the Minister are an attempt to legally apply in modern post Charter times, policies and decisions which would not pass present constitutional muster...".
[39] While the Charter does not, in most instances, apply retroactively, there are, on the case law, instances in which it may have a retroactive aspect. Thus, the Plaintiff fails to strike out on this basis, for the very high standard has not been met.
Bias
[40] In paragraph 18 of the counterclaim the Defendant claims a reasonable apprehension of bias on the part of the Minister of Citizenship and Immigration acting in an administrative capacity. The paragraph then goes on to give particulars demonstrating the alleged animosity and bias said to be shown in speeches given by the Minister, to a specific constituency. I will in due course refer to the remarks which are said to demonstrate bias. Paragraphs 19 and 20 of the counterclaim then go on to allege that the Minister acted in a malicious manner, "... motivated by oblique political and personal motives of hatred and animosity to the defendant and the associations which, in the Minister's mind, he represents.". The Defendant submits that "... the Minister has a fiduciary duty to all citizen of every ethnic background to act fairly and impartially." and that the reasonable apprehension of bias arising from the Minister's public expressions in public speeches is "... so severe as to bring the administration of justice into disrepute to the minds of a reasonable person informed of the facts.". That all of this is also said to cause the Defendant suffering as to his general reputation and self-esteem and to result in damage. The interesting issue is the effect of bias on this citizenship revocation proceeding.
[41] Counsel for the Plaintiff submits that the various allegations of bias, conflict of interest, breach of fiduciary duty and misfeasance all come under the heading of misfeasance of public duty. Here counsel for the Plaintiff refers to a passage from a trial decision in Canada (MCI) v Obodzinsky (supra) at page 6, to the effect that there is neither abuse of process nor reprehensible conduct on the part of the Minister merely because the Minister initiated proceedings similar to the present proceedings against Mr Seifert. The fact that Mr Obodzinsky's health did not allow him to take part in the proceedings did not amount to unfair conduct or harassment for the Crown did not do anything out of the ordinary:
[17] As far as an abuse of process is concerned, I consider there was no abuse of process in the case at bar. I agree with the plaintiff that the fact that she began the proceeding under s. 18 of the Citizenship Act cannot be regarded as an abuse of process or as reprehensible conduct. The fact of initiating this proceeding does not amount to conducting an unfair or harassing action at law, even if the defendant has health problems. The fact that it was the government which initiated the proceeding does not necessarily make it harassment. The plaintiff did not do anything out of the ordinary that would justify describing her action as reprehensible. The fact that the defendant found himself in an unpleasant situation was due to circumstances beyond her control.
Obodzinsky is not of any assistance to the Plaintiff, for the allegation in the present instance is that the Minister, in fact, did something out of the ordinary, to wit, behaviour indicating, in the view of the Defendant, bias.
[42] Counsel for the Plaintiff refers to Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140. From that citation one learns that discretionary decisions, involving the discharge of public duty require, by implication, good faith and that such administration be accomplished with complete impartiality and integrity or, as put by Linden on Canadian Tort Law, 7th edition, Butterworths, there is "... a clearly established duty to make discretionary decisions in good faith and for no improper purpose." (page 32).
[43] Counsel for the Plaintiff also refers to Chhabra v Canada (MNR) (1989), 89 D.T.C. 5310 (F.C.T.D.) at page 5314 for an example of malice, that of ignoring the legitimate concern of a taxpayer. There Mr Justice Cullen defines misfeasance in public office as an administrative act that is "... unlawful because if it is actuated by malice and where the authority knows that it does not possess power it is purporting to exercise.". This specific passage is of interest, but not particularly helpful, for the test, as set out there by Mr Justice Cullen, seems to be conjunctive, requiring both malice and lack of power. Mr Justice Cullen then goes on to clarify the test: a litigant relying upon malice "must show that the persons involved were acting with malice or intent to injure, or that they were acting without authority.". In Chhabra both elements, malice and lack of power, were present. In the present instance we are concerned only with the first branch of the test, that of malice or of bias.
[44] Mr Justice Wetston, in Francoeur v. Canada (1994), 78 F.T.R. 109 at 126 elaborates on the first approach:
First, if one can show that the public officer acted with malice or an intent to injure, then the act of the public officer which is purported to be undertaken pursuant to a power conferred by statute becomes unlawful and the plaintiff who suffers damages as a direct result of that act will be entitled to damages.
This concept, damages flowing from malicious use of a statutory power has some bearing, taking the statement of claim as drafted, however, the concept of malice is only on point to some degree, for what we are concerned with here, in essence, is an allegation of bias. This is something which the Plaintiff, in the written material, does not touch upon directly. I would first turn to a consideration of what constitutes bias.
[45] As Mr Justice Campbell observed in Beno v Letourneau (1997), 126 F.T.R. 241, reversed on another aspect (1997), 212 N.R. 377, there is little case law defining the term bias. I would add that much of what exists focuses on the definition in terms of bias on the part of those acting in a judicial capacity.
[46] In Beno Mr Justice Campbell looked to the sixth edition of Black's Law Dictionary for a definition of, which is as follows:
Inclination; bent; prepossession; a pre-conceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. To incline to one side. Condition of mind, which sways judgment and renders judge unable to exercise his functions impartially in particular case.
This entry in Black's goes on to touch on the bias of a judge, however, the portion which I have set out above leads to the precise understanding that bias is an inclination to decide an issue, not on its merits, but rather by any other considerations.
[47] To apply this definition of bias I turn to Nfld. Telephone v. Nfld. (Public Utilities Board), [1992] 1 S.C.R. 623, in which the Supreme Court considered a spectrum of levels of bias, spread between the extremes of adjudicators and legislators. Nfld. Telephone was a case involving an administrative board or tribunal, however the basic principles apply in the present case.
[48] In Nfld. Telephone the Supreme Court looked at the functions of the Newfoundland Public Utilities Board and then commented that:
Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal. See Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602. The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the p