Canada (Minister of Citizenship and Immigration) v. Seifert, 2002 FCT 859

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 [1980] 2 S.C.R. 35">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:

[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. (4^th) 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:

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:

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:

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:

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:

[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:

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:

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 [1959] S.C.R. 121">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, 7^th 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:

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:

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:

Here we have an application of the well-know test, that of an apprehension of bias on the part of a reasonable and right-minded person who has thought the matter through, a test derived from [1978] 1 S.C.R. 369">Comm. for Justice and Liberty v. Nat. Energy Board, [1978] 1 S.C.R. 369 at 394:

This formulation, a reasonable apprehension of bias test, is the route to take in the case of a judicial body, or a quasi-judicial body and is at the onerous end of the scale.

[49] In Nfld. Telephone Mr Justice Cory, who delivered the judgment of the Supreme Court, looked also at the less onerous end of the scale, as typified by the situation in Old St. Boniface Residence Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170:

The concept here is that since politicians are elected by reason of their points of view and legislated, rather than adjudicated, the reasonable apprehension of bias test does not apply: such legislators needed only have open minds.

[50] As an illustration of the application of this concept and the low standard expected, Mr Justice Cory referred to Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213, a companion case to Old St. Boniface. In Richmond a councillor, elected on a campaign favouring residential development, said he would not change his mind as to his position. There the Supreme Court held the councillor ought not to be disqualified for bias, for he did not have a completely closed mind and to determine otherwise would distort the democratic process and discourage open expression of views by politicians.

[51] Mr Justice Cory went on to confirm, in Nfld. Telephone, that where the function of a board was political or policy-making, the test was not that of a reasonable apprehension of bias, but rather that of an open mind:

[52] The lower standard, the open mind test, may be applied even to statements made during the investigation stage, but once a hearing date has been set, the standard of the board becomes that of a reasonable apprehension of bias: page 643 of Nfld. Telephone.

[53] Madam Justice Desjardines dealt with a situation which was part way along the continuum, between a reasonable apprehension of bias and an open mind, in Zündel v. Canada (MCI) (1998), 221 N.R. 213 (F.C.A.). There she recognised the difference between boards which were primarily adjudicative and which were expected to comply with the same standard as applied to courts and boards with primarily legislative functions, the members of which were answerable to the test of an open mind, the latter type of boards being generally those composed of popularly elected members who dealt with planning and development. In considering the position of the Security Intelligence Review Committee, which was investigating Mr Zündel, and which had made an earlier report on Mr Zündel, Madam Justice Desjardines decided that the Committee functioned somewhere between the two ends of the scale, the purely adjudicative function and the legislative function. Thus the correct test could not be that of an apprehension of bias held by a reasonable right-minded bystander. She concluded that the standard, in that instance, lay somewhat closer to the open mind end of the spectrum. While I recognise that Zündel is not on point, it illustrates an example of flexibility and the application of a standard which suits the function of the board or tribunal involved.

[54] Returning to the present instance, I am of the view that the standard to be applied to a government minister must be somewhere on the continuum between a reasonable apprehension of bias and an open mind. Here I keep in mind, as pointed out by Mr Justice Cory at page 639 of Nfld. Telephone, that I must take a flexible approach to the standard. I have reached the conclusion that the appropriate standard for the Minister in the present instance is mid-way on the continuum because on the one hand, the Minister is a politician, elected at least in part by reason of her views. On the other hand, the Minister's decision goes beyond the political or that of policy-making, as referred to in Nfld. Telephone at page 637, but rather is a decision which must be judicious, just and even juristic, for that also is to be expected of the Minister of the Crown who is here involved in a decision which will, regardless of the outcome, have serious consequences for Mr Seifert. Here I recognised that all of us have our personal views, but unless they become biases or prejudices, or emotions, which prevent us from the proper exercise of our functions, do not disqualify a person from decision-making. However, I have also kept in mind that all citizens expect that any minister of the Crown will act in a fair and impartial manner.

[55] I now turn to an application of all of this to the facts in the present instance. I have considered what the Minister is alleged to have said. Here I would add that these unfortunate statements, made in the course of three speeches, first, to the Canadian Society for Yad Vashem at Toronto on 8 November 1999, second, to the Canadian Council for Refugees at Niagara Falls on 3 December 1999, and the third, to a group honouring Holocaust survivors at Ottawa on 27 September 2000, are confirmed from print-outs obtained from the website controlled by the Minister. To be fair, each of the speeches is marked "checked against delivery", however the Plaintiff has presented neither evidence nor argument that the Minister has been misquoted.

[56] To the Canadian Society for Yad Vashem the Minister acknowledged that the community represented by the audience was her home and her community. Indeed, she dedicated an award that she was given that day to her family, a family with roots in a destroyed Jewish community in Poland. The Minister emphasized that the concept of persecution ought not to be taken lightly, nor should the Holocaust be forgotten. The Minister then turned to the topic of "war criminals living in Canada today":

None of this provide any particular grist for the Defendant. However the Minister then made an unfortunate remark whereby what may have been political rhetoric on an innocent predilection, and we all have preferences or partialities, may have become a bias, a prejudice or an emotion which interfered with her function:

[57] During the second of the three speeches, at the annual meeting of the Canadian Council for Refugees, in Niagara Falls on 3 December 1999, the Minister spoke of policy, gave specific examples and talked of her experience. She concluded with a remark to which the Defendant objects, submitting that it is an indication of bias:

This remark offers no advantage to the Defendant.

[58] The third speech, that honouring Holocaust survivors, 27 September 2000 in Ottawa, contains several passages to which the Defendant objects:

This passage sets out a perspective of the Minister and perhaps a predilection, but gives one no reason to believe that the view point is damaging to the extent that it might prevent the Minister from doing her job properly. More damaging to the Plaintiff is the Minister's comment subsequent that:

Here the Minister perhaps carries a factual statement much farther than needed, casting some doubts on her ability to undertake the difficult tasks of moving toward a revocation of Mr Seifert's citizenship in a detached and objective way.

[59] In deciding whether, as contended by the Plaintiff, the pleas set out in the Statement of Claim will plainly, obviously and beyond doubt not succeed, I do not, in order to allow those pleas to proceed, need to decide that they will succeed, but rather need only conclude that they stand some chance, however small, of success. Similarly, while I believe a test mid-way between a reasonable apprehension of bias and an open mind applies, I do not need to decide where on that continuum the Minister falls in order to allow this aspect of the claim to proceed or to foreclose the claim now.

[60] The Defendant does not say that the Minister is in fact biased, but pleads that:

The Defendant then continues, characterizing the Minister's actions as a conflict of interest creating a reasonable apprehension of bias and separate abuse:

The Defendant continues in paragraph 19 of the counterclaim alleging malice on the part of the Minister, :

The Defendant concludes, in paragraph 20 of the Statement of Claim, that what was involved in the Minister's actions was not justice, but a pursuit of vengeance giving rise to a severe reasonable apprehension of bias:

To be fair, the Defendant does raise breach of fiduciary duty and a failure to act fairly and impartially. However I would be more comfortable with this portion of the pleading had the Defendant alleged that the speeches of the Minister indicate not necessarily a reasonable apprehension of bias, but a failure to meet some less onerous but still applicable standard, for it is clearly not the reasonable apprehension bias test in itself that applies to the Minister. A Minister, as I have said, is not only a politician and legislator, but also a functionary making a decision which must be judicious, just and even juristic. Thus, the proper plea, which could be established on the facts alleged, would be that the Minister failed to meet a given appropriate standard midway between that of an open mind and that of avoiding a reasonable apprehension of bias. The Defendant may well be able to amend to rectify what is a clear and factual defect in the pleading, that of alleging a standard which clearly does not apply to a minister. There is certainly still a cause of action evident in the pleading. Moreover, it is not a plea which is clearly frivolous, vexatious, prejudicial or abusive. Thus the Order will allow for amendment.

[61] In amending the Defendant may leave in paragraph 19 of the counterclaim, for there are sufficient particulars of the defamatory words in the amendment to paragraph 18. Any lack of the particular defamatory words in paragraph 19 of the counterclaim is more than rectified by the amendment to paragraph 18, referring to the Minister's speeches. Moreover, should the Plaintiff feel the need for further particulars for trial, they would certainly seem to be available, given the 30 January 2002 affidavit of Mr Seifert.

Absolute Privilege

[62] I do not take the Plaintiff's submissions of absolute privilege, extending to the Minister's speeches in 1999 and 2000, as being advanced seriously.

[63] First, the Plaintiff refers to the Minister's procedure, leading up to the Minister's proceeding against Mr Seifert, as being judicial and quasi-judicial: if that were the case a plea of a reasonable apprehension of bias would almost automatically withstand the attempt to strike out. As I have pointed out, the position and obligation of the Minister is not that of someone acting in a judicial or in a quasi-judicial manner, but rather an allowance must be made by reason of the fact that the Minister is also acting in a political way and subject to a much different and lower standard of conduct.

[64] Second, to qualify as privileged, a defamatory statement must be made before a court of justice or a tribunal exercising equivalent functions and here I refer to the Plaintiff's authority Gatley on Libel and Slander, 9^th edition, 1998, Swift & Maxwell of London, at pages 282 and following:

As I have already said, there is no indication that the Minister is acting as a tribunal or exercising functions equivalent to those of an established court of justice.

[65] Third, the Plaintiff refers to a dozen unmarked pages in Brown on the Law of Defamation in Canada, 1999, 2^nd edition, Carswell. Brown, at pages 12-31 and 12-32 sets out the same proposition as Gatley as to privilege attaching to communications taking place during, incidental to and in the processing and furtherance of judicial or quasi-judicial proceedings. This is clearly not applicable both in that the Minister is not operating in a judicial or quasi-judicial level and the statements were made many months before initiation of the present procedure against Mr Seifert.

[66] The passages to which the Plaintiff refers in Brown also deal with documents and material filed with the Court, or prepared for but not filed with the Court, with documents issued by the Court and with witnesses who have been interviewed: see pages 12-129 to 12-139. None of this is applicable for the statements upon which Mr Seifert relies are clearly not a part of the Court's process, but a part of the Defendant's cause of action. Thus the allegations of defamation in the counterclaim shall remain.

Conclusion

[67] For the most part the counterclaim should not have been challenged on a motion to strike out, but rather, since it raises important issue and sets out substantial pleas which are not plainly, obviously and beyond doubt forlorn, ought to be allowed to proceed with, as I have indicated, amendment in one instance.

[68] In that the Defendant has been, in the overall, somewhat more successful than Plaintiff on this motion, the Defendant shall have his costs in any event, payable at the end of the day.

(Sgd.) "John A. Hargrave"

                                                                                                Prothonotary

Vancouver, British Columbia

13 August 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-2016-01

STYLE OF CAUSE:                        The Minister of Citizenship and Immigration v. Michael Seifert

PLACE OF HEARING:                   Motion in writing

DATE OF HEARING:                      -

REASONS FOR ORDER:            Hargrave P.

DATED:                                               13 August 2002

APPEARANCES:

Beverly J Wilton                                                              FOR PLAINTIFF

Douglas H Christie                                                        FOR DEFENDANT

SOLICITORS OF RECORD:

Morris A Rosenberg                                       FOR PLAINTIFF

Deputy Attorney General of Canada

Vancouver, British Columbia

Douglas H Christie                                                        FOR DEFENDANT

Barrister and Solicitor

Vancouver, British Columbia