Date: 20080204
Docket: T-1162-07
Citation: 2008
FC 146
Vancouver, British Columbia, February
4, 2008
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
LEAGUE FOR
HUMAN RIGHTS OF B'NAI BRITH CANADA
Applicant
and
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
WASYL ODYNSKY
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
Respondent, Wasyl Odynsky (Odynsky), seeks an order striking out the within
application for judicial review on the grounds that the Applicant, the League
for Human Rights of B’Nai Brith Canada (B’Nai Brith) lacks
standing.
Facts
[2]
The
facts on this motion may be summarized as follows. On September 24, 1997, the
Minister of Citizenship and Immigration (Minister) gave notice to Odynsky that
it was her intention to request that the Governor in Council (GIC) revoke his
citizenship. At Odynsky’s request, the Attorney General of Canada prepared a
Notice of Reference referring the matter of revocation of citizenship to the
Federal Court. On March 2, 2001, Mr. Justice Andrew MacKay found that Odynsky
obtained citizenship under the Citizenship Act, R.S.C. 1952, c. 33 by
false representation or by knowingly concealing material circumstances when he
was admitted to Canada for permanent residence in 1949. By way of a
Report, the Minister recommended to the GIC that Odynsky should cease to be a
Canadian citizen as of the date of the Order-in-Council. On May 17, 2007, the
GIC issued an Order-in-Council not to revoke Odynsky’s citizenship.
[3]
On
June 22, 2007, B’Nai Brith filed a Notice of Application challenging the
decision of the Governor in Council (GIC) not to revoke the citizenship of
Odynsky on the grounds that the GIC erred in law and that the decision violated
the Charter of Rights and Freedoms. B’nai Brith brought a similar
application challenging the non-revocation of citizenship of Vladimir Katriuk
(Katriuk) one week later in Court File No. T-1191-07.
[4]
Following
service and filing of B’Nai Brith’s affidavit evidence pursuant to Rule 306 of
the Federal Courts Rules and production of the certified tribunal
record, Odynsky brought the present motion for an order striking the
application on the grounds that the Applicant lacks standing. He argues that there is no point in
putting the parties to the expense of responding to the application and to
waste scarce judicial resources when it is plain and obvious that the applicant
lacks standing. The Crown Respondents and Katriuk filed written
representations and made oral submissions in support of Odynsky’s motion. The
parties agree that the decision on this motion should also apply to the
proceedings in T-1191-07.
Issue
[5]
The
motion raises the vexing question whether this Court should entertain Odynsky’s
motion to dismiss the application by way of interlocutory motion or leave the
matter for determination by the application judge.
Analysis
[6]
An
application for judicial review is, by its very nature, meant to be decided
summarily. In order to ensure that applications do not get bogged down in
procedural quagmires and proceed to hearing expeditiously, this Court generally
discourages such motions.
[7]
In
the case of Sierra Club of Canada v. Canada (Minister of Finance) [1999]
2 F.C. 211 (T.D.), Mr. Justice Johns Evans cautioned against a ruling on
standing on a motion to strike, especially in the case of an application for
judicial review, as the Court may not be in a position to consider all the
factors relevant to the ground of discretionary standing, and more particularly
the strength of the applicant’s case. This does not apply to the case at bar,
however, as it appears that a complete evidentiary record is before the Court.
Odynsky’s affidavit evidence and the certified record have been produced, and
the parties
have been given ample opportunity to make full argument on the
discrete issue of standing. As such, there is no impediment to the Court
exercising its discretion to deal with the matter on a preliminary motion.
[8]
The
Court may intervene prior to the hearing of the application where it can be
established that an applicant is not directly affected or has no legitimate
interest in the proceeding. However, dismissal of an application by
interlocutory motion will only be granted in exceptional cases, where it is
shown to be so clearly improper as to be bereft of any possibility of success: David
Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), [1995] 1 F.C.
588; Bouchard v. Canada (Minister of National Defence) (1999) 187 D.L.R.
(4th) 314, 255 N.R. 183 (F.C.A.) at paragraph 12; Syntex (U.S.A.) L.L.C. v.
Canada (Minister of Health) 2002 FCA 289, 292 N.R. 147, 20 C.P.R. (4th) 29
at paragraph 5; Scheuneman v. Canada (Attorney General) 2003 FCA 194 at
paragraph 7. The fairly high onus rests on the moving party to establish, in a
clear and convincing manner, that the applicant lacks standing.
Whether B’Nai Brith is
directly affected by the decision
[9]
Odynsky
submits that it is plain and obvious that B’Nai Brith does not have standing to
bring this application since it is not “directly affected” by the decision of
the GIC not to revoke Odynsky’s citizenship within the meaning of ss. 18.1(1)
of the Federal Courts Act. B’Nai Brith responds that it has four
interests which distinguish it from the public at large. The first interest
involves the issue of bringing war criminals to justice. The second is its
interest in the Odynsky case as a result of having made numerous submissions to
the Government after Justice MacKay’s ruling calling for the revocation of
Odynsky’s citizenship. Third, B’Nai Brith claims that it represents the
relatives of victims who perished in labour camp where Odynsky was stationed as
a perimeter guards. According to B’Nai Brith, these individuals have a direct
interest in these proceedings. Fourth, the B’Nai Brith asserts an interest
stemming from the duty of fairness.
[10]
For
an applicant to be considered “directly affected”, the matter at issue must be
one which adversely affects its legal rights, imposes legal obligations on it,
or prejudicially affects it directly: Canwest Mediaworks Inc. v. Canada (Minister
of Health), 2007 FC 752 at para. 13; Apotex Inc. v. Canada (Governor in
Council),
2007 FC 232 at para. 20; Rothmans of Pall Mall Canada Ltd. v. Canada (Ministry of
National Revenue), [1976] F.C. 500 (C.A.). Although
the test of “directly affected” is flexible, it will depend on the
circumstances of each case. Consideration must be had to the relationship
between the applicant and the challenged decision, the nature of the statutory
scheme which gave rise to the decision, and the merits of the complaint.
[11]
B’Nai
Brith and its members obviously have an interest in the Odynsky case, however
the decision whether or not to revoke his citizenship has no direct impact in
them. Their legal obligations or rights are not affected in any way by the
decision, nor does the decision have a direct prejudicial effect on them. The
satisfaction of righting a wrong or upholding a principle does not constitute a
personal or direct stake in the outcome of the litigation: Finlay v. Canada (Minister of
Finance),
[1986] 2 S.C.R. 607, at para 21.
[12]
In
the circumstances, I conclude that B’Nai Brith is not directly affected by the
GIC decision not to revoke the citizenship of Odynsky with the meaning of ss.
18.1(1) of the Federal Courts Act.
Whether B’Nai Brith has
public interest standing
[13]
I
now turn to B’Nai Brith’s alternative argument that it has public interest
standing to bring the application. Once again, on a preliminary motion to strike an
application for lack of standing, the onus ultimately rests on the proponent.
However, a responding party cannot hide behind the legal burden in a
preliminary motion and ignore the evidentiary or persuasive burden that rests
upon it to state its case. The Court cannot be expected to simply trust that an
applicant has an arguable case that will be articulated at some point in the
future.
[14]
The
test for public interest standing, as articulated by the Supreme Court of
Canada in Canadian Council of Churches v. Canada (Minister of Employment and
Immigration), [1992] 1 S.C.R. 236 (Council of Churches) at paragraph
37, has three elements. First, there must be a serious issue to be tried.
Second, the party must have a direct interest or a genuine interest in the
matter. Third, there is no other reasonable and effective manner in which to
bring this issue to the Court.
[15]
The
Attorney General of Canada has conceded for the purpose of this motion that
B’Nai Brith has satisfied the third element. I agree. However, this factor by
itself is not sufficient to grant standing given the conjunctive nature of the
test set out in the Council of Churches decision.
[16]
With
respect to the first element of serious issue, the Notice of Application sets
out two grounds to challenge the GIC’s decision not to revoke Odynsky’s
citizenship: the decision is wrong in law and it violates the Charter. B’Nai Brith
elected not to elaborate on its bald assertion of a Charter breach. It
is difficult to conceive any Charter right that may be engaged or may be raised
by a corporation in the circumstances of the GIC decision. In the
circumstances, I conclude that the no serious issue is raised in respect of the
Charter.
[17]
On
the issue of law, which deals with statutory interpretation of s.10 of the Citizenship
Act, B’Nai Brith takes that the position that the procedure for revocation
of suspected Nazi war criminals used by the GIC, which includes consideration
of a wide range of factors, is not authorized. B’Nai Brith argues that the law
allows the GIC to consider only whether citizenship was obtained by false
representation or fraud or by knowingly concealing material circumstances. In
other words, the GIC has no discretion is determining whether to revoke
citizenship.
[18]
In
my view, no serious issue of law is raised. The Federal Court of Appeal has
already determined that the GIC is required to consider personal factors when
deciding whether to revoke an individual’s citizenship: Oberland v. Canada (Attorney
General),
2004 FCA 213. Earlier decisions of the Federal Court of Appeal also confirm
that the GIC is not compelled to revoke citizenship after the Court has made a
finding of fact that there was misrepresentation, fraud or concealment: Canada
(Secretary of State) v. Luitjens, [1992] F.C.J. No. 319 (FCA); Canada
(Minister of Citizenship and Immigration) v. Bogutin, [1998] F.C.J. No. 211
(F.C.).
[19]
B’Nai
Brith also raises a fairness issue as to whether the Governor in Council is
required to provide reasons. One must keep in mind the nature of the process
which gave rise to the GIC decision: it is not between Mr. Odynksy and the B’Nai
Brith, but rather between Mr. Odynsky and the Minister of Citizenship and
Immigration, representing the public interest. Moreover, the purpose for
reasons is to enable the parties, particularly the person affected, to make a
reasonable decision about further legal proceedings and so that the parties can
know the basis of a positive or negative decision directly affecting them: Baker
v M.C.I., [1999] S.C.J. No. 39. The raising of a serious issue by a public
interest organization must, based on the jurisprudence, be one of public
importance, not meddling in a decision affecting an individual.
Conclusion
[20]
The
moving party has shown that it is plain and obvious that B’Nai Brith could not
succeed on the hearing of the application for judicial review as it is not
directly affected by the GIC decision, and there is no serious issue to be
considered by the application judge. In the circumstances, I consider just and
appropriate to exercise my discretion by granting the motion and striking the
application.
ORDER
THIS COURT ORDERS that
1.
The
motion is granted.
2.
The
application for judicial review is dismissed.
3.
Costs
of the motion shall be paid by the Applicant to the Respondent, Wasyl Odynsky.
“Roger R. Lafrenière”
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