Docket: T-255-16
Reference:
2017 FC 291
Ottawa (Ontario), March 21, 2017
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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AUDREY CHÉDOR
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
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Respondent
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ORDER AND REASONS
I.
INTRODUCTION
[1]
Ms. Audrey Chédor, the applicant, filed a Motion
under Rule 467 of the Federal Courts Rules, SOR/98-106, to
seek a show cause Order against the Minister of Immigration, Refugees and Citizenship
Canada (the Minister of Citizenship and Immigration as per section 4 of the Immigration
and Refugee Protection Act, SC 2001, c 27) [the Minister] on the basis that
he is in contempt of court. The Court directed Ms. Chédor to serve the Motion
to the Minister and allowed him to respond.
[2]
On October 31, 2016, Justice Martineau rendered
a Judgment and Reasons (Chédor v Canada (Minister of Citizenship and
Immigration), 2016 FC 1205 [Chédor]). By his Judgment, Justice
Martineau homologated the settlement the parties had reached on February 2,
2016 [Settlement], and made it an order of the Court [Order]. Justice
Martineau’s Judgment and the Settlement it refers to are reproduced in Annex.
[3]
Ms. Chédor contends that the Minister breached
the Settlement, and is therefore in contempt of Justice Martineau’s Order.
[4]
Ms. Chédor asks the Court for 10 remedies,
although of importance for the show cause proceedings under Rule 467 are her
allegations that the Minister breached Justice Martineau’s Order by (1) failing
to provide evidence of an effective review of all their department policies,
application forms, along with the corresponding guides, in order to remove the
additional requirement that applicants seeking a change of sex designation on
the citizenship certificate provide evidence that they have undergone sex
reassignment surgery (partial or full); and (2) failing to develop, consistent
with Justice Martineau’s Judgment, alternative types of acceptable evidence for
applicants who are unable to provide documentary evidence originating from a
Canadian province or territory, and therefore, pushing or motivating applicants
to submit proof of surgery.
[5]
In her motion, Ms. Chédor points to specific
allegations of failure to, among others, provide evidence that section 6 “Sex / Change of Sex or Gender Reassignment” of the “Citizenship Policy Manual CP 3 – Establishing Applicant’s
Identity” has been effectively modified in compliance with the Judgment,
or abrogated, and to remove the requirement “proof of
full or partial sex reassignment surgery” from the Instruction Guides
for applicants CIT 0001 and CIT 0002.
[6]
Ms. Chédor contends first that the Settlement
did not express the full intent of the parties, which was to eliminate all and
any requirement for applicants to provide a proof of sex reassignment surgery,
which was not respected by the Minister, and second, that even if the
Settlement is to be taken at face value, the Minister has failed to respect it.
[7]
As it is the Court’s conclusion that the
applicant has not met the burden of proof of establishing prima facie contempt,
the motion will be dismissed.
II.
FACTUAL CONTEXT
[8]
The factual background is set forth in Justice
Martineau’s Reasons. As a preliminary observation, this Court also wishes to acknowledge
the delicate and private character of the proceedings and will thus outline only
the necessary facts. Hence, suffice to say that in 2012, Ms. Chédor filed a
complaint with the Canadian Human Rights Commission after having sought the issuance
of a revised certificate of Canadian citizenship reflecting her sex as female.
The parties settled their dispute and signed the 7 paragraphs Settlement, itself
approved by the Canadian Human Rights Commission on March 4, 2015.
[9]
Justice Martineau allowed in part the
Application Ms. Chédor presented pursuant to subsection 48(3) of the Canadian
Human Rights Act, RSC 1985, c H-6 and Rule 300 b) of the Federal Courts
Rules. As stated already, Justice Martineau homologated the Settlement, and
for the purpose of enforcement, made it an Order of the Federal Court.
[10]
Paragraph 2 of the Settlement dictates the
action that must be taken by the Minister and is at the heart of Ms. Chédor’s Motion
for a show cause in these proceedings. It thus appears necessary to reproduce
it:
The Respondent will revise their
departmental policies to remove the current requirement that applicants seeking
a change of sex designation on their citizenship certificate provide evidence
that they have undergone sex reassignment surgery in addition to
providing provincial and territorial documentation reflecting a change of sex
or gender. This revision will take place within one calendar year of the
signing of this agreement. Application forms for a citizenship certificate for
adults and minors (proof of citizenship), along with the corresponding guides
to applicants, will be update to reflect the new requirements under this
policy.
(Our emphasis)
[11]
Under the terms of paragraph 2, it seems clear that
individuals who seek a change of sex designation on their citizenship
certificate no longer need to provide evidence that they have undergone sex
reassignment surgery in addition to provide provincial or territorial
documentation reflecting a change of sex or gender. It also states that the
related application forms and guides will be updated to reflect the new
requirements.
[12]
It appears from the record that the new
application forms, instructions and guides now contain a note confirming that
applicants who seek a change of sex designation on their citizenship
certificate no longer require proof of a sex reassignment surgery when they provide
provincial or territorial documentation reflecting a change of sex or gender.
[13]
The Court noted Ms. Chédor’s reference to her
exhibits C-28, specifically page 142 of the applicant’s record; C-58,
specifically at page 172; and J-5 at page 249.
[14]
Page 142 is part of the most recent instructions
to the applicants for the Application for a citizenship certificate;
page 172 is part of the most recent instructions to the applicants for the Application
for citizenship; and page 249 is part of the guide Identity management:
Sex designation on IRCC documents and in IRCC systems.
[15]
The information on page 249 generally states: “In addition to the documentary evidence listed below, the
applicant must still provide any documents requested as part of the application
instruction guide and document checklist to establish identity”. It
also confirms the list of the three acceptable documents that can be submitted
in order to request a change of sex designation on Immigration, Refugees and
Citizenship Canada [IRCC] documents. At the bottom of the page it specifically
states IRCC does not require proof of any sex reassignment surgery in order to
amend the sex designation.
[16]
The information on page 142, part of the
application instruction guide, lists the documentary evidence, when such
originates from Canada, that must be submitted to request a change of sex
designation and the Court notes that (1) the proof of full or partial sex
reassignment surgery is one of the four non-cumulative acceptable options, and
(2) an applicant unable to obtain any of the 4 listed documents as an
additional option must submit a statutory declaration and a letter from a
physician or psychologist.
III.
POSITION OF THE PARTIES
A.
Ms. Chédor
[17]
Ms. Chédor contends that the Minister breached
the Settlement and is in contempt of Justice Martineau’s Order as (1) all
mention of evidence of a sex reassignment surgery has not been eliminated from
the application forms and/or guides/policy requirement; and (2) alternatively,
as the general statement that appears at the top of page 249 provides IRCC with
the option to require any document, thus including a proof of sex
reassignment surgery.
[18]
On the first argument, Ms. Chédor submits that
the wording of paragraph 2 of the Settlement does not actually reflect the
intention of the parties, which would have been to eliminate all and any
requirement to submit a document pertaining to proof of sex reassignment
surgery.
[19]
Ms. Chédor refers to paragraph 7 of the
Settlement that confirms the transaction is one under section 2631 of the Civil
Code of Québec, CQLR, c CCQ-1991 to support the proposition that the Court must
seek the intention of the parties, and not stick to the letter of paragraph 2,
and that the contempt procedure must be examined through the lens of the Civil
Code of Québec.
[20]
During the hearing, the Court signaled to Ms.
Chédor the very particular nature of the contempt proceeding, and the necessity
that the conduct of the parties be clearly outlined and not be in dispute. In
response to this concern, Ms. Chédor argued alternatively that the Minister was
in contempt even of the actual wording of paragraph 2 given that the statement
at the top of page 249 of the guide provides authority for IRCC to require any
document listed in the application package, and to ignore its own guidance
regarding the acceptable documents.
B.
The Minister
[21]
In essence, the Minister submits there is no
basis for the applicant’s motion, that the application forms and guides were
amended, that IRCC no longer requires proof of sex reassignment surgery in
addition to provincial documents, and even provides an applicant with
additional options if none of the documentary evidence is available.
IV.
DISCUSSION
[22]
Upon a motion seeking an order of this Court
pursuant to Rule 467 of the Federal Courts Rules, an applicant must
establish “a prima facie case of willful and
contumacious conduct on the part of the contemnor” (Chaudhry v Canada,
2008 FCA 173 au para 6). Such motion more precisely requires proof of:
•
A Court Order or other Court process;
•
The respondent's knowledge of the order or
process; and
•
A deliberate flouting of the Court Order or
process (Mennes v Warkworth Institution, 2001 FCT 571 at para 5; Canadian
Private Copying Collective v Fuzion Technology Corp, 2009 FC 800 at para
60-62).
[23]
It is worth noting that “[a]
motion for a show cause order is not the time or place to argue the merits of
the contempt proceeding or what may be valid defences”, except “where it is clear from the record that the alleged violation
is such that it does not deserve to be punished” (Direct Source
Special Products Inc v Sony Music Canada Inc, 2005 FC 1362 at para 4).
[24]
Even at this stage, the intent must be shown on
the part of the respondent (Orr v Fort Mckay First Nation, 2012 FC 1436
at para 15).
[25]
Important to these
proceedings, and as demonstrated by the following case law, the Court Order
must be clear and not ambiguous.
[26]
In Rameau v Canada (Attorney General),
2012 FC 1286, the Court observed that a difference in interpretation was raised
and that it was not clear what the parties had to do to comply with the order.
Justice Boivin concluded that, in these circumstances, the applicant had “not discharged her burden of making a prima facie case”
(at para 21).
[27]
This reasoning was echoed by Justice Snider in
Felix Sr v Sturgeon Lake First Nation, 2013 FC 310 (unpublished) at
paragraph 10 when she stated: “Further, the individual
alleging contempt of a court order must demonstrate that the order was clear
concerning what actions were required for compliance (Rameau v Canada (Attorney
General), 2012 FC 1286 at para 19, [2012] FCJ No 1641)”. Justice Snider
dismissed the motion seeking an Order of this Court pursuant to Rule 467.
[28]
In Canada (National Revenue) v CD²I
Coopérative de Services en Développement International, 2009 FC 820,
Justice Beaudry had to decide if the respondent was guilty of contempt of
court. This hearing took place after Justice Lemieux ordered the respondent to
appear before a judge of this Court to show cause why he was not in contempt of
Court under Rule 466, finding “that the Order dated
October 9, 2007 was clear, that there is prima facie evidence that the
Respondent has had actual knowledge of the order and that there is prima facie
evidence of a willful and contumacious conduct on the part of [the respondent]”
(at para 10, emphasis added).
[29]
In the same vein, in Abbvie Corporation v
Janssen Inc, 2014 FC 863 (unpublished), Justice Brown found that prima
facie “an unambiguous Order of this Court
was disobeyed” (emphasis added) and issued an order pursuant to Rule
467.
[30]
In the case at hand, Ms. Chédor’s first argument
must be dismissed, as it would require the Court to accept the proposition that
the Order should be interpreted by seeking the intention of the parties,
meaning that the Order is not clear in itself. The case law shows that no
finding of contempt can be made from implied terms of an order, but that the
interpretation of the order must rather be discernible from its face (see also Gurtins
v Panton-Goyert, 2008 BCCA 196 at para 16; Jackson v Jackson, 2016
ONSC 3466 at para 51). Therefore, the argument that the Order is not clear, hence
that it does not unambiguously state what the Minister had to execute, cannot
support a show of cause Motion under Rule 467.
[31]
Ms. Chédor’s alternative argument, that the
Minister breached paragraph 2 by allowing IRCC to require “any documents”, is
not supported by the evidence. To the contrary, the documents submitted by Ms.
Chédor indicate that the terms of paragraph 2 of the Settlement were clearly
integrated in the guides and instruction documents destined to persons applying
for a Citizenship certificate. The Court is satisfied it is not prima facie
evidence of the Minister’s breach of the Order.
[32]
In conclusion, and again “without deciding whether a finding of contempt may be made
against the Crown” (Chédor at para 79), it is the Court’s
decision that Ms. Chédor has not established prima facie that the
Minister is in contempt of Justice Martineau’s Order.
[33]
Given this finding on contempt, the Court deems
unnecessary to address the other remedies sought by Ms. Chédor.
ORDER
THIS COURT’S ORDER is that:
1. The Motion is dismissed.
2. Costs of $850 are granted in favor of the respondent.
"Martine St-Louis"
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