Date: 19980522
Docket: T-1401-97
IN THE MATTER OF THECITIZENSHIP ACT
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
AMANDA LYNDALL DODDS,
Appellant.
REASONS FOR JUDGMENT
ROTHSTEIN J.:
[1] This is an appeal from a decision of the Citizenship Court which refused to approve the appellant's application for citizenship. Robert Alexander Dodds is an executive with the Estee Lauder Company. Amanda Dodds is his wife. Both are citizens of South Africa. They have two young children.
[2] Mr. Dodds was transferred by Estee Lauder to Canada in October 1990. In July 1993, the Dodds were granted permanent residence status in Canada. On July 31, 1994, Mr. Dodds was transferred to Plano, Texas. He works in the United States on a work permit. No application for landing has been made in the United States. The Dodds' Canadian citizenship application was made on May 30, 1996.
[3] The Dodds both impressed me as honest witnesses. They have no desire to return to South Africa. They have friends in Canada and have a long lineage of Canadian relatives. The difficulty is that from July 31, 1994 to May 30, 1996, they have lived in the United States and continue to live there to this date. While they both expressed a desire to return to Canada, Mr. Dodds was very frank in explaining the Estee Lauder corporate culture which involves sending executives on a number of temporary assignments. He is a rising executive in his company and he feels loyal to it. He could be transferred anywhere and indeed cited as an example the possibility of having to move to Australia. While he could be transferred back to Canada I cannot infer more than a possibility of this happening from the evidence. I note that Estee Lauder has acquired a new business in Canada and this may statistically improve Mr. Dodds's chances of returning to Canada. However, there is still no evidence of any specific connection between him and the new business.
[4] When Mr. Dodds was transferred to the United States, the Dodds' Canadian real estate was sold. Naturally he now pays United States and not Canadian income tax.
[5] Where residence is an issue in citizenship cases, the test is whether the appellant "regularly, normally or customarily" lives in Canada; whether the appellant "has centralized his or her mode of existence" in Canada: See Re Koo, [1993] 1 F.C. at 286 (T.D.) at 293. Having regard to the criteria set forth in Re Koo at page 293, I note the following.
[6] In the three years before the citizenship applications were made the appellants were in Canada approximately 427 days and away 668 days. Their time away from Canada was after their time in Canada. The appellants' immediate family reside with them in the United States, although they do have extended family in Canada. There is no pattern of physical presence in Canada that would indicate a return home. Their physical absence is over 60% of the total 1095 days in the three years prior to the citizenship application. Their physical absence cannot be said to be temporary in relation to returning to Canada. I cannot say from the evidence that the connection of the appellants with Canada is more substantial than with any other country. I regret that, notwithstanding the sincere desire of the appellants to become Canadian citizens, the evidence does not demonstrate that Canada is where they regularly, normally or customarily live or where they have centralized their mode of existence.
[7] The appellants say that if the appeal is dismissed, the Court should recommend that the Governor in Council, under subsection 5(4) of the Citizenship Act, direct the Minister to grant citizenship to the appellants as a reward for service of exceptional value to Canada. Mr. Dodds says that when he came to Canada in 1990, he turned around the Estee Lauder operations in this country, such that approximately 150 jobs were saved. He says that this is the type of contribution to be recognized under subsection 5(4) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended.
[8] I have previously expressed the opinion that a Federal Court judge is not precluded from making a recommendation to the Governor in Council to direct the Minister to grant citizenship to an appellant (and his family) as a reward for services of an exceptional value to Canada. See Re Lee (1997), 138 F.T.R. 158.
[9] I have no reason to doubt Mr. Dodds with respect to his contribution to Estee Lauder in Canada and the saving of many jobs. However, the turning around of a company and the saving of jobs is a complex matter. The evidence before me was superficial on this point. A direction by the Governor in Council under subsection 5(4) of the Citizenship Act is an extraordinary action. In order to be satisfied that this is an appropriate case in which to recommend such extraordinary action, I would require much more evidence of Mr. Dodds' contribution, including objective evidence such as that of other officers of the Estee Lauder organization or perhaps employees. While I do not see any single piece of evidence as determinative, something more than the subjective view of an individual about his own accomplishment is necessary.
[10] In the circumstances, I would decline to make the recommendation to the Governor in Council in this case. This is not intended to reflect negatively on Mr. Dodds. I see nothing that precludes him from submitting the matter to the Governor in Council directly with appropriate supporting evidence if he chooses to do so.
[11] The appeal is dismissed.
"Marshall Rothstein"
J U D G E
TORONTO, ONTARIO
MAY 22, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1401-97
| STYLE OF CAUSE: IN THE MATTER OF THE CITIZENSHIP ACT, R.S.C. 1985, c. C-29 |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
Appellant
DATE OF HEARING: MAY 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.
DATED: MAY 22, 1998
APPEARANCES: Mr. Benjamin J. Trister
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: Greenberg Trister Turner
401 Bay Street
Suite 3000
Toronto, Ontario
M5H 2Y4
For the Appellant
Peter K. Large
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19980522
Docket: T-1401-97
Between:
| IN THE MATTER OF THE CITIZENSHIP ACT, R.S.C. 1985, c. C-29 |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
Appellant
REASONS FOR JUDGMENT
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