Docket:
T-10-13
Citation:
2014 FC 342
Ottawa, Ontario, April 9,
2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Plaintiff/Defendant by Counterclaim
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And
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HOUCHAINE, BOUTROS NAIM;
EL-SKAYER, JACQUELINE MOUSA; HOCHAIME, LYNN BOUTROS;
HOCHAIME, JENNIFER BOUTROS
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Defendants/Plaintiffs by Counterclaim
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Minister of Citizenship and Immigration
seeks summary judgment declaring that the four members of the defendant family
obtained their Canadian citizenship by false representations or fraud, or by
knowingly concealing material circumstances. The Minister also seeks an order
dismissing the defendants’ Counterclaim, and costs on a solicitor and client basis.
[2]
For the reasons that follow, I am satisfied that
the defendants have not raised a triable issue as to whether they obtained
their Canadian citizenship as a result of false representations made in their
citizenship applications. Consequently the declarations sought by the Minister
will issue. I am further satisfied that the defendants’ Counterclaim should be
summarily dismissed as it too does not raise any triable issues, and that the
Minister should have his costs.
I.
Background
[3]
The defendants are a mother, father and two
adult daughters. The family was landed in Canada on August 16, 2004, and
citizenship applications were filed by each of the four defendants on varying
dates in 2008.
[4]
Each defendant declared absences from Canada in his or her citizenship application. None of the declared absences were sufficient
to raise any questions as to whether the defendants had met the residency
requirements of the Citizenship Act, R.S.C., 1985, c. C-29.
[5]
The defendants were subsequently granted
Canadian citizenship. Jennifer Houchaime became a Canadian citizen on September
25, 2008. Her mother, Jacqueline El-Ksayer and her sister, Lynn Houchaime,
became Canadian citizens on December 18, 2008, and Jennifer’s father, Boutros
Naim Houchaime, became a Canadian citizen on May 11, 2009.
[6]
The Minister subsequently came to believe that
each of the defendants was in fact resident in Dubai during much of the four
year period immediately preceding the granting of their Canadian citizenship.
This led the Minister to commence citizenship revocation proceedings.
[7]
In accordance with the provisions of the Citizenship
Act, the revocation process was commenced by the service of a Notice in
Respect of Revocation of Citizenship on each of the defendants. This Notice
advised the defendants of the Minister’s intent to make a report to the
Governor in Council seeking the revocation of each of their citizenship on the
grounds that it had been obtained by false representation or fraud or by
knowingly concealing material circumstances.
[8]
In particular, the Notices assert that each of
the defendants “failed to disclose all of [his or her]
absences from Canada within the four years immediately preceding [his or her]
citizenship application” and that each of the defendants “provided false information on [his or her] application for
citizenship with respect to [his or her] residence during the four years
immediately preceding [his or her] citizenship application”.
[9]
After receipt of the Minister’s Revocation Notices,
the defendants exercised their statutory rights to have the matters referred to
the Federal Court. This was done through the issuance of a Statement of Claim
by the Minister. The defendants subsequently filed a Statement of Defence and
Counterclaim. The parties have since exchanged affidavits of documents, but no
examinations for discovery were held prior to the Minister bringing his motion
for summary judgment in relation to both the claim and the counterclaim.
II.
The Nature of the Proceedings and the Law
[10]
In order to situate the arguments of the parties,
it is necessary to have an understanding of the citizenship revocation process.
[11]
A reference by the Minister under paragraph
18(1)(b) of the Citizenship Act is not an action in the conventional
sense of the word. Rather, it is “essentially an investigative
proceeding used to collect evidence of facts surrounding the acquisition of
citizenship, so as to determine whether it was obtained by fraudulent means”:
Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2002 FCA
518 at para. 15, [2002] F.C.J. No. 1800.
[12]
The task for the Court in a proceeding such as
this is to make factual findings as to whether the defendants obtained their
Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances. Findings made by this Court under
paragraph 18(1)(b) of the Citizenship Act are final, and cannot be
appealed.
[13]
The Court’s factual findings are not
determinative of any legal rights. That is, the decision does not have the
effect of revoking the defendants’ Canadian citizenship: Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R.
391 at para. 52, [1997] S.C.J. No. 82, citing Canada (Secretary of
State) v. Luitjens, [1992] F.C.J. No. 319 at 152, 142 N.R. 173 (FCA).
[14]
These findings may, however, form the basis of a
report by the Minister to the Governor in Council requesting the revocation of
the defendants’ citizenship. The ultimate decision with respect to the
revocation of citizenship rests with the Governor in Council, which is the only
authority empowered to revoke citizenship.
[15]
Subsection 10(1) of the Citizenship Act
allows the Governor in Council to revoke the citizenship of an individual where
the Governor in Council is satisfied, on the basis of a report from the
Minister, that the person has obtained his or her citizenship “by false representation or fraud or by knowingly concealing
material circumstances”.
[16]
A decision by the Governor in Council to revoke
an individual’s citizenship may be judicially reviewed in this Court: Canada (Minister of Citizenship and Immigration) v. Furman, 2006 FC 993 at
para. 15, [2006] F.C.J. No. 1248.
III.
The Burden and Standard of Proof
[17]
The burden is on the Minister to demonstrate
that the defendants obtained their Canadian citizenship by false representation
or fraud or by knowingly concealing material circumstances: Canada (Minister of Citizenship and Immigration) v. Skomatchuk, 2006 FC 994 at para. 21,
[2006] F.C.J. No. 1249.
[18]
The standard of proof is that of the balance of
probabilities: Skomatchuk, above, at para. 23. The balance of
probabilities standard will be satisfied if the evidence establishes that it is
more probable than not that something occurred. That is, I must be satisfied
that an event or fact in dispute is not only possible, but probable: Skomatchuk,
above, at para. 25.
[19]
Before examining whether the Minister has met
his burden in this case and whether the defendants have raised a triable issue
in this regard, I must first address the defendants’ motion to examine a
non-party for discovery.
IV.
The Defendants’ Motion for Discovery of a
Non-party
[20]
This action was commenced in January of 2013. On
August 21, 2013, counsel for the defendants advised the Minister that he was
contemplating bringing a motion to examine the immigration consultant who allegedly
assisted the defendants with their citizenship applications. Counsel for the
defendants further advised that if the Minister proceeded with a motion for
summary judgment, he would seek an adjournment of that motion, if necessary, so
as to permit the bringing of a third-party discovery motion. Months passed, and
no such motion was ever brought by the defendants.
[21]
In January of 2014, counsel for the Minister
advised counsel for the defendants that she would be proceeding with her motion
for summary judgment. Counsel for the defendants responded that before the
motion for summary judgment could be dealt with, his motion for the discovery
of a non-party had to be heard. However, no such motion was brought at that
time.
[22]
The Minister’s motion for summary judgment was
set down for hearing on March 4, 2014. On the return of the motion, counsel for
the defendants sought an adjournment of the Minister’s motion so as to allow
for the bringing of a motion for the examination of the immigration consultant.
Justice Kane agreed to adjourn the Minister’s motion to April 1, 2014. However,
her March 5, 2014 Order expressly stated that “no further
adjournments will be permitted, regardless of the defendants’ ability to
discover the non-party in the intervening period”.
[23]
The defendants finally did bring their motion to
discover the immigration consultant, making it returnable on April 1, 2014, the
date set for the hearing of the Minister’s motion for summary judgment. Once
again, the defendants sought to have the Minister’s motion adjourned so as to
permit the examination for discovery to take place.
[24]
After hearing the parties in relation to the
defendants’ request for an adjournment, I ruled that I would not entertain the
motion for discovery of the immigration consultant in light of the dilatory
conduct on the part of the defendants in pursuing this issue. I further noted
that Justice Kane’s March 5, 2014 Order was very clear that no further
adjournments of the Minister’s motion would be granted to the defendants so as
to permit them to pursue the discovery of the immigration consultant. Justice
Kane’s order was equally clear that the Minister’s motion for summary judgment
would proceed on April 1, 2014, regardless of whether or not the defendants had
been able to discover the non-party in the intervening period.
[25]
I further advised the parties that having heard
from them with respect to the merits of the defendants’ motion, I would not
have granted the motion in any event. The defendants’ allegations as to the
potential relevance of the immigration consultant’s evidence were vague and
non-specific, and counsel for the defendants was unable to articulate what the
immigration consultant could possibly say that would assist the defendants in
their defence of the Minister’s action.
V.
Principles Governing Summary Judgment
[26]
Before turning to consider the evidence in this
matter, I would first note that in deciding whether summary judgment should
issue, the Court must determine whether there is a genuine issue for trial with
respect to either a claim or a defence. The purpose of summary judgment is to
allow the Court to summarily dispense with actions that ought not to proceed to
trial because they do not raise a genuine issue to be tried.
[27]
The test on a motion for summary judgment “is not whether a party cannot possibly succeed at trial;
rather, it is whether the case is so doubtful that it does not deserve
consideration by the trier of fact at a future trial”. As a consequence,
“summary judgment is not restricted to the clearest of cases”: all quotes from Canada (Minister of Citizenship and Immigration) v. Campbell, 2014 FC 40 at para. 14, [2014]
F.C.J. No. 30, citing ITV Technologies Inc v. WIC Television Ltd., 2001
FCA 11 at paras 4-6, 199 F.T.R. 319; Premakumaran v. Canada, 2006 FCA
213 at paras 9-11, [2007] 2 F.C.R. 191; Canada (Minister of Citizenship and
Immigration) v. Schneeberger, 2003 FC 970 at para. 17, [2004] 1 F.C.R. 280.
VI.
Should Summary Judgment be Granted in Relation
to the Minister’s Action?
[28]
In addressing the question of whether summary
judgment should be granted in relation to the Minister’s action, I must first
address the defendants’ contention that the Minister’s action is
statute-barred.
A.
Is the Minister’s Action Statute-Barred?
[29]
In their statement of defence, the defendants plead
that the Minister’s action is statute-barred as a result of the combined effect
of section 32 of the federal Crown Liability and Proceedings Act, R.S.C.,
1985, c. C-50 and sections 4 and 5 of the Ontario Limitations Act, 2002,
S.O. 2002, c. 24, Sch. B.
[30]
Section 32 of the federal Crown Liability and
Proceedings Act provides that, subject to certain exceptions, “the laws relating to prescription and the limitation of
actions in force in a province between subject and subject apply to any
proceedings by or against the Crown in respect of any cause of action arising
in that province…”.
[31]
Section 4 of the Ontario Limitations Act
creates a general two-year limitation period for “claims”.
Section 5 deals with the issue of discoverability. According to the defendants,
because the Minister did not commence revocation proceedings within two years
of the defendants receiving Canadian citizenship, the combined effect of these
legislative provisions is that the Minister’s action is now statute-barred.
[32]
There are several problems with the defendants’
arguments. The first is that it does not appear that an action such as this
meets the statutory definition of a “claim” as
contemplated by section 4 of the Ontario Limitations Act. A “claim” is defined in the Act as meaning “a claim to remedy an injury, loss or damage that occurred as a
result of an act or omission”.
[33]
The second problem is that having denied having
that they made any false representations in connection with their citizenship
applications, the defendants have not indicated how any such representations on
their part could have been discovered any earlier by the Minister.
[34]
Thirdly, paragraph 16(1)(a) of the Ontario Limitations Act provides that there is no limitation period in relation to “a proceeding for a declaration if no consequential relief is
sought”.
[35]
Finally, as the Federal Court of Appeal observed
in Obodzinsky, above, it is illogical for defendants to ask for the
termination of a reference that they themselves have requested for their own
benefit on the grounds of prescription: at para. 48.
[36]
As a consequence, the defendants have not raised
a triable issue with respect to the limitations question.
[37]
I will next review the evidence regarding each
of the defendants in order to determine whether any of the defendants have
raised a triable issue as to the truth of the representations made in their
citizenship applications.
B.
Boutros Naim Houchaime
[38]
Boutros Naim Houchaime stated in his citizenship
application that he was present in Canada for 1,153 days during the relevant
period. He also stated that he was absent from Canada on fifteen occasions
totalling 307 days during the four year period immediately preceding his
application for citizenship in October of 2008.
[39]
As a result of a request made through diplomatic
channels, the Minister subsequently obtained a copy of Mr. Houchaime’s travel
history from the Ministry of the Interior for the United Arab Emirates (UAE),
along with travel histories for the other three members of the family.
[40]
The Minister has provided an affidavit from a
Liaison Officer with the Canada Border Services Agency office in Dubai, who deposes that the UAE maintains strict entry and exit controls over the travel
of persons residing in the UAE on residency permits. The CBSA Officer further
deposes that these controls exist at all ports of entry and exit from the UAE.
It is uncontroverted that the applicants, who were citizens of Lebanon, were in the UAE on residency permits during the relevant period.
[41]
The travel history for Mr. Houchaime reveals that,
contrary to the information provided to the Government of Canada in his
citizenship application, Mr. Houchaime was in fact spending the vast majority
of his time living in Dubai during the relevant period, leaving the UAE only
periodically for short trips abroad. Moreover, publicly available information
suggests that Mr. Houchaime was working as the Managing Director of Mechwatt
Electromechanical Works LLC in Dubai, an assertion that he has not denied in
his affidavit.
[42]
The accuracy and reliability of the travel
histories provided by the UAE has not been questioned by the defendants.
Moreover, counsel for the defendants has acknowledged that there is no evidence
before me from Mr. Houchaime to contradict the travel history reflected in the
UAE’s records relating to him. Indeed, Mr. Houchaime has not denied that his
citizenship application did not accurately reflect his periods of residence in Canada.
[43]
Mr. Houchaime’s only defence is his vague
assertion that he relied on his Canadian immigration consultant to prepare his
citizenship application, suggesting in his affidavit that any material
misstatements in the applications were the responsibility of the consultant.
Mr. Houchaime further asserts that the defendants “did
not have detailed knowledge of the contents of the citizenship applications
filed notwithstanding that they signed said applications as filed on the advice
and encouragement of [the consultant]”.: Houchaime affidavit at para. 11
[44]
Mr. Houchaime has, however, provided no evidence
as to what information he provided to the consultant with respect to his
periods of residency in Canada, nor has he explained how patently false
information came to be included in his application.
[45]
In accordance with Rule 214 of the Federal
Courts Rules, S.O.R./98-106, a response to a motion for summary judgment
cannot be based upon what might be adduced as evidence at a later stage in the
proceeding. Rather, respondents are required to “set out
specific facts and adduce the evidence showing that there is a genuine issue for
trial”. Mr. Houchaime’s evidence as to the role of the immigration
consultant is entirely unsatisfactory and does not come close to meeting the
threshold contemplated by Rule 214
[46]
It is also noteworthy that passport applications
completed by the family after they obtained Canadian citizenship also contain
material misinformation as to where they had been living during the time
periods in issue. There is no suggestion in Mr. Houchaime’s affidavit that the
immigration consultant had any involvement in the completion of the family’s
passport applications.
[47]
Given that the family’s passport applications
were prepared after they obtained their Canadian citizenship, they are not
directly relevant to the question of whether they obtained their citizenship as
a result of false representations. However, the inaccuracies in the passport
applications, each of which was signed by the defendants who solemnly declared
that the statements made in the applications were true, are evidence of
additional attempts by the family to mislead Canadian immigration authorities
as to their whereabouts during the relevant periods.
[48]
In the circumstances, Mr. Houchaime has not
persuaded me that there exists a genuine issue for trial in relation to the
Minister’s action. I am satisfied that he obtained his Canadian citizenship as
a result of false information in his citizenship application and summary
judgment will be granted declaring this to be the case.
[49]
Before turning to review the evidence regarding
the other three members of the family, I would note that no evidence has been
provided by any of them with respect to the truth of the contents of each of
their citizenship applications. The onus on a party to “put
their best foot forward” in response to a motion for summary judgment: F.
Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology, Inc., 165 F.T.R.
74 at paras. 12 and 27, [1999] F.C.J. No. 526. However, the three other
defendants rely only on Mr. Houchaime’s affidavit, and, in particular, his
vague and unsupported assertion of reliance on the immigration consultant.
C.
Jacqueline El-Ksayer
[50]
Jacqueline El-Ksayer is Mr. Houchaime’s wife.
Her citizenship application states that she was resident in Canada for 1,176
days during the relevant period, and that she was absent from Canada on only
seven occasions totalling 133 days during the four year period immediately
prior to her application for citizenship in December of 2008.
[51]
However, the UAE travel history for Ms.
El-Ksayer reveals that after landing in Canada in August of 2004, Ms. El-Ksayer
then returned to Dubai on September 7, 2004. The record further reveals that
she remained in the UAE for most of the next four years, interrupted only by
several short absences, particularly in the summer months. Once again, Ms.
El-Ksayer’s travel history bears no relationship to the Canadian residence
declared in her citizenship application.
[52]
Ms. El-Ksayer has not denied that her
citizenship application contains false representations and she has not
persuaded me that there exists a genuine issue for trial in relation to the
Minister’s claim for a declaration to that effect. I am satisfied that she
obtained her Canadian citizenship as a result of false information in her
citizenship application and summary judgment will be granted against her
declaring that to be the case.
D.
Jennifer Hochaime
[53]
Jennifer Hochaime is one of Mr. Houchaime and
Ms. El-Ksayer’s daughters. Although she was a child when she was landed in Canada, she had attained the age of majority by the time that she signed her application
for Canadian citizenship on September 25, 2008.
[54]
Jennifer’s citizenship application states that
she was resident in Canada for 1,126 days during the relevant period, and that
she was only absent from Canada on three occasions for a total of 134 days
during the four year period immediately prior to her citizenship application.
[55]
However, Jennifer’s UAE travel history reveals
that after landing in Canada in August of 2004, she promptly returned to Dubai on September 7, 2004, remaining there until July 16, 2005. She left Dubai for a couple of weeks in the summer of 2005, returning on August 13, 2005. The
pattern then repeated itself, with Jennifer remaining in Dubai between August
of 2005 and July of 2006, and a similar travel pattern is demonstrated in 2007.
[56]
Jennifer’s travel pattern is thus consistent
with someone attending school in Dubai. This is not a mere suspicion on my
part, however. The uncontroverted evidence adduced by the Minister demonstrates
that Jennifer was in fact attending the Emirates Academy of Hospitality
Management from October of 2004 to July of 2008. As part of her studies at the Emirates Academy, Jennifer spent the period from January of 2007 to November of 2007
participating in an exchange program at the École hotelière de Lausanne in Switzerland, following which she once again returned to Dubai.
[57]
The Minister has produced written confirmation
from both of these institutions confirming that Jennifer was physically present
at each institution during the periods in question. These are periods when, according
to her citizenship application, Jennifer was supposed to be residing in Canada.
[58]
Once again, Jennifer has not challenged this
evidence in any meaningful way. As a consequence, she has not persuaded me that
there exists a genuine issue for trial in relation to the Minister’s action. I
am satisfied that Jennifer Hochaime obtained her Canadian citizenship as a
result of false information in her citizenship application and summary judgment
will be granted against her declaring that to be the case.
E.
Lynn Hochaime
[59]
Lynn Hochaime is Mr. Houchaime and Ms.
El-Ksayer’s other daughter. Like her sister Jennifer, Lynn was a child at the
time that she was landed in Canada, although she too had attained the age of
majority by the time that she signed her application for Canadian citizenship
on March 18, 2008.
[60]
Lynn’s citizenship
application states that she was resident in Canada for 1,222 days during the
relevant period, and that she was only absent from Canada on three occasions
totalling 87 days during the four year period immediately prior to signing her
citizenship application.
[61]
However, Jennifer’s UAE travel history reveals
that after landing in Canada in August of 2004, she returned to Dubai on September 7, 2004 – the same day that her sister and mother returned to the UAE. Lynn remained in Dubai for most of the next four years, with short trips out of the
country, particularly in the summer months.
[62]
Once again, Lynn’s travel pattern is consistent
with someone attending school in the UAE. Indeed, the Minister has obtained
evidence that she was in fact attending high school at the Al Mawakeb School in
Dubai until her graduation from that institution in 2007.
[63]
Lynn’s citizenship
application indicates that she began attending McMaster University in Hamilton, Ontario in September of 2006. However, information obtained from the University
by the Minister reveals that she did not start at McMaster until September of
2008, a fact that is confirmed by Lynn’s own online “LinkedIn” profile.
[64]
As was the case with the other members of her
family, Lynn has not challenged the evidence against her in any meaningful way.
As a consequence, she has not persuaded me that there exists a genuine issue
for trial in relation to the Minister’s action. I am satisfied that Lynn
Hochaime obtained her Canadian citizenship as a result of false information in
her citizenship application and summary judgment will be granted against her
declaring that to be the case.
VII.
Should Summary Judgment be Granted in Relation
to the Defendants’ Counterclaim?
[65]
The Minister also seeks summary judgment
dismissing the defendants’ counter-claim. As will be explained below, I am
satisfied that summary judgment should also issue with respect to the
Counterclaim as none of the defendants have demonstrated the existence of a triable
issue in this regard.
[66]
In their Counterclaim, the defendants assert
that sections 10, paragraph 18(1)(b) and subsection 18(3) of the Citizenship
Act are inconsistent with section 7 of the Canadian Charter of Rights
and Freedoms and violate their liberty interests.
[67]
Canadian citizenship is a valuable privilege (Benner
v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at para. 72, [1997]
S.C.J. No. 26), and the stakes are undoubtedly high for the defendants.
Nevertheless, it must be kept in mind that the Minister is trying to deprive the
defendants of their citizenship through this proceeding, and not their
liberty. Indeed, the defendants have not explained how their liberty interests
have been engaged by this proceeding.
[68]
The defendants have, moreover, acknowledged that
the Federal Court of Appeal “has consistently ruled that
section 7 [of] the Charter [does] not apply to revocation proceedings in the
Federal Court”, suggesting that this Court should, however, “revisit these issues in light of the facts and arguments”
advanced by the defendants: Defendants’ Memorandum of Fact and Law at para. 17.
[69]
The Federal Court of Appeal has indeed been
clear that citizenship revocation proceedings do not engage section 7 of the
Charter: see, for example, Luitjens, above.
[70]
Clearly, it is not open to this Court to “revisit” the binding rulings of the Federal Court of
Appeal. Moreover, even if the Court were able to do so, in the absence of any
explanation as to how the defendants’ section 7 interests have been engaged by
the revocation process in this case, the defendants have simply not established
any basis for their section 7 Charter claim, and no triable issue has
been raised in this regard.
[71]
Consequently, an order will issue dismissing the
defendants’ Counterclaim.
VIII.
Costs
[72]
The nature and extent of the defendants’ false
representations are such that the Minister should be entitled to his solicitor
and client costs of these proceedings.
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