Ottawa, Ontario, November 30, 2006
PRESENT: THE HONOURABLE MR. JUSTICE ROBERT L. BARNES
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an appeal by Michelle Collier from an unfavourable decision of the Citizenship Court rendered on January 10, 2006. This is Ms. Collier’s second appeal in connection with her application for Canadian citizenship which she first made on September 19, 2003. The appeal is brought under section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (Act).
Procedural Background
[2] At issue throughout this proceeding is the question of Ms. Collier’s Canadian residency and, specifically, whether she had complied with section 5(1)(c) of the Act which requires 3 years of residency in the 4 years preceding an application for the grant of citizenship.
[3] It is undisputed that, for much of the time since Ms. Collier and her family arrived in Canada in 1999, she has lived elsewhere. Between 1998 and 2002 she was living mainly in Florida attending the University of South Florida on an athletic scholarship. After 2002 Ms. Collier played professional volleyball in a number of countries and, in the summer of 2003, she trained with the Canadian National Women’s Volleyball team. It was on the advice and recommendation of Volleyball Canada that she made her application for citizenship in the hope of playing for Canada.
[4] The first citizenship decision denied Ms. Collier’s application on the basis that she had not “regularly, normally or customarily” lived in Canada during the required residency period. The Citizenship Court described the legal test it was applying as follows:
In Re Koo [1992] F.C.J. No. 1107, Reed J. after reviewing the case law interpreting the residence requirement set out in the Citizenship Act notes that the jurisprudence which is now firmly entrenched does not require physical presence for the whole1,095 days and concludes that the residency test can be articulated as follows: is Canada the place where the applicant “regularly, normally or customarily lives”? or another formulation of the same test: Is Canada the country in which the applicant has centralized his or her mode of existence?...
[5] On appeal, Justice Paul Rouleau set aside the Citizenship Court decision on the ground that it had failed to properly apply the six factors identified in Re Koo, (1992) 59 F.T.R. 27 for establishing Canadian residency: see Collier v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1866, 2005 FC 1511. Although Justice Rouleau found several errors in the application of the Koo factors to the evidence, he was particularly concerned with the failure to identify an index country with which Ms. Collier had had a stronger connection than Canada. He held that it was also an error for the Citizenship Court to treat Ms. Collier’s career as a surrogate for an index country. Justice Rouleau concluded his decision as follows:
19 Given my assessment of the Koo factors in the present case, I am convinced that the decision against the applicant cannot be allowed to stand. The matter is remitted to a different Citizenship Judge, to be considered with respect to the reasons I have set out in this Order.
Justice Rouleau’s Order set out a similar direction to the Citizenship Court to reconsider the case “having regard to the present Reasons for Order”.
[6] When Ms. Collier’s citizenship application was redetermined, the Citizenship Judge did not apply the Re Koo decision, above, but, instead, applied the decision of Justice Francis Muldoon in Re Pourghasemi (1993), 62 F.T.R. 122, [1993] F.C.J. No. 232. The Pourghasemi decision strictly equated residency with actual physical presence in Canada and, on that standard, Ms. Collier did not qualify. The Citizenship Judge went on, in the alternative, to consider Ms. Collier’s situation against the somewhat more flexible test of residency described in Re Papadogiorgakis, [1978] F.C.J. No. 31, [1978] 2 F.C. 208 but still found her claim to be unmeritorious. Ms. Collier’s failure to qualify under the Papadogiorgakis test was based on the fact that she had not established her Canadian residency before departing for school in Florida and did not do so until returning to Canada in May, 2003.
Issues
[7] Ms. Collier has challenged the second decision of the Citizenship Court on a number of grounds. She contends that the hearing of her case was perfunctory and abbreviated and not in accordance with the duty of fairness. She also argues that the Citizenship Court erred by “skipping back and forth” between various accepted approaches for establishing residency as in the case of Canada v. Wall, [2005] F.C.J. No. 146, 2005 FC 110 at para. 22. Finally, she says that the Citizenship Court erred by failing to follow Justice Rouleau’s direction on appeal to reconsider her case in accordance with his elucidation of the Koo factors.
Analysis
[8] I do not accept the Appellant’s arguments that she was denied a fair hearing or that the Citizenship Court erred in its treatment of the residency tests it adopted. There is nothing in the record to establish that Ms. Collier was denied the opportunity to make her case before the Citizenship Court. Although Ms. Collier’s affidavit describes evidence she wanted to put to the Citizenship Court, she does not assert that she was denied the opportunity to do so. The impression left is that she was waiting to be asked about certain matters and, when that did not happen, she failed to volunteer the information. It was for Ms. Collier to make out her case for citizenship and the Citizenship Court cannot be faulted for failing to anticipate or to draw out information that she believed to be important. If Ms. Collier needed more time all she needed to do was ask for it.
[9] Ms. Collier’s argument that the Citizenship Court mixed up the legal tests for residency is also without merit. All that the Citizenship Court did was to alternatively apply two of the three accepted tests for residency but it did not conflate or confuse those tests. Indeed, the decision of the Citizenship Court on the merits is thoughtful, thorough and in conformity with the legal authorities it applied.
[10] The underlying problem with this case stems from the lack of unifying jurisprudence in this Court and in the Citizenship Court concerning the test for establishing Canadian residency. Had Justice Rouleau not given any direction to the Citizenship Court to apply the Koo factors, the approach taken here could not be faulted. That is so because this Court has said that the Citizenship Court is free to apply any of three judicially approved residency tests: see Rizvi v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2029, 2005 FC 1641 at para. 12; Eltom v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1979, 2005 FC 1555 at para. 28 and Canada (Minister of Citizenship and Immigration) v. Wall, [2005] F.C.J. No. 146, 2005 FC 110 at paras. 11-13.
[11] However, in the face of Justice Rouleau’s direction to apply the Re Koo case to Ms. Collier’s application, it was not then open to the Citizenship Court to adopt one or both of the other residency tests. As a subordinate Court, the Citizenship Court has a legal duty to abide by the directions of this Court whether it agrees with those directions or not. Here the fundamental principle of stare decisis applies as stated by the Supreme Court of Canada in Woods Manufacturing Co. Ltd. v. The King, [1951] S.C.R. 504 at page 515:
There is this to be added. It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced, including the interpretation by this Court of the decisions of the Judicial Committee, should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all judges are liable, we must maintain the complete integrity of relationship between the courts. If the rules in question are to be accorded any further examination or review, it must come either from this Court or from the Judicial Committee.
To the same effect is the holding of the Federal Court of Appeal in Canada (Commissioner of Competition) v. Superior Propane Inc., [2003] F.C.J. No. 151, 2003 FCA 53, where Justice Marshall Rothstein stated:
[54] The principle of stare decisis is, of course, well known to lawyers and judges. Lower courts must follow the law as interpreted by a higher coordinate court. They cannot refuse to follow it: Re Canada Temperance Act, Re Constitutional Questions, Re Consolidated Rules of Practice, [1939] 4 D.L.R. 14 at 33 (Ont. C.A.), aff'd [1946] 2 D.L.R. 1 (S.C.C.); Woods Manufacturing Co. v. Canada (Attorney General), [1951] S.C.R. 504 at 515. This principle applies equally to tribunals having to follow the directions of a higher court as in this case. On redetermination, the duty of a tribunal is to follow the directions of the reviewing court.
[12] This Court’s earlier direction to the Citizenship Court to reconsider Ms. Collier’s case “with respect to the reasons” given was not an exercise of mere whimsy. The fact that the redetermination was carried out by a Citizenship Judge with a different view of the law from the first does not mean that he could ignore Justice Rouleau’s direction to apply the Koo factors.
[13] In the absence of judicial direction, the approach taken could not have been criticized because the Citizenship Judge would have been free to adopt any of the accepted legal tests for assessing Ms. Collier’s Canadian residency. It is obvious , however, that Justice Rouleau accepted as correct the decision by the first Citizenship Judge to apply the six residency factors identified in Re Koo, above; but he went on to find reviewable errors in the application of those factors to the evidence. Had Justice Rouleau remitted the case back to the first Citizenship Judge for redetermination, it is undeniable that a re-application of the Koo principles to the evidence would have been expected and required. The fact that the case was remitted to another Citizenship Judge does not and should not justify a different approach.
[14] Quite apart from Justice Rouleau’s acceptance of Koo as authoritative was the added value of ensuring consistency in the application of the law to a single case. Notwithstanding the varying approaches to the issue of residency under the Act, the direction given by Justice Rouleau afforded to Ms. Collier the benefit of a consistent approach. It does not engender confidence in the system for conferring citizenship if an applicant is, in the course of a single application, subjected to different legal tests because of the differing legal views of the Citizenship Court.
[15] I do not mean by this decision to criticize the second decision of the Citizenship Court on the merits. Indeed, that decision contains a careful and well-reasoned analysis of the legislation. It also accords with a line of analysis which is supported by jurisprudence from this Court. However, when this Court gives a direction to the Citizenship Court to apply the law in a certain way to a particular case, the principle of stare decisis obliges the Citizenship Court to abide by the direction. In short, it was not open to the second Citizenship Judge on a redetermination to ignore Justice Rouleau’s direction to apply the Koo principles to the evidence and the failure to follow that direction is an error of law.
[16] Unfortunately, it is necessary to remit this matter once again to the Citizenship Court for redetermination in accordance with Justice Rouleau’s initial direction. In order to avoid any uncertainty around the test to be applied, I will direct that this matter be remitted to the first Citizenship Judge for a reconsideration in conformity with Justice Rouleau’s direction.
[17] Given the difficulties experienced by Ms. Collier in having her application correctly dealt with, I believe this to be an appropriate case for an award of costs in her favour. I will fix costs on this appeal in the amount of $750.00 inclusive of disbursements.
JUDGMENT
THIS COURT ADJUDGES that this application be remitted to the first Citizenship Judge for a reconsideration in conformity with Justice Rouleau’s direction.
THIS COURT FURTHER ADJUDGES that the Appellant is awarded costs on this appeal in the amount of $750.00 inclusive of disbursements.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-442-06
STYLE OF CAUSE: MICHELLE COLLIER
v.
MINISITER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: NOVEMBER 28, 2006
APPEARANCES:
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SILVIA VALDMAN
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TATIANA SANDLER
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SOLICITORS OF RECORD:
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SILVIA VALDMAN, OTTAWA
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JOHN H. SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA
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