Ottawa, Ontario, March 12, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] Karl Wayne Babcock is a self-represented party (the Applicant). He applied for Canadian citizenship under paragraph 5(2)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act). His application was received by the Respondent on September 14, 2004 (the Application) but he was subsequently advised that his Application had not been processed because the transitional provisions under paragraph 5(2)(b) of the Act had expired on August 14, 2004 (the Expiry Date).
[2] The Applicant seeks judicial review of the decision not to process his Application (the Decision) alleging that the Respondent breached its duty to accord him procedural fairness by not giving him notice of the Expiry Date.
THE FACTS
[3] The Applicant was born on November 2, 1970 in Dearborn, Michigan. He claims an entitlement to Canadian citizenship derivatively through the citizenship of his mother, who was born in Canada on August 15, 1949.
[4] Paragraph 5(2)(b) of the Act (the Provision) gave persons who were born outside Canada, between January 1, 1947 and February 14, 1977 to a mother who was a Canadian citizen, the right to apply for Canadian citizenship.
[5] However, applications under the Provision were to be made before February 15, 1979 or within such extended period authorized by the Minister of Citizenship and Immigration (the Minister). After 1979, the Minister granted a series of extensions.
[6] The Respondent’s affidavit for this application for judicial review was sworn by Margaret Dritsas on August 24, 2006 (the Respondent’s Affidavit). She deposed that in 1999, the Minister decided that the Provision would not be extended indefinitely. Thereafter, the Department of Citizenship and Immigration (CIC) published a brochure, in hard copy, which indicated that the right to apply under the Provision would “eventually” expire (the Brochure). The Brochure invited potential applicants for Canadian Citizenship to apply “soon”. The Brochure may also have appeared on the internet from 2000 to 2004. However, a copy was not exhibited as part of the Respondent’s Affidavit. Instead, it was included in the Respondent’s Record. That copy shows that it was first published in January of 2000 and was revised on June 1, 2004. The revision involved the addition of text which said that “The transitional provisions expire August 14, 2004”.
[7] The Respondent’s Affidavit said that brochures and posters announcing the Expiry Date were placed in Canadian missions abroad and that media outlets were contacted. The Respondent’s record (but not its Affidavit) includes an article from the Toronto Star Newspaper of May 29, 2004 which describes the Expiry Date and an internet notice of June 1, 2004 which also gave the Expiry Date.
[8] In this case, the difficulty arose because information about the Expiry Date did not reach the Applicant. That was the case because the Applicant lived in Michigan until the end of July 2004 and had no occasion to access the internet, visit a Canadian mission or read the Toronto Star.
[9] However, when he came to Windsor, Ontario by bus on July 31, 2004, the Applicant immediately contacted CIC by telephone to ask about the procedure for making a citizenship application under the Provision. However, instead of citizenship materials, he was sent refugee application forms. When, after a second telephone call, he was again sent refugee forms, he went to the Windsor CIC office in person.
[10] The evidence varies slightly about the exact date of this visit but the Respondent acknowledges that it was definitely before August 14, 2004. At the CIC office, the Applicant was served by a woman (the CIC Official) who provided him with a pamphlet in hard copy entitled “On-Line and Call Centre Services” (the Pamphlet). It indicated that the Applicant needed Application Kit CIT 0303E (the Kit) and showed him how to download the Kit from CIC’s website. However, the Pamphlet did not mention the Expiry Date. The uncontested evidence of the Applicant’s friend Don Rivard in his affidavit sworn on June 23, 2006 is that the CIC Official did not warn the Applicant that the Expiry Date was imminent. This was the case even though a CIC document entitled “Operation Bulletin” included the following statements in connection with the Provision and the Expiry Date:
All staff should encourage applicants who believe that they fall under these provisions to submit their applications on or before August 14, 2004. Given the expiry of these provisions, it is very important to accept these applications and to forward them to CPC Sydney.
Please inform clients that fall within these categories of the expiry date.
[11] The Applicant downloaded the Kit which included an application form and the Respondent acknowledges that he must have taken this step before the Expiry Date because the Kit would not have been available thereafter. The Kit did not mention the Expiry Date.
[12] CIC’s Case Processing Centre received the completed Application on September 14, 2004.
[13] Fifteen months later, in a letter dated January 30, 2006, CIC informed the Applicant that his Application could not be processed because it had been received one month after the Expiry Date.
THE RESPONDENT’S SUBMISSIONS
[14] The Respondent says that the doctrines of legitimate expectation and procedural fairness do not apply in the context of legislative changes enacted by Parliament. In this regard, the Respondent relies on the Supreme Court of Canada’s decision in Attorney General of Canada v. Joseph Patrick Authorson et al, [2003] 2 S.C.R. 40. It concerned legislation passed by the Federal Government in 1990 which extinguished claims to interest which had been owed to veterans. In 1999, a class action was certified in which veterans claimed that they had a right to notice and to a hearing before legislation was enacted which expropriated their funds.
[15] The Supreme Court held that the legislative decision making process is not subject to a duty of fairness and the Respondent says that this ruling means that no duty of fairness was owed to the Applicant by CIC in this case.
[16] I do not agree. This case has nothing to do with the legislative process. There is no allegation that the Applicant was entitled to prior notice of the Minister’s decision to set the Expiry Date. Rather, this case concerns CIC’s handling of a particular application which was at risk of being nullified by the Expiry Date.
[17] The Respondent also submits in the alternative that, if due process is owed, it should be evaluated in a context in which the Applicant has the following options:
1. The Applicant can make an inland application for permanent residence under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and, if successful, can later apply to become a citizen.
2. The Applicant can return to the United States and apply for permanent residence from there and, if successful, can later apply for citizenship.
3. The Applicant can apply for citizenship under subsection 5(4) of the Act which allows the Minister to grant citizenship in cases of undue hardship.
[18] However, the Respondent acknowledges that all these options involve the exercise of discretion whereas, if the Applicant can show that he is qualified under the Provision, he has the right to become a citizen. In these circumstances, I am not persuaded that the options the Respondent has identified are relevant.
[19] Finally, the Respondent criticizes the Applicant for not being diligent saying that he could have applied at any time since the Provision was introduced in 1977 and instead waited until the Expiry Date was near. However, the Applicant had no knowledge of the Expiry Date and further, in my view, diligence only becomes relevant once an applicant decides to apply. In this case, it is clear that after his arrival in Canada, the Applicant pursued his application with utmost diligence.
CONCLUSION
[20] I am satisfied that the Respondent breached the duty of procedural fairness owed to the Applicant when, in contravention of CIC’s Operational Bulletin, it failed to alert him to the Expiry Date either when he downloaded the Kit or when he visited the CIC’s Windsor office.
JUDGMENT
The Respondent is to consider the Applicant’s Application under the Provision as if the Application had been received before the Expiry Date.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1170-06
STYLE OF CAUSE: WAYNE KARL BABCOCK v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 12, 2006
REASONS FOR JUDGMENT: SIMPSON J.
APPEARANCES:
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Mr. Wayne Karl Babcock
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Ms. Negar Hashemi
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SOLICITORS OF RECORD:
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Mr. Wayne Karl Babcock Kingsville, Ontario Self represented
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John H. Sims Q.C. Deputy Attorney General of Canada Department of Justice Toronto, Ontario
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