Date : 19991001
Docket : T-2065-98
BETWEEN:
HALIMO AHMED ABDULE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] The applicant has appealed, under subsection 14(5) of the Citizenship Act , R.S.C. 1985, c. C-29 as amended, from a decision of a citizenship judge dated May 15, 1998. In her decision, the citizenship judge concluded that the applicant did not have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship, as required by paragraph 5(1)(e) of the Citizenship Act. The citizenship judge also refused, under subsection 15(1), to recommend an exercise of discretion by the Minister of Citizenship and Immigration ("Minister") or by the Governor in Council, respectively under subsections 5(3) or (4). As a result, the citizenship judge decided not to approve the application for citizenship.
i) jurisdictional issue
[2] Counsel for the respondent submitted that, on an appeal brought pursuant to subsection 14(5) of the Citizenship Act, the Court has no jurisdiction to review a refusal by a citizenship judge, under subsection 15(1), to recommend an exercise of discretion by the Minister or by the Governor in Council. The central question to be addressed in determining the jurisdictional issue is the meaning of the word "decision" in subsection 14(5) of the Citizenship Act, as an appeal lies from a "decision" of a citizenship judge. In particular, it must be determined, as a matter of statutory interpretation, whether the word "decision" includes a citizenship judge's consideration of whether or not to recommend an exercise of discretion by the Minister or by the Governor in Council.
[3] The principles of statutory interpretation outlined in the leading case Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 must be followed in interpreting the scope of the right to appeal under subsection 14(5) of the Citizenship Act. In that decision, Iacobucci J., writing for the Court, outlined
the following framework for statutory interpretation, at pages 40-41:
| At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete. |
| Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: |
| Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. |
| Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103. |
| I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". |
| Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. |
[4] In considering the interpretation to be accorded to the word "decision" in the context in which it is used in the Citizenship Act, reference must be made to the legislative scheme governing the procedure to be followed on an application for citizenship and on an appeal from a refusal of an application. For the purposes of the present appeal, the relevant provisions are subsections 14(1), (2),
(3) and (5) and section 15, which provide as follows:
| 14. (1) An application for
shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application. ... (2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor. (3) Where a citizenship judge does not approve an application under subsection (2), the judge shall forthwith notify the applicant of his decision, of the reasons therefor and of the right to appeal. ... (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
... 15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require. (2) Where a citizenship judge makes a recommendation for an exercise of discretion under subsection (1), the judge shall
|
14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité avec les dispositions applicables en l'espèce de la présente loi et de ses règlements des demandes déposées en vue de:
... (2) Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge de la citoyenneté, sous réserve de l'article 15, approuve ou rejette la demande selon qu'il conclut ou non à la conformité de celle-ci et transmet sa décision motivée au ministre. (3) En cas de rejet de la demande, le juge de la citoyenneté en informe sans délai le demandeur en lui faisant connaître les motifs de sa décision et l'existence d'un droit d'appel. ... (5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas :
... 15. (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas. (2) S'il recommande l'exercice du pouvoir discrétionnaire, le juge de la citoyenneté :
|
[5] A review of the legislative scheme reveals that, under subsection 14(1) of the Citizenship Act, a citizenship judge must determine whether the applicant meets the statutory requirements for citizenship. Subsection 14(2) requires a citizenship judge to approve or not to approve the application in accordance with the "determination" made under subsection 14(1), subject to the requirements of section 15. Under subsection 15(1), "before deciding not to approve" an application, a citizenship judge must consider whether to recommend an exercise of discretion by the Minister or by the Governor in Council. In the event that a recommendation for the exercise of discretion is not made, subsection 14(2) provides that a citizenship judge must approve or not approve the application in accordance with the "determination" made under subsection 14(1). Where an application is not approved, subsection 14(3) requires a citizenship judge to notify the applicant of the "decision", the reasons in support, and the right of appeal.
[6] Subsections 14(1), (2) and (3) and section 15 of the Citizenship Act, when read in their entirety, confirm that a "decision" to reject an application is not made until after a citizenship judge has considered, under subsection 15(1), whether or not to recommend an exercise of discretion by the Minister or by the Governor in Council. In other words, the "determination" made by a citizenship judge under subsection 14(1) not to approve an application does not become a "decision" until after a citizenship judge has refused to recommend an exercise of discretion. The words "determination" and "decision" therefore have separate and distinct meanings in the legislative scheme.
[7] The interpretation that a "determination" in subsections 14(1) and (2) is not a "decision" is further reinforced when reference is made to the procedure prescribed in subsection 15(2). In circumstances where a recommendation is made for the exercise of discretion, a citizenship judge is required by subsection 15(2), among other things, to approve or not to approve the application "...in accordance with the decision that has been made in respect of his recommendation..." by the Minister or by the Governor in Council. In other words, a citizenship judge who has recommended an exercise of discretion is bound by and must adopt the discretionary decision made by the Minister or by the Governor in Council, as the case may be. The requirement that a citizenship judge must adopt and apply the "decision" of the Minister or the Governor in Council, as the case may be, confirms that the "determination" referred to in subsections 14(1) and (2) does not constitute a "decision".
[8] Given the clear distinction in the legislative text between a "determination" and a "decision", I have concluded that, for the purposes of an appeal under subsection 14(5) of the Citizenship Act, the word "decision" was intended to encompass both the "determination" made by a citizenship judge and the refusal to recommend an exercise of discretion. In my opinion, that interpretation is also supported by the French version of the legislative text.
[9] Furthermore, the purpose and object of the Citizenship Act, simply put, is to provide a legislative framework governing matters pertaining to Canadian citizenship, including the criteria that must be met and the procedure that must be followed prior to the granting of citizenship to a landed immigrant. In my opinion, it would not in any manner defeat the purpose of the Citizenship Act or render any aspect of it futile to interpret the scope of an appeal under subsection 14(5) as including a review of the manner in which a citizenship judge exercised the discretionary power under subsection 15(1). To the contrary, such an approach is, in my opinion, consistent with the requirement in section 12 of the Interpretation Act, R.S.C. 1985, c. I-21, as amended, that an enactment "...shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
[10] My conclusion that an appeal under subsection 14(5) of the Citizenship Act encompasses both the "determination" and the consideration of whether to recommend an exercise of discretion by the Minister or by the Governor in Council is consistent with the approach taken by Strayer J. (as he then was) in Re Khat (1991), 49 F.T.R. 252 (T.D.). In that case, Strayer J. concluded that it was open to the Court to review the manner in which the discretion was exercised under subsection 15(1), in that "...the proper exercise of the discretion is a precondition to the exercise of the power to make a decision under subsection 14(2)...". Strayer J. stated as follows, at pages 253 - 254:
| Section 14(2) provides, however, that as a precondition to making a decision under that subsection, the citizenship judge must consider whether or not to make a recommendation under subsection 15(1). While it is not for this court, sitting on appeal, to review the conclusion of the citizenship judge as to whether a recommendation should be made, in a proper case it may be open to this court to refer the matter back to the citizenship judge if this court is not satisfied that relevant factors have been taken into account in the exercise of that discretion. That appears to be the rationale for the decision by my colleague Rouleau J. in Re Hanne H. Hokayem (September 19, 1990, F.C.T.D. File T-583-90, 37 F.T.R. 49). In that case he referred the matter back to the citizenship judge and "urged" that judge to consider certain factors outlined in the reasons of Rouleau J. Similarly in this case I have ordered that the matter be referred back to the citizenship judge for reconsideration as to whether the discretion under subsection 15(1) should have been exercised in favour of the appellant before making the decision under subsection 14(2), having particular regard to the applicant's apparent lack of ability to become literate in an official language of Canada. Because the exercise of that discretion is uniquely a matter for the citizenship judge, it is of course for her to satisfy herself from the evidence as to the inability referred to, and for her to determine whether such a factor warrants a recommendation on compassionate grounds. |
| I am taking this step because it is not apparent from the reasons for the citizenship judge's decision given to the appellant, nor from those given to the Minister, that this obviously relevant factor had been taken into account. Indeed there is no indication as to what factors were taken into account. As the proper exercise of the discretion is a precondition to the exercise of the power to make a decision under subsection 14(2), it is important that this court be satisfied on appeal that the discretion has in fact been exercised. |
[11] The approach taken by Strayer J. in Re Khat, supra was adopted by Richard J. (as he then was) in Re Kamber (1995), 27 Imm. L.R. (2d) 20 (F.C.T.D.).1
[12] There are other decisions in which the Court has concluded that, on a plain reading of the statutory provisions, the "decision" of a citizenship judge means only the decision to approve or not to approve the application. [See, for example, Re Akins (1978), 87 D.L.R. (3d) 93 at 95 (F.C.T.D.); Canada (Minister of State Multiculturalism and Citizenship) v. Shahkar (1990), 11 Imm. L.R. (2d) 234 at 238 (F.C.T.D.); Re Khouri (1991), 15 Imm. L.R. (2d) 18 at 23 (F.C.T.D.)]. Regrettably, I am unable to agree with the interpretation accorded to the legislative scheme in those cases.
[13] Prior to concluding my analysis of the jurisdictional issue, I wish to address a submission advanced by counsel for the respondent in which he relied on the analysis in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, concerning the meaning of the word "recommendations" in subsection 52(2) of the Canadian Security Intelligence Service Act, R.S.C. 1985 c. C-23, as amended. In interpreting "recommendations", as it appeared in that enactment, Cory J., writing for the majority, considered the Canadian Security Intelligence Service Act "...as a whole in order to ascertain its aim and object" (page 398). In interpreting the word "recommendations" in the context in which it was used, the Court gave the term its "ordinary meaning". In that regard, Cory J. stated as follows at pages 399-400:
| ... The simple term "recommendations" should be given its ordinary meaning. "Recommendations" ordinarily means the offering of advice and should not be taken to mean a binding decision. I agree with the conclusion of Dubé J. of the Trial Division who noted, at p. 92, that: |
| The grammatical, natural and ordinary meaning of the word "recommendation" is not synonymous with "decision". The verb "to recommend" is defined in the Oxford English Dictionary as "to communicate or report, to inform". In Webster's Third New International Dictionary it is defined as "to mention or introduce as being worthy of acceptance, use, or trial; to make a recommendatory statement; to present with approval; to advise, counsel". |
Counsel for the respondent relied on the statement in Thomson v. Canada (Deputy Minister of Agriculture), supra, that a recommendation is not a binding decision, in order to support his position that a citizenship judge's consideration of whether to recommend an exercise of discretion cannot constitute a "decision" for the purposes of an appeal.
[14] Having considered the approach taken by the majority of the Supreme Court of Canada in Thomson v. Canada (Deputy Minister of Agriculture), supra, I accept that the word "recommend", as it appears in subsection 15(1) of the Citizenship Act, should be given its ordinary meaning of "offering advice". Indeed, to adopt any other interpretation would lead to a nonsensical result. However, to interpret the word "recommend" in its ordinary sense does not alter the fact that, in the context of the legislative scheme in the Citizenship Act, a citizenship judge's consideration of whether to recommend an exercise of discretion forms a part of the "decision".
[15] Finally, my conclusion that a recommendation may constitute a "decision" for the purposes of review or appeal is supported by the decision Moumdjian v. Security Intelligence Review Committee et al. (A-1065-88, July 19, 1999, F.C.A.), in which Robertson J.A., writing for the Court, concluded at page 15 that "[t]he jurisprudence reveals that the term "order or decision" has no fixed or precise meaning but, rather, depends upon the statutory context in which the advisory decision is made, having regard to the effect which such decision has on the rights and liberties of those seeking judicial review".
ii) substantive issue
[16] Counsel for the applicant submitted that the citizenship judge erred in refusing to recommend an exercise of discretion by the Minister or by the Governor in Council by ignoring relevant evidence submitted at the hearing, namely two letters from a physician indicating that the applicant had certain medical problems which prevented her from answering the questions posed at the hearing.
[17] In her decision, the citizenship judge found that the applicant did not have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship. She further stated as follows:
| Pursuant to Subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for an exercise of discretion under Subsections 5(3) and 5(4) of the Act. Subsection 5(3) of the Act confers discretion to the Minister to, among other things, waive on compassionate grounds, in the case of any person, the knowledge requirement you failed to meet. As to Subsection 5(4) of the Act, it empowers the Governor in Council to direct the Minister to grant Citizenship to any person in cases of special and unusual hardship or to reward services of an exceptional to Canada. |
| I considered at the hearing whether there were any circumstances that could justify me in making a recommendation such as: |
| a) a mental disability; |
| b) a physical disability or disease severe enough to impair |
| the learning process; |
| c) advanced age. |
| with respect to Subsection 5(3). |
| Since you are unable to provide me with any evidence in that regard, I see no reason to make a recommendation under either of Subsections 5(3) or 5(4). |
| Pursuant to Subsection 14(3) of the Citizenship Act, you are, therefore, advised that, for the above reasons, your application for Citizenship is not approved. |
[18] In outlining her reasons for refusing to make a recommendation for the exercise of discretion, the citizenship judge noted that the applicant had failed to provide "any evidence" to establish, among other things, that she had "a physical disability or disease severe enough to impair the learning process". However, to the contrary, the applicant had adduced two letters from a physician outlining medical reasons concerning her inability to learn. As a result, the statement of the citizenship judge that the applicant had not adduced "any evidence" establishes unequivocally that she either failed to consider relevant evidence or misapprehended the evidence before her. The citizenship judge therefore erred either by failing to consider the medical evidence or by misapprehending it.
[19] The appeal is allowed. The matter is remitted to the citizenship judge with the direction that she reconsider, under subsection 15(1) of the Citizenship Act, whether to make a recommendation for the exercise of discretion by the Minister or by the Governor in Council.
| D. McGillis |
| Judge |
OTTAWA
October 1, 1999
__________________1 See also Re Salon (1978), 88 D.L.R. (3d) 238 (F.C.T.D.) in which Thurlow A.C.J. (as he then was) stated as follows at pages 241-242: In Re Salon, Thurlow A.C.J. wrote that: ... the Court is vested with full power to do all that is right and just according to the law and for that purpose to do or to correct anything that the Judge from whose decision the appeal is taken was empowered or required to do in reaching his decision. One of the things the Citizenship Judge must do before declining to approve an application is consider whether to make a recommendation for the exercise of the powers vested in the Minister and the Governor in Council... In my opinion, on an appeal from a decision refusing approval of an application after declining to make a recommendation, this Court has both the authority and the duty to consider and to correct, if necessary, both the decision of the Citizenship Judge on whether the statutory requirements have been met and the decision not to recommend the exercise of the power of the Minister or the Governor in Council...