Date: 19980114
Docket: T-300-97
| IN THE MATTER OF a revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33; |
| IN THE MATTER OF a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29; |
| AND IN THE MATTER OF a reference to the Court pursuant to rule 920 of the Federal Court Rules. |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SERGE KISLUK
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] On April 4, 1997, McKeown J. issued an order in this revocation of citizenship proceeding which provided under paragraph 7 that: "The applicant shall complete its oral examination for discovery by January 23, 1998." The respondent now moves to strike this paragraph of the order.
[2] On May 15, 1997, in The Minister of Citizenship and Immigration v. Vitols (T-310-97), another matter concerning the revocation of citizenship, McKeown J. ordered that examinations for discovery shall not be permitted by either party. The substantive portion of his brief reasons state:
| The respondent submitted that in disciplinary matters, examinations for discovery are generally not permitted. The party sought to be disciplined has already been questioned extensively, formally or informally, as part of the investigation. As stated earlier, the respondent has already provided the R.C.M.P. with responses during two interviews. Accordingly, the discovery process followed by administrative tribunals in disciplinary matters is relevant to the present case. Furthermore, examinations for discovery are not usually appropriate for hearings of a summary nature such as hearings under Rule 920 of the Federal Court Rules. |
| In my view, in the circumstances of this case, the respondent should not be examined for discovery. In light of the respondent's submission that neither party should be examined for discovery, and my views with respect to discovery of the respondent, the respondent shall not be permitted to examine an informed officer of the Crown. |
It is on the basis of this subsequent decision in Vitols that the respondent in this case seeks to have struck that portion of the order of April 4, 1997 of McKeown J. which requires that he be examined for discovery.
[3] The respondent cites no provision in the Federal Court Act or the Federal Court Rules in support of his motion which, in effect, seeks to strike or to revoke an order of this Court. Counsel for the respondent, and I agree with him in this regard, did not rely on the provisions of Rule 337(5) concerning the reconsideration of the terms of judgments or Rule 1733 concerning for the reversal or variation of a judgment or order on the basis of new facts subsequently discovered. Neither of these rules applies to the respondent's motion. Rather, the respondent submits that what McKeown J. stipulated under the style of an order is in reality a direction which is subject to variation from time to time. The respondent also relies on other orders which have been issued varying the tentative schedule that had been set in the order of April 4, 1997 of McKeown J.
[4] The applicant argues that the principle of res judicata constitutes a bar to this Court granting the relief sought by the respondent. The applicant adds that the respondent is also estopped from objecting to discovery at this time when he failed to do so before McKeown J. In the view of the applicant, this provision of the order of April 4, 1997 of McKeown J. cannot be revoked by another order of this Court.
[5] The order of April 4, 1997 was issued after a case management conference of April 2, 1997 which was requested by the applicant's counsel in a letter of March 25, 1997. The respondent's counsel suggested in his reply of April 1, 1997 that such a meeting would be premature. A direction was issued that the case management conference take place on April 2, 1997.
[6] The case management conference focussed on the determination of the appropriate procedures to be followed for the management of this case and the setting of a schedule for those procedures. Division E of the Federal Court Rules governing citizenship appeals is not in itself a complete code of procedure for proceedings seeking the revocation of citizenship. It was in this context that Mr. Justice McKeown raised the issue of oral discovery and, after a brief and not controversial exchange between the parties, the oral examination of the respondent was scheduled to be completed prior to January 23, 1998. Mr. Justice McKeown's order of April 4, 1997 confirmed the issues raised during the case management conference, including the one concerning the applicant's oral discovery of the respondent. There was no appeal from this order.
[7] Rules 327.1 and 327.2 provide that orders and directions may be issued, upon motion or upon the initiative of the designated judge, concerning the management of proceedings. Rule 473 provides that the Court, "upon the consent of all interested parties", may give directions as to the procedure to govern a proceeding. Directions made pursuant to Rule 473 may be "varied or revoked by subsequent order of the Court". The parties did not refer to these Rules in their submissions.
[8] Neither party filed any motion prior to the case management conference of April 2, 1997. The applicant's letter of March 25, 1997 was a general request to address the scheduling and procedure to be followed in this case with no particular reference to examinations for discovery or any other specific issue. In the absence of any specific lis between the parties, I choose to dispose of this motion on grounds other than res judicata.
[9] In Vitols, Mr. Justice McKeown concluded "in the circumstances of [that] case" that the respondent should not be examined for discovery. Earlier, he noted that examinations for discovery are not "usually" appropriate for hearings of a summary nature such as those under Rule 920.
[10] In my view, McKeown J. was not setting out any absolute principle applicable in every revocation of citizenship case. On September 19, 1997, in The Minister of Citizenship and Immigration v. Maciukas (T-1451-97), another revocation of citizenship case, McKeown J. issued an order similar to his order of April 4, 1997 in this case and required the respondent to submit to oral examination for discovery. On December 23, 1997, in a trilogy of revocation of citizenship cases, The Minister of Citizenship and Immigration v. Dueck (T-935-95), The Minister of Citizenship and Immigration v. Oberlander (T-866-95) and The Minister of Citizenship and Immigration v. Tobiass (T-569-95), Noël J. ordered oral discovery of the applicant and the respondent in his adjudication of contested motions seeking orders for directions on a number of specific procedural issues.
[11] The respondent, other than characterizing the decision of McKeown J. as a direction rather than an order, has not asserted any provision which would allow another judge of this Court to revoke the applicant's right to examine for discovery the respondent. This right was created in this proceeding by the order of McKeown J. I know of no authority which would allow me to revoke this order at this stage of the proceedings and in the absence of new facts subsequently discovered. In any event, even if I had the power to grant the relief sought by the respondent, I would choose not to do so in the circumstances of this case.
Judge
Ottawa, Ontario
January 14, 1998