Date: 20000504
Docket: T-453-00
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
JACOB FAST
Defendant
REASONS FOR ORDER
[Delivered from the Bench on Thursday,
April 27, 2000, as edited]
LEMIEUX J.:
[1] I am ready to render judgment on Mr. Fast's motion for a stay of proceedings in the reference, that is, court file No. T-453-00. My decision is that the stay application is dismissed.
[2] The defendant, Jacob Fast, is an 89-year-old Canadian citizen born in the Ukraine, who was notified in September of 1999 that the plaintiff, the Minister of Citizenship and Immigration (the "Minister") intended to make a report under the Citizenship Act (the "Act") to the Governor-in-Council seeking revocation of his citizenship granted in 1954 on two grounds related to his allegedly having been admitted to Canada for permanent residence and having obtained Canadian citizenship by false representations or fraud or knowingly concealing material circumstances in failing to divulge certain information to Canadian officials (the "Notice").
[3] That Notice first said Mr. Fast had not divulged that he was a German citizen and, therefore, an enemy alien inadmissible to Canada. The Notice then said that Mr. Fast failed to divulge his activities during the Second World War, including (a) his collaboration with the German occupation authorities in the Ukraine, (b) his association with the German-sponsored indigenous auxiliary police force in a location in the Ukraine and his association with the German security police and security service.
[4] Section 10 of the Act provides that, subject to section 18 of that Act, the Governor-in-Council, on a report from the Minister, may revoke the citizenship of a person if satisfied that such citizenship was obtained by false representation or fraud or by knowingly concealing material circumstances.
[5] Section 18 of the Act, on the other hand, provides that the Minister shall not make a report under section 10 to the Governor-in-Council unless the Minister has given notice of his intention to do so to the person affected and 30 days have gone by. The 30-day time frame allows the person affected to request the Minister to refer the case to the Court.
[6] Mr. Fast did make such a request through his solicitor's letter of October 25, 1999, but without prejudice to his bringing on an application seeking a ruling to set aside the Notice on grounds that the said Notice was void, ineffective and unfair.
[7] Indeed, on October 29, 1999, Mr. Fast, as applicant in this Court in court file T-1892-99, launched a judicial review application seeking to set aside the Notice. On December 3, 1999, the Minister moved to strike this judicial review proceeding in that court file and this matter was heard by me on April 10th, 11th and today.
[8] Then on March 3, 2000, pursuant to Rules 171 and 169 of the Federal Court Rules, 1998, (the "Rules") the Minister filed a statement of claim in court file T-453-00 naming Jacob Fast as defendant and seeking from this Court, pursuant to paragraph 18(1)(b) of the Act, a finding that Mr. Fast had obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[9] I am going to address the nature of the proceedings to which these reasons relate. By notice of motion filed on March 22, 2000, the defendant, Jacob Fast, seeks an order from this Court either staying the reference until a decision is rendered by this Court in his judicial review application " that is, court file T-1892-99 " or, alternatively, until five days following this Court's decision on the Minister's motion to quash the judicial review proceedings, and I have determined that I am going to reserve on that matter.
[10] The defendant relies on section 50(1)(b) of the Federal Court Act. The defendant's motion for a stay was heard by me at the same time as the Minister's motion to quash the judicial review proceedings.
[11] As noted, the Rules now provide in section 169 of those Rules that Part 4 dealing with actions applies to all references under section 18 of the Act and that by sections 171 and 63 of those Rules, an action is commenced by way of a statement of claim in Form 171A of the Rules, which was done by the Minister, as mentioned before, on March 3, 2000. The statement of claim was served on the defendant, Mr. Fast, on March 7, 2000.
[12] The Rules in Part 4 dealing with actions provide for the orderly and expeditious process of bringing an action to trial. In the normal course, the defendant would be obligated to file a statement of defence within 30 days from the service of the statement of claim. Following a reply which may be filed and served by the plaintiff 20 days after the statement of defence, affidavits of documents are to be served within 30 days of the close of pleadings and examinations for discovery follow.
[13] The Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, reiterated the tripartite test of serious issue to be tried, irreparable harm and balance of convenience, where an interlocutory injunction was brought to stay the implementation of legislation.
[14] The Supreme Court of Canada also in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, in a citizenship revocation case, considered the application of a permanent stay of proceedings in that case, which is not the case before me, where no permanent stay of proceedings is being sought, but simply a temporary stay of proceedings on the basis that I have explained in these reasons. In Tobiass, supra, the court talked about society's interest tipping the balance against a stay in the circumstances before the Court.
[15] In RJR-MacDonald, supra, in dealing with balance of convenience, Justices Sopinka and Cory enumerated, at page 350, some of the factors which must be taken into account in determining whether to grant or withhold interlocutory relief and in what circumstances would occasion greater inconvenience. They said under the heading "Balance of Inconvenience":
| Among the factors which must be considered in order to determine whether the granting or withholding of interlocutory relief would occasion greater inconvenience are the nature of the relief sought and of the harm which the parties contend they will suffer, the nature of the legislation which is under attack, and where the public interest lies. |
[16] In this case, it would appear that the matter of serious issue was conceded by the Minister, albeit a concession that was qualified in the sense that what the Minister said, if I understood Mr. Vita correctly, was that alternative relief was available in the matter.
[17] I think in this case where the defendant, Mr. Fast, fails is on the balance of convenience and, in my view, the Supreme Court of Canada in Tobiass, supra, gave a clear signal that societal interests or the public interest weighed heavily in that case against the granting of a stay in a case dealing with potential revocation of citizenship. At page 435, the Court said:
| On the other side of the balance, society's interest in having a final decision on the merits is obvious. It is imperative that the truth should come to light. If it is not proven that the appellants did the things they are said to have done, then they will retain their citizenship. But if some or all of the alleged acts are proven then the appropriate action must be taken. What is at stake here, in however small a measure, is Canada's reputation as a responsible member of the community of nations. In our view, this concern is of the highest importance. |
[18] I do not agree with counsel for Mr. Fast that the scope of Tobiass should be confined to cases where the subject of a notice of possible revocation is specifically accused of killing civilians. I think that that puts very much too narrow a scope on what the justices of the Supreme Court said in that case. As I mentioned during argument, crimes against humanity are not limited to an overt act of participation in the actual killing of civilians, but is broader than that in the circumstances.
[19] I am not unmindful of the evidence relating to the financial consequences to Mr. Fast. Indeed, in the application of the balance of convenience, it seems that the harm to Mr. Fast should be taken into consideration.
[20] However, in my view, in the scheme of things, this factor cannot in any way displace the need to get along with this process and that ultimately the truth must come out, which is both in the interest of Mr. Fast and in the interest of the Minister. Again, the fact that Mr. Fast may have challenged the matter of the validity of the Notice on judicial review does not, in my view, displace the balance of convenience in his favour.
[21] For all of these reasons, the stay requested by Mr. Fast is dismissed. I do not think, in the circumstances, that this is a case where costs should be awarded.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 4, 2000