Federal Court of Appeal Decisions

Date: 20020118

Docket: A-179-99

Neutral citation:    2002 FCA 20

CORAM:        STONE J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                              THE COALITION OF CONCERNED CONGREGATIONS

                ON THE LAW RELATING TO WAR CRIMES AND CRIMES AGAINST

                              HUMANITY INCLUDING THOSE OF THE HOLOCAUST

                         ("the Coalition of Concerned Congregations" or "the Coalition"),

                                an unincorporated association within the meaning of rule 2,

                                  and KENNETH M. NARVEY, on his own behalf and/or

                                           (pursuant to rule 114) on behalf of himself and

                                           all other persons associated with the Coalition

                                                                                                                                                     Appellants

                                                                            (moving parties in the Federal Court Trial Division)

                                                                                 and

       THE MINISTER OF CITIZENSHIP AND IMMIGRATION and JOHANN DUECK

                                                                                                                                               Respondents

                                                            (respondents to a motion in the Federal Court Trial Division)

                                    Heard at Ottawa, Ontario, on Tuesday, January 15, 2002.

                          Judgment delivered at Ottawa, Ontario, on Friday, January 18, 2002

REASONS FOR JUDGMENT BY:                                                                                         STONE J.A

.

CONCURRED IN BY:                                                                                                            EVANS J.A.

                                                                                                                                              MALONE J.A.

Date: 200201158

Docket: A-179-99

Neutral citation:    2002 FCA 20

CORAM:        STONE J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                              THE COALITION OF CONCERNED CONGREGATIONS

                ON THE LAW RELATING TO WAR CRIMES AND CRIMES AGAINST

                              HUMANITY INCLUDING THOSE OF THE HOLOCAUST

                         ("the Coalition of Concerned Congregations" or "the Coalition"),

                                an unincorporated association within the meaning of rule 2,

                                  and KENNETH M. NARVEY, on his own behalf and/or

                                           (pursuant to rule 114) on behalf of himself and

                                           all other persons associated with the Coalition

                                                                                                                                                     Appellants

                                                                            (moving parties in the Federal Court Trial Division)

                                                                                 and

       THE MINISTER OF CITIZENSHIP AND IMMIGRATION and JOHANN DUECK

                                                                                                                                               Respondents

                                                            (respondents to a motion in the Federal Court Trial Division)

                                                        REASONS FOR JUDGMENT

STONE J.A.

[1]                 This appeal, pursuant to subsection 27(1) of the Federal Court Act, is from an order of Noël J. dated March 16, 1999, sitting in his capacity as a judge of the Trial Division. By that order the appellants' motion for standing to seek reconsideration and clarification of Noël J.'s order of December 21, 1998, was dismissed.

[2]                 The order of December 21, 1998, made under paragraph 18(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"), determined that the respondent Dueck had not obtained Canadian citizenship by fraud or by knowingly concealing material circumstances. An allegation to the contrary was contained in a Notice in Respect of Revocation of Citizenship sent by the Minister to that respondent on January 27, 1995, pursuant to subsection 18(1) of the Act. The appellants complain that this order is too broad and wish to have it restricted so that a future notice or notices may be given to the same respondent on grounds other than the one contained in the notice which Noël J. found not to be established on the evidence.

[3]                 Rules 104 and 397 of the Federal Court Rules, 1998 and the Court's inherent power to clarify or correct its reasons for the order were invoked by the appellants in support of the motion. The appellants also took the position that this Court possessed equitable jurisdiction to grant them standing to be added as a party for the purpose of bringing an appeal from the order of December 21, 1998, notwithstanding that they were not parties in the reference proceeding. Rule 104(1)(b) empowers the Court at any time to "order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectively and completely determined be added as a party". Rule 397(1) enables the Court at the request of a "party" to "reconsider" the terms of an order on the ground that the order "does not accord with any reasons given for it" or that "a matter that should have been dealt with has been overlooked or accidentally omitted". Rule 397(2) authorizes the Court to correct "clerical mistakes, errors or omissions in any order".

[4]                 The respondent Dueck submits that this Court lacks jurisdiction to hear and determine the appeal because of the limiting language contained in subsection 18(3) of the Act. The Minister supports that argument. By that subsection a decision of the Trial Division "under subsection (1) is final and, notwithstanding any other act of Parliament, no appeal lies therefrom". In view of this jurisdictional argument, the appellants have served and filed a Notice of Constitutional Question in accordance with section 57 of the Federal Court Act. They wish to argue that if subsection 18(3) of the Act prohibits this appeal then that subsection is unconstitutional. The issue of jurisdiction should now be addressed so as to determine whether it is necessary to take up the constitutional question.   

[5]                 A canvass of the decided cases indicates that this issue of jurisdiction has yet to be authoritatively decided. In Luitjens v. Canada (Secretary of State), (1992) 9 C.R.R. (2d) 149 (F.C.A.), an attempt to bring an appeal pursuant to subsection 27(1) of the Federal Court Act from the order of Collier J. made at the conclusion of a reference under paragraph 18(1)(b) of the Act was quashed by this Court on the ground that the appeal was prohibited by subsection 18(3). Linden J.A., for the Court, concluded at 152 that the subsection precluded the bringing of the appeal. In Canada (Minister of Citizenship and Immigration) v. Tobiass (1996), 208 N.R. 49 (F.C.A.), an objection, based on subsection (3) of the Act, was raised to this Court's jurisdiction to entertain an appeal from a stay of paragraph 18(1)(b) reference by the Trial Division proceeding pursuant to section 50 of the Federal Court Act. The Court divided on the point. Pratte J.A. was of the view, at paragraph 7, that "the prohibition contained in s. 18(3) applies not only to the final decision on the reference but to the myriad of decisions that the Trial Division may make in the course of the reference including, in my view, a decision granting or refusing a stay of the reference proceedings". Marceau J.A., on the other hand, held at paragraph 11, that "a decision in the nature of a judgment under s. 27(1) of the Federal Court Act [is] not insulated from appeal by s. 18(3) of the Citizenship Act". I expressed a somewhat similar view at paragraph 18.

[6]                 When that matter reached the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, the Court agreed, at 412, that the stay order "was not a decision made ‘under' s. 18(1)". However, the Court went on, at 414, to state:

     Although the issue does not arise here, there is a great deal of force to the argument that s. 18(1) of the Citizenship Act encompasses not only the ultimate decision as to whether citizenship was obtained by false pretences, but also those decisions made during the course of a s. 18 reference which are related to this determination. This would encompass all the interlocutory decisions which the court is empowered to make in the context of a s. 18 reference (see, for instance, s. 46 of the Federal Court Act and Rules 5, 450-455, 461, 477, 900-920, 1714 and 1715 of the Federal Court Rules, .C.R.C., c. 663). This interpretation of s. 18(1) was adopted by the Federal Court of Appeal in Luitjens, supra, where it was held that interlocutory decisions made in the context of s. 18(1) reference are decisions made "under" s. 18(1). It is not necessary for the purpose of this decision to determine whether this conclusion should be varied. That should only be done in an appeal where the issue arises from the facts.

[7]                 Counsel for the respondents submitted that what the appellants are seeking to achieve is relief that is integral to the reference proceeding itself and that it amounts to an attempt to vary the order of December 21, 1998. It follows, in their submission, that the order of March 16, 1999, falls within the context of that proceeding and that subsection 18(3) prohibits an appeal therefrom. On the other hand, this appeal is brought pursuant to subsection 27(1) of the Federal Court Act as was the case in the appeal to this Court in Tobiass, supra. The stay order that was the subject of appeal in that case was made by the Trial Division while the reference was still underway, a circumstance that may help to further explain the conclusion arrived at by Pratte J.A. In the present case, as I have noted, the reference had concluded well before the order of March 16, 1999, was made. It seems clear from the scheme of the Act that this order was intended to finally dispose of the issue raised by the subsection 18(1) notice.

[8]                 Given the disposition of the appeal that I am about to propose it is not necessary to express a final view on the jurisdictional issue. I shall assume for the purposes of the present appeal, without deciding, that the Court does possess jurisdiction to hear and determine it. It thus becomes unnecessary to address the constitutional question raised by the appellants in their section 57 notice. The merits of the appeal should now be addressed.

[9]                 The appellants submit that Noël J. erred in rejecting the motion for reconsideration and clarification of the December 21, 1998, order due to lack of standing. In determining whether an error was committed by Noël J., we must satisfy ourselves that he gave sufficient weight to all relevant considerations in making the order of March 16, 1999: Reza v. Canada, [1994] 2 S.C.R. 394.

[10]            In my view, Noël J. did give sufficient weight to all relevant considerations and therefore committed no error in making the discretionary order. In the first place, only a "party" may move for "reconsideration" of an order pursuant to Rule 397(1). The appellants were clearly not parties to the reference. Indeed, their attempts to be joined as interveners at that stage was unsuccessful. Nor in my view does Rule 397(2) apply, as there is not here a "clerical mistake, error or omission" of the kind contemplated. What the appellant seeks goes well beyond simple errors of that sort, and consists of reconsideration or clarification of the order with a view to limiting its scope so as to allow future notices to be sent by the Minister of a different allegation or allegations than that which Noël J. found had not been established at the reference.

[11]            Nor am I persuaded that Noël J. erred in refusing to join the appellants as parties pursuant to Rule 104(1)(b). As this Court indicated in Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125, the relevant principle to be applied in construing this rule is that which was laid down by Devlin J. (as he then was) in Amon v. Raphael Truck & Sons Ltd., [1956] 1 Q.B. 257 (Q.B.D.), where he stated at 380:

The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the construction of a clause in a common form contract many parties would claim to be heard, and if there were power to admit any, there is no principle of discretion by which some could be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.

[12]            The reference proceeding itself came to an end with the order of December 21, 1998. The dispute involved the Minister on one side and the respondent Dueck on the other. There is no evidence that the presence of the appellants as parties was necessary for the question in issue to be effectually and completely settled or that the appellants should be bound by the outcome. Instead, what is patent is the appellants' desire to have the Court cut down the breadth of its finding of December 21, 1998, well after the reference has concluded so as to allow the Minister to make fresh attempts on different grounds to revoke the citizenship of the respondent Dueck pursuant to paragraph 18(1)(b) and section 10 of the Act. Although the appellants have an obviously deep and abiding interest in the reference, in my view it is not such as is contemplated by Rule 104(1)(b).

[13]            Nor am I persuaded that the decision of the Supreme Court of Canada in Societé des Acadians du Noveau-Brunswick v. Association of Parents for Freedom and Education, Grand Falls District 50, [1986] 1 S.C.R. 549, assists the appellants. It was there decided that an interested non-party may be granted standing to appeal from a final decision of a court where the parties decline to do so provided the criteria set forth in that case are satisfied. These criteria were identified by Wilson J., speaking for the Court on the point, at 594:

     A review of the cases listed in the English Manual indicates that in a proper case the practice of the Court of Chancery was to permit a grant of leave to appeal to a person not a party to an action. The test applied in order to determine when a case was a proper case for leave was whether the applicant would have been a proper, if not a necessary, party to the action. A number of factors which affect the exercise of a court's discretion on such an application are reflected in the cases. An appellant should be able to show, for example, (a) that its interest was not represented at the proceeding; (b) that it has an interest which will be adversely affected by the decision; (c) that it is, or can be, bound by the order; (d) that it has a reasonably arguable case; and (e) that the interests of justice in avoiding a multiplicity of proceedings would be served by the grant or leave. Many of these elements are present in any judicial determination as to the appropriate parties to a lawsuit.

[14]            Noël J. clearly concluded that these criteria had not been satisfied by the appellants in the unique circumstances of this case. I respectfully agree. The appellants claim that their interest is in seeing that a correct result is achieved by the Court in war crimes litigation. In my view, however, that interest is adequately served by the Minister. The Minister sent the subsection 18(1) notice to the respondent Dueck and prosecuted the very lengthy reference that ensued. The reference resulted in a long and comprehensive decision by Noël J.

[15]            For the foregoing reasons, I would dismiss the appeal with costs to the respondent Dueck. The Minister does not ask for costs.

                                                                                           "A.J. STONE"           

                                                                                                              J.A.

"I agree

    John M. Evans J.A."

"I agree

   B. Malone J.A."