Federal Court of Appeal Decisions

Date: 20060124

Docket: A-639-04

Citation: 2006 FCA 30

CORAM:        RICHARD C.J.

                        EVANS J.A.               

                        PELLETIER J.A.

BETWEEN:

DUANE EDWARD WORTHINGTON and HELEN CHARLOTTE WORTHINGTON

Appellants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Heard at Toronto, Ontario, on January 24, 2006.

Judgment delivered from the Bench at Toronto, Ontario on January 24, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                      EVANS J.A.

Date: 20060124

Docket: A-639-04

Citation:2006 FCA 30

CORAM:        RICHARD C.J.

                        EVANS J.A.               

                        PELLETIER J.A.

BETWEEN:

DUANE EDWARD WORTHINGTONand HELEN CHARLOTTE WORTHINGTON

Appellants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on January 24, 2006)

EVANS J.A.

[1]                This is an appeal from a decision of Layden-Stevenson J. of the Federal Court granting an application for judicial review brought by the Appellants. The Applications Judge quashed a decision of the Minister of Citizenship and Immigration, dated July 23, 2003, refusing their claim that the male Appellant should be granted Canadian citizenship.

[2]                However, the Judge refused to grant an order of mandamus requiring the Minister to grant citizenship to the male Appellant, or to determine a constitutional challenge raised by the Appellants to the differential treatment afforded by the Canadian Citizenship Act, R.S.C. 1985, c. C-39, to natural-born and adopted children of Canadian citizens. Layden-Stevenson J.'s decision is reported as Worthingtonv. Canada(Minister of Citizenship and Immigration), 2004 FC 1546.

[3]                In all the circumstances of this case, we are not persuaded that we should interfere with the Applications Judge's exercise of discretion not to grant an order of mandanus to compel the Minister to grant Canadian citizenship to the male Appellant or to entertain the constitutional question raised by the Appellants.

[4]                After the Federal Court's decision in this matter, the Minister rendered decisions, again refusing the male Appellant's application for Canadian citizenship. The Appellants have made applications for judicial review challenging these decisions. The underlying constitutional issues raised by the Appellants in the present appeal are more appropriately raised in these subsequent applications for judicial review.

[5]                Nor are we satisfied that the Applications Judge erred in her award of costs.

[6]                For these reasons, the appeal will be dismissed, without costs.

FEDERAL COURT OF APPEAL

Names Of Counsel And Solicitors Of Record

DOCKET:                                                 A-639-04

(APPEAL FROM A JUDGMENT OF THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON OF THE FEDERAL COURT DATED NOVEMBER 3, 2004, COURT FILE NO. T-247-04)

STYLE OF CAUSE:                                  DUANE EDWARD WORTHINGTON and HELEN CHARLOTTE WORTHINGTON

Appellants

                                                                  and

                                                                  THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                           TORONTO, ONTARIO

DATE OF HEARING:                             JANUARY 24, 2006

REASONS FOR JUDGMENT OF         RICHARD, C.J.,

THE COURT BY:                                     EVANS & PELLETIER JJ.A.

DELIVERED FROM THE BENCH

BY:                                                             EVANS J.A.          

APPEARANCES:

Ali M. Amini	FOR THE APPELLANTS
A. Leena Jaakkimainen Robert Bafaro	FOR THE RESPONDENT

SOLICITORS OF RECORD:

AMINI CARLSON LLP Barristers & Solicitors Toronto, ON	FOR THE APPELLANTS
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT