T-3318-78
In re Citizenship Act and in re John Adrian
Claude Fortesque (Appellant)
Trial Division, Mahoney J.—Toronto, January 19;
Ottawa, January 24, 1979.
Citizenship — Appeal from dismissal of application for
citizenship — Notices of time and date for hearing before
Citizenship Judge not received by appellant until after date
passed because of situation where Court's standard procedure
not apt — Citizenship Judge making favourable findings in
appellant's absence but unable to make finding as to appel
lant's knowledge of an official language and of the respon
sibilities and privileges of citizenship — Appeal considered to
be new hearing — Appeal allowed — Citizenship Act, S.C.
1974-75-76, c. 108, ss. 5(1)(c), (d), 13(5) — Citizenship Regu
lations, SOR/77-127, ss. 3(8), 13(1),(2),(3) — Federal Court
Rule 912.
APPEAL.
COUNSEL:
M. Lubek for appellant.
Frederick W. Chenoweth as amicus curiae.
SOLICITORS:
Wilfrid S. L. Young, Vancouver, for appel
lant.
Frederick W. Chenoweth, Toronto, as amicus
curiae.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The appellant is a British subject,
born in England. He is a geophysicist with a
doctorate and is ordinarily employed as a universi
ty professor. He was landed as an immigrant in
Canada October 24, 1962, and has been perma
nently resident in Canada since.
He applied for Canadian citizenship at Hamil-
ton, Ontario, on June 22, 1977. At the time he was
engaged in carrying out a contract for the govern
ment of Canada that had him moving about the
country living in a trailer. He gave the address of a
friend in Oakville, Ontario, as his address in the
application. At the end of the year, he accepted a
contract with the University of Missouri that had
him based at Columbia, Missouri, and travelling
extensively in Canada and the United States
throughout 1978. He did not change the address
he had given in his application. He kept periodic
telephone contact with the friend.
In the scheme of the Citizenship Regulations,'
once an application is filed, a copy is sent to the
Registrar of Citizenship in Ottawa who undertakes
the inquiries necessary to determine that the appli
cant meets the legal requirements in respect of the
application. These inquiries disclose, for example,
whether the applicant is lawfully in Canada as
alleged in the application and any criminal record
or lack thereof. When the Registrar's inquiries are
done, their result is sent to an officer of the
Citizenship Court with the notification that the
application may be referred to a Citizenship
Judge. Thereupon, the officer is required by sub
section 3(8) of the Regulations to
3. (8) ...
(b)...
(i) fix a date and time when and a place where the
application shall be referred to a citizenship judge for
consideration, and
(ii) give to the applicant at least seven days notice in
writing thereof and advise him that he is required to
appear before a citizenship judge on the date and at the
time and place specified to be examined with respect to his
qualifications for citizenship.
Subsections 13(1) and (2) provide:
13. (1) Subject to subsections (2) and (3), where an appli
cant fails to appear before a citizenship judge or a foreign
service officer at the date, time and place fixed under subsec
tion 3(8) or 11(4), the citizenship judge or a foreign service
officer may, in his discretion, endeavour to communicate with
the applicant and fix a new date, time and place acceptable to
the citizenship judge or the foreign service officer, for the
appearance of the applicant.
(2) Subject to subsection (3), where
(a) a citizenship judge or foreign service officer does not
endeavour to or is unable to communicate with an applicant
and fix a new time, date and place, or
(b) an applicant fails to appear at a new time, date and place
that has been fixed,
the application shall be considered by the citizenship judge on
the basis of the information available.
The practice of the Citizenship Court appears to
be to notify the applicant of date, time and place
of hearing by letter mailed, by ordinary post, 14
days in advance. If the applicant does not appear,
' SOR/77-127.
the hearing is rescheduled and, again, 14 days
notice by ordinary post is given. If the applicant
does not then appear, the hearing is again
rescheduled and 14 days notice is given by regis
tered post. If the applicant fails to appear at the
third scheduled hearing, the application is referred
to the Citizenship Judge to be considered "on the
basis of the information available" as required by
subsection 13(2) of the Regulations. That standard
practice exceeds the minimum requirements of the
Regulations in that behalf. It was followed in the
appellant's case. Subsection 13(3) provides:
13....
(3) No application for a grant of citizenship under subsec
tion 5(1) of the Act shall be approved without the evidence in
person of the applicant, and where the applicant fails to appear
before a citizenship judge at a date, time and place fixed under
subsection 3(8) or 13(1) of these Regulations, the citizenship
judge shall not approve the application.
The appellant was based in Columbia, Missouri,
when notice of the first scheduled hearing was
received. It indicated that if he did not appear,
another date would be fixed. He did not receive
notice of the second scheduled hearing until after
its date had passed. He contacted the Citizenship
Court and requested that a date be set well ahead
so he could arrange to be there. The officer of the
Citizenship Court declined to deviate from stand
ard practice. The registered notice of the third
scheduled hearing also reached the appellant after
its date had passed.
The Citizenship Judge was able on the record to
make the necessary findings, all favourable to the
appellant, except those required under paragraphs
5(1)(c) and (d) as to the adequacy of his knowl
edge of one of the official languages and of
Canada and the responsibilities and privileges of
citizenship. He demonstrated to me that he met
those requirements.
The Citizenship Judge had no choice, under
subsection 13(3) of the Regulations, but to disap
prove the application. That is a decision subject to
appeal to this Court under subsection 13(5) of the
Act.
Ordinarily, the standard practice of the Citizen
ship Court gives an applicant a fair opportunity to
be present at the hearing of his or her application.
There are, however, bound to be situations in
which the standard practice is not apt. This was
such a case. It is to be hoped that in most such
instances, the Citizenship Court will be able to be
flexible and accommodate applicants with particu
lar problems. Unnecessary appeals are costly to
everyone.
This is not the sort of appeal that should often
arise or, if it does, succeed. While the hearing of
an appeal from the decision of a Citizenship Judge
is, by Rule 912 of the Federal Court Rules, a new
hearing, the fact remains that the Citizenship
Court has and regularly employs an inquisitorial
function that is quite foreign to the ordinary prac
tice of a court of law. If this Court has any doubt
that the application has been fully dealt with in the
absence of the applicant's personal attendance
before a Citizenship Judge it ought, in my view, to
dismiss the appeal regardless of the plausibility of
the applicant's reasons for not appearing. Under
the present law, an applicant is free to make a new
application immediately; there is no mandatory
waiting period following disapproval of an earlier
application as there was under the previous Act.
Happily, in this instance, the Citizenship Judge
was able to, and did, make all necessary findings
except those for which the appellant's personal
presence was absolutely necessary. I have no doubt
that, with his appearance before me, the applica
tion has been dealt with as fully as it would have
been had the appellant appeared before the Citi
zenship Judge.
JUDGMENT
The appeal is allowed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.