T-1548-12
2015 FC 305
Minister of Citizenship and Immigration (Plaintiff)
v.
Grace Daphne Ekwi Omelebele, Lloyd Vincent Omelebele (Aka Lloyd Vincent McStephens Omelebele), Amy Ijeoma Omelebele (Aka Amy Ijeoma McStephens Omelebele) (Defendants)
Indexed as: Canada (Citizenship and Immigration) v. Omelebele
Federal Court, Strickland J.—Toronto, February 23; Ottawa, March 10, 2015.
Citizenship and Immigration — Status in Canada — Citizens — Motion for summary judgment, pursuant to Federal Courts Rules, rr. 213, 215, seeking inter alia summary judgment, declaration, pursuant to Citizenship Act, ss. 10, 18, that defendants (mother, son) obtaining Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances — Defendants requesting summary judgment issued in their favour, stay of citizenship revocation proceedings — Mother defendant admitting making false representations when applying for refugee status — Defendants’ status as refugees vacated but before vacation, defendants applying for permanent resident status on humanitarian and compassionate (H&C) grounds as precaution; however, application rejected — Whether plaintiff’s motion for summary judgment should be granted; whether plaintiff’s delay in bringing action constituting abuse of process warranting stay of proceedings; whether mother defendant’s argument that letter rejecting H&C application indicator that no action by citizenship authorities underway to revoke defendants’ citizenship acceptable — Plaintiff succeeding in establishing that defendants obtaining citizenship through false representations; defendants admitting thereto — Therefore, no genuine issue for trial arising from plaintiff’s motion for summary judgment — As to abuse of process, stay of proceedings, defendants arguing that delay herein unreasonable, inordinate, causing substantial prejudice thereto — In present case, six-year delay between refugee vacation proceedings, further action taken unacceptable since case not complex, delay entirely unexplained — However, defendants failing to establish significant prejudice, in particular, in form of emotional, mental suffering — Purpose of H&C application to permit, in exceptional circumstances, foreign nationals to apply from within Canada for permanent resident status — Defendants may have applied as precautionary measure but difficult to see how refusal of H&C application on grounds applicants Canadian citizens could reasonably be relied upon thereby as indicator defendants’ citizenship not under review — Thus, defendants’ argument that H&C letter aggravating hardship delay causing them rejected — Given evidence, damage to public interest in fairness of administration process by continuing citizenship revocation proceedings not exceeding harm to public interest in enforcement of Act if proceedings halted at present stage — Therefore, stay of revocation proceedings not appropriate herein — Motion granted.
This was a motion for summary judgment brought by the plaintiff, pursuant to rules 213 and 215 of the Federal Courts Rules, seeking inter alia summary judgment and a declaration, pursuant to sections 10 and 18 of the Citizenship Act, that the defendants (mother and son) obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. The plaintiff set out in his motion record the factual basis for his allegations and the process that led to the commencement of this motion for summary judgment. The mother defendant admitted that she made false representations and knowingly concealed relevant facts when she applied for refugee status for herself and her children and that their citizenship flowed from those false representations. She admitted that they were therefore prima facie candidates for citizenship revocation pursuant to section 10 of the Act. Nonetheless, while there was no genuine issue for trial on that basis, the defendants submitted that the issue of whether the six-year delay in commencing this proceeding constituted an abuse of process by the plaintiff should be considered. The defendants requested in particular that a summary judgment be issued in their favour and a stay of the citizenship revocation proceedings as a remedy.
The defendants’ status as refugees was vacated by the Immigration and Refugee Board. However, no further action was taken until immigration authorities received the Board’s decision. Prior to the vacation of their status, the defendants had made an application for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds as a precaution but their application was rejected on the basis that the defendants were in fact Canadian citizens when the application was processed. The mother defendant argued that she understood from this denial that no action was underway to take citizenship away from her or her children.
The issues were whether the plaintiff’s motion for summary judgment should be granted; whether the plaintiff’s delay in bringing this action constituted an abuse of process warranting a stay of proceedings; and whether the mother defendant’s argument pertaining to the H&C response she received should be accepted.
Held, the motion should be granted.
Regarding the summary judgment, the plaintiff particularized the facts and submitted evidence that was sufficient to establish that the defendants obtained citizenship through false representations and by knowingly concealing material facts. Further, the defendants admitted that they obtained citizenship in this manner and that they were therefore subject to the loss of their citizenship. Thus, there was no genuine issue for trial arising from the plaintiff’s motion for summary judgment.
On a preliminary level, the defendants sought summary judgment only in reply to the plaintiff’s motion. They did not serve and file a notice of motion and motion record as required by the Rules and did not request that the Court dispense with compliance with rule 213. Therefore, on a procedural basis, the defendants’ request for summary judgment was refused but their argument pertaining to abuse of process was nevertheless considered.
As to the abuse of process and stay of proceedings, the defendants argued that the delay in this case was unreasonable, inordinate and caused them substantial prejudice and that the remedy of stay was warranted here. In this case, the six-year delay was unacceptable since the case was not complex and the delay was entirely unexplained. However, the defendants did not establish significant prejudice, in particular, in the form of emotional and mental suffering and associated deterioration in physical health arising directly from the delay. While the mother defendant complained that the delay in proceeding with citizenship revocation caused her psychological and physical harm, the significant causes of stress identified in the record were her employment-related issues and the death of her daughter. Her immigration status was not even raised until 2013 and no connection was made between it and the worsening of her mental or physical health. Even though the mother defendant established that she suffers from anxiety and depression, there were multiple contributing causes and she failed to establish that the delay was one of them. She failed to establish that the delay directly caused her significant psychological harm. As to her son, Lloyd Omelebele, who claims to have suffered prejudice from the plaintiff’s delay, in particular anxiety over making education-related decisions, the evidence did not support this position.
The purpose of an H&C application is to permit, in exceptional circumstances, foreign nationals to apply from within Canada for permanent resident status. The defendants may well have made the application as a precautionary measure but it was difficult to see how a refusal to consider an H&C application for permanent residence could reasonably be relied upon by the defendants as an indicator that their citizenship was not under review. To the extent that the defendants may have relied on the reply to mean that no future action would be taken to change their citizenship status, this was not a reasonable interpretation of the document and any such reliance was misplaced, particularly since the discovery evidence of the mother defendant was that she showed the letter to her lawyer and they had discussed it. It can reasonably be inferred that counsel would have known that the letter did not offer any assurance that the defendants’ citizenship was no longer under review. Accordingly, the defendants’ assertion that this letter aggravated any hardship that they alleged the delay caused them was rejected.
The plaintiff met his burden of establishing the facts necessary to obtain summary judgment but the defendants did not meet their burden of evidence that there was a genuine issue for trial here. Furthermore, given the evidence, the damage to the public interest in the fairness of the administration process by continuing the revocation proceedings would not exceed the harm to the public interest in the enforcement of the Act if the proceedings were halted at that stage. Therefore, a stay of proceedings was not appropriate in these circumstances.
STATUTES AND REGULATIONS CITED
Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 18.
Federal Courts Rules, SOR/98-106, rr. 55, 106, 213, 214, 215.
CASES CITED
applied:
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307.
distinguished:
Canada (Citizenship and Immigration) v. Parekh, 2010 FC 692, [2012] 1 F.C.R. 169.
considered:
Canada (Citizenship and Immigration) v. Bilalov, 2013 FC 887, 19 Imm. L.R. (4th) 265; Canada (Citizenship and Immigration) v. Campbell, 2014 FC 40.
referred to:
Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, (1997), 151 D.L.R. (4th) 119; Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2000 CanLII 16373, 14 Imm. L.R. (3d) 184 (F.C.T.D.), affd 2001 FCA 158, 212 F.T.R. 320, leave to appeal to S.C.C. refused, [2002] 1 S.C.R. viii; Canada (Minister of Citizenship and Immigration) v. Kawash, 2003 FCT 709; Oberlander v. Canada (Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3; Oberlander v. Canada (Attorney General), 2009 FCA 330, [2010] 4 F.C.R. 395; Canada (Minister of Citizenship and Immigration) v. Schneeberger, 2003 FC 970, [2004] 1 F.C.R. 280; Canada (Citizenship and Immigration) v. Rogan, 2011 FC 1007, 396 F.T.R. 47; League for Human Rights of B’nai Brith Canada v. Odynsky, 2010 FCA 307, sub nom. League for Human Rights of B’nai Brith Canada v. Canada, [2012] 2 F.C.R. 312.
MOTION for summary judgment brought by the plaintiff seeking summary judgment and a declaration, pursuant to sections 10 and 18 of the Citizenship Act, that the defendants (mother and son) obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Motion granted.
APPEARANCES
Alexis Singer and Nicole Paduraru for plaintiff.
Laurence Cohen for defendants.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for plaintiff.
Laurence Cohen, Toronto, for defendants.
The following are the reasons for order and order rendered in English by
[1] Strickland J.: This is a motion for summary judgment brought by the Minister of Citizenship and Immigration (Minister), pursuant to rules 213 and 215 of the Federal Courts Rules, SOR/98-106 (Rules), seeking summary judgment and a declaration, pursuant to section 10 and section 18 of the Citizenship Act, R.S.C., 1985, c. C-29, that the defendants, Grace Daphne Ekwi Omelebele and her son Lloyd Vincent Omelebele (Aka Lloyd Vincent McStephens Omelebele) (defendants) have obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. The Minister also seeks to discontinue the action against Ms. Omelebele’s daughter, the defendant Amy Ijeoma Omelebele (Aka Amy Ijeoma McStephens Omelebele), who is now deceased.
[2] For the reasons set out below I am satisfied that the Minister’s motion for summary judgment should be granted and that the requested declaration should be issued by this Court pursuant to paragraph 18(1)(b) of the Citizenship Act.
Factual Background
[3] Pursuant to paragraph 10(1)(a) of the Citizenship Act, where the Governor in Council, on a report from the Minister, is satisfied that a person obtained citizenship by false representation or by knowingly concealing material circumstances, as is alleged in this case, the person shall cease to be a citizen. A person shall be deemed to have obtained citizenship in such a manner if they were lawfully admitted to Canada for permanent residence by false representation or by knowingly concealing material circumstances and, because of that admission, subsequently obtained citizenship (subsection 10(2)). The Minister cannot make such report unless he has first given notice of his intention to do so (subsection 18(1)), and, upon the request of the person concerned, this Court has determined that the person has obtained citizenship in the manner alleged (paragraph 18(1)(b)).
[4] In this case, the Minister has set out in his motion record the factual basis for his allegations and the process that led to the commencement of this motion for summary judgment. It is not necessary for the Court to address this, as Ms. Omelebele has admitted that she made false representations and knowingly concealed relevant facts when she applied for refugee status for herself and her children and that their citizenship flowed from those false representations. Accordingly, that they are prima facie candidates for citizenship revocation pursuant to section 10 of the Citizenship Act.
[5] However, while it is not denied that there is no genuine issue for trial on that basis, the defendants submit that there is another genuine issue that the Court should consider, being whether the six-year delay in commencing this proceeding constitutes an abuse of process by the Minister, for which the remedy would be a stay of the proceeding.
[6] By way of their written submissions in reply to the Minister’s summary judgment motion, the defendants request that the Court issue summary judgment in their favour and grant a stay of the citizenship revocation proceedings or, alternatively, that the Court dismiss the Minister’s motion for summary judgment so that a hearing can be convened to determine the issue of abuse of process. The defendants have not filed a motion in support of the requested relief.
Issues
[7] As a preliminary matter, the Minister’s request that the action be discontinued as against Amy Ijeoma Omelebele, who died at age 17 on November 15, 2012, and which was consented to by counsel for the defendants at the hearing of this matter, is granted without costs or necessity of filing a notice of discontinuance (rules 55, 106).
[8] The issues are as follows:
i. Should the Minister’s motion for summary judgment be granted?
ii. Does the Minister’s delay in bringing this action constitute an abuse of process warranting a stay of the proceedings?
i. Summary Judgment
[9] The Minister has particularized the facts and submitted evidence that is sufficient to establish that the defendants obtained citizenship through false representations and knowingly concealing material facts. Further, the defendants have admitted that they so obtained citizenship in their pleadings, on discovery and at the hearing of this matter and, therefore, that they are subject to the loss of their citizenship. Accordingly, in these circumstances, I am satisfied that there is no genuine issue for trial arising from the Minister’s motion for summary judgment.
[10] This leaves the question of whether there was an abuse of process by the Minister that constitutes a genuine issue for trial as alleged by the defendants.
ii. Abuse of Process / Stay of Proceedings
[11] As a preliminary point and as noted above, the defendants seek summary judgment only in reply to the Minister’s motion. It is clear that a party seeking summary judgment must do so by way of serving and filing a notice of motion and motion record (subsections 213(1) and (3) [of the Rules]). This affords the responding party an opportunity to file a motion record in reply (subsection 213(4)). The defendants have not brought such a motion nor have they requested that the Court dispense with compliance with rule 213. Accordingly, on a procedural basis, the defendants’ request for summary judgment is refused.
[12] However, because in their statement of defence the defendants have pled that the unexplained delay caused them severe psychological and emotional harm, the Court will consider whether the defendants’ submissions in that regard amount to a genuine issue for trial (subsection 215(1) [of the Rules]).
Defendants’ Position
[13] The defendants submit that delay can constitute an abuse of process (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (Blencoe)) and that the delay in this case was unreasonable, inordinate and caused them substantial prejudice. Further, that it met the three criteria set out in Canada (Citizenship and Immigration) v. Parekh, 2010 FC 692, [2012] 1 F.C.R. 169 (Parekh); (Canada (Citizenship and Immigration) v. Bilalov, 2013 FC 887, 19 Imm. L.R. (4th) 265 (Bilalov), at paragraph 22. Here the defendants admitted to making false representations during the initial proceedings held before the Immigration and Refugee Board (IRB) to vacate their refugee status and this was a simple case that should have been quickly resolved. Further, that Citizenship and Immigration Canada (CIC) knew in January 2003 that vacation proceedings were in motion and the IRB revoked the defendants’ status in October 2005. However, this was followed by an unexplained six-year gap before any further action was taken. As to prejudice, the affidavit of Ms. Omelebele states that the stress of her uncertain citizenship status caused increased anxiety, more frequent migraine headaches and depression.
[14] The affidavit of her son, Lloyd Omelebele, states that he grew up in Canada and feels that he has been living in limbo or on borrowed time during the period between when his refugee status was vacated and when he was informed that citizenship revocation proceedings had begun.
[15] The defendants also assert that the response they received from CIC to a 2005 application by Ms. Omelebele for permanent residence on humanitarian and compassionate (H&C) grounds meant that no action would follow to change that status. This aggravated the hardship that the delay caused when the revocation proceedings were commenced.
[16] The defendants submit that the abuse of process in this circumstance merits the remedy of a stay (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (Tobiass), at paragraph 90; Parekh, above).
The Minister’s Position
[17] The Minister submits that the request for a stay should not be considered in the absence of a formal motion. In any event, the test for a stay has not been met (Tobiass, at paragraphs 89–90; Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2000 CanLII 16373 (F.C.T.D.) (Obodzinsky), affd 2001 FCA 158, 212 F.T.R. 320, leave to appeal to S.C.C. refused [2002] 1 S.C.R. viii).
[18] To stay the proceeding on the ground of delay the Court must also be satisfied that there was inordinate delay that caused prejudice of such magnitude that the public’s sense of decency and fairness is affected (Blencoe, above, at paragraphs 101, 115, 120–122 and 133). The determination of a reference pursuant to section 18 of the Citizenship Act should not be discontinued solely due to delay if prejudice cannot be shown (Bilalov, above, at paragraphs 23–24; Canada (Citizenship and Immigration) v. Campbell, 2014 FC 40 (Campbell), at paragraphs 19–20; Canada (Minister of Citizenship and Immigration) v. Kawash, 2003 FCT 709, at paragraphs 15–16).
[19] Here the defendants’ evidence has failed to establish significant prejudice due to delay, either medical or otherwise. Further, the delay was not oppressive to the point of tainting the proceedings, the public interest is best served by obtaining a declaration, and, the Governor in Council can consider delay or the passage of time before deciding whether to revoke an individual’s citizenship (Oberlander v. Canada (Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3, at paragraphs 11–17; Oberlander v. Canada (Attorney General), 2009 FCA 330, [2010] 4 F.C.R. 395, at paragraph 10; Obodzinsky, above, at paragraphs 15–16).
Analysis
[20] As held in Blencoe, delay alone will not warrant a stay of proceedings as an abuse of process at common law. There must be proof of significant prejudice which results from unacceptable delay (at paragraph 101).
[21] There, the Supreme Court of Canada was considering a state-caused delay in a human rights proceeding. It held that where delay impairs a party’s ability to answer the complaint against him, such as where essential witnesses have died or evidence is lost, then administrative delay may be invoked to impugn the validity of the proceeding and provide a remedy. In this case, the defendants do not assert that their right to a fair hearing or their ability to respond to the action has been compromised.
[22] However, in Blencoe the Supreme Court also stated that it would be prepared to recognize that unacceptable delay might amount to abuse of process in certain circumstances, even where the fairness of the hearing had not been compromised (at paragraph 115):
Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an “unacceptable delay” that amounts to an abuse of process.
[23] The Court stated that to find an abuse of process a court must be satisfied that the damage to the public interest in the fairness of the administrative process, should the matter proceed, would exceed the harm to the public interest in the enforcement of the legislation if it were halted. For there to be an abuse of process the proceedings must be unfair to the point that they are contrary to the interests of justice, and such cases will be extremely rare (at paragraph 120).
[24] In that regard, the delay must have been unreasonable or inordinate (at paragraph 122):
The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay.
[25] Given this backdrop, it is first necessary to review the timeline of events leading up to the commencement of the revocation proceeding in this matter:
• The defendants arrived in Canada in 1999 (plaintiff’s motion record, at page 38);
• In June 2000, they were granted Convention refugee status (plaintiff’s motion record, at page 57);
• In March 2001, the defendants obtained permanent residence (plaintiff’s motion record, at pages 62–67);
• On December 23, 2002, CIC received information alleging that Ms. Omelebele had misrepresented herself and material circumstances when she entered Canada (plaintiff’s motion record, at pages 120–141);
• On May 30, 2003, Ms. Omelebele applied for citizenship for herself and her children (plaintiff’s motion record, at pages 68–78);
• On February 23, 2004, the Minister made an application to reconsider and vacate the defendants’ refugee status (plaintiff’s motion record, at pages 85–86);
• On March 17, 2004, the defendants filed a request for exemption from permanent residence visa document on H&C grounds (plaintiff’s motion record, at pages 184–191);
• On July 15, 2004, the defendants were granted citizenship (plaintiff’s motion record, at pages 82–84);
• On January 13, 2005, the IRB advised CIC that proceedings were underway to vacate the defendants’ refugee status (plaintiff’s motion record, at page 174);
• On October 5, 2005, the IRB vacated the defendants’ refugee status (plaintiff’s motion record, at page 159);
• On July 7, 2008, CIC denied the defendants’ application for permanent residence from within Canada on H&C grounds (plaintiff’s motion record, at page 183);
• On October 11, 2011, a certified copy of the IRB’s vacation decision was received at CIC (plaintiff’s motion record, at page 174; defendants’ written submissions, at paragraph 9);
• Notices in respect of revocation of citizenship were issued on February 1, 2012 and served on February 21, 2012 indicating that the Minister intended to make a report to the Governor in Council pursuant to section 10 of the Citizenship Act (plaintiff’s motion record, at pages 167-172; defendants’ written submissions, at paragraph 10);
• On March 9, 2012, the defendants requested that the matter be referred to this Court; and
• The statement of claim that is the subject of the Minister’s motion of summary judgment was issued on August 15, 2012.
[26] The defendants assert that CIC arguably should have become aware of the misrepresentation as early as December 2002, when the local immigration office in Toronto received information alleging this from Ms. Omelebele’s husband, but that the Minister has not indicated whether he was aware of that information. However, in January 2005, the Minister received notice in a communication from the IRB to CIC, that the revocation proceedings with respect to the defendants’ refugee status were in progress. While the IRB decision was rendered on October 5, 2005, there was no further activity until a copy of that decision was provided to CIC in October 2011. This six-year gap is entirely unexplained by the Minister.
[27] In Bilalov, as in this case, the Minister brought a motion for summary judgment seeking a declaration that Bilalov had obtained citizenship by a false representation or fraudulent concealment. Bilalov admitted to this but in his defence asserted that delay in proceeding amounted to an abuse of process and that a stay of the proceeding was an appropriate remedy. The Minister provided no explanation for the delay of more than five years.
[28] Justice Zinn referred to Parekh, where Justice Tremblay-Lamer set out three main factors to be balanced in assessing the reasonableness of a delay: (1) the time taken compared to the inherent time requirements of the matter; (2) the cause of the delay beyond the inherent requirements of the matter; and (3) the impact of the delay (at paragraph 28). Justice Zinn noted that the facts had been admitted by Bilalov when he pled guilty to the crime of making a false statement for citizenship and that it was not a complex case or one requiring further investigation. Thus, the first two factors weighed in favour of Bilalov for a stay. The fact that the Minister had offered no explanation for the delay was very disturbing and also weighed in Bilalov’s favour. However, Bilalov had offered no evidence as to the impact that the delay had on him. Accordingly, the Court could not conclude that the damage to the public interest in the fairness of the administrative process, should the proceeding go ahead, would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted. Therefore, a stay was denied. Also see Campbell, where a stay was denied in similar circumstances following an unexplained six-year delay.
[29] In my view, while in this case the six-year delay was unacceptable given that the case was not complex and the delay was entirely unexplained, the defendants have not established significant prejudice arising directly from the delay.
[30] In that regard, while the defendants rely on Parekh, I do not think that in their circumstances it is of assistance to them. In that case, the defendants had legally acquired permanent residence but fraudulently acquired citizenship. They pled guilty to charges of false representations on their applications for citizenship. All facts being admitted, the case for revoking citizenship was straightforward. However, the state’s five-year delay in prosecuting what was a simple case was found to have caused real prejudice to the defendants. They not only lost the opportunity to apply again for citizenship, which was available to them as permanent residents not subject to deportation, but were also denied passport services as a result of the pending proceedings, and, their application to sponsor their daughter for permanent residence was put on hold for the same reason.
[31] By contrast, the defendants in this case do not allege interference with their rights as citizens. Unlike the defendants in Parekh, they obtained and renewed their Canadian passports and travelled to Nigeria on at least two occasions to visit family. Also unlike the defendants in Parekh, they have not lost any opportunity to apply again for citizenship. Furthermore, during the delay, the defendants worked, studied and maintained access to all government services, including health care.
[32] As noted above, Blencoe does contemplate circumstances in which a lengthy delay may constitute an abuse of process by causing “significant psychological harm … or … a stigma to a person’s reputation” (at paragraph 115). Although the defendants take the position that the delay has caused them significant prejudice in the form of emotional and mental suffering and associated deterioration in physical health, in my view, this is not established on the evidence.
[33] Ms. Omelebele states in her affidavit that her appended medical file from her family physician serves to demonstrate how frequently she visited her doctor because of complaints that were related to her stress “caused by the citizenship issue”. In fact, that record is wide ranging and records various health complaints. It also starts in 2005, therefore, it is not possible to compare the frequency of her visits to the period before her refugee status was vacated and her citizenship was in question.
[34] Further, while there are some references over the years to complaints of migraines, there is no indication in the record as to an increase in their frequency or severity nor to a specific cause. The record from her family doctor does indicate stress at work and anxiety arising from work related issues, including suspension from her employment. It also references the death of her daughter and her grief reaction to this. However, it was not until 2013, subsequent to issuance of the notices in respect of revocation of citizenship, that any reference was made to concerns about her citizenship. That record indicates that on April 18, 2013, she reported being very upset and that her lawyer had advised her that her citizenship would be revoked she sought a letter from her doctor stating that she would not be able to attend an immigration hearing because of her mental status. That record also indicates that in December 2013, she reported “a lot of issues with immigration” and that she “went for immigration hearing, lawyer will ask for reports. Since 2004 ongoing issues with immigration. Has been advised to apply for compassionate ground letter. She is already a canadian citizen”.
[35] This does not establish that because of the delay in proceeding with citizenship revocation Ms. Omelebele suffered direct psychological and physical harm. The significant causes of stress identified in that record were her employment-related issues and, understandably, the death of her daughter. Her immigration status is not even raised until 2013 and no connection is made between it and worsening of her mental or physical health.
[36] A letter of May 24, 2011 from a consulting neurologist to Ms. Omelebele’s family doctor notes that “she has had headaches since the end of high school …. Typical triggers include menses, weather changes, sleep deprivation, stress, chocolate, nuts, spicy foods, and florescent [sic] lighting”. No reference is made to her immigration status, and the letter concludes that her migraines “are occurring in a frequency that does not necessarily warrant preventative therapy”.
[37] A letter of April 19, 2013 from a consulting psychiatrist to Ms. Omelebele’s family doctor states that she presented for depression/anxiety. She reported that since the death of her daughter she had developed depression. Further, that she lost her job immediately after her daughter’s death. The letter also records that:
There are some immigration issues. Her ex-husband was quite abusive in U.S. so they all came to Canada. She came with her daughter and a son. The daughter has died, but the son is with her. Her ex-husband wrote a very nasty letter to the immigration authorities. A couple of social events have impacted her mood and caused her severe depression….
As to stressors, these were recorded as “nonspecific”. A medical history of migraines was also noted.
[38] This letter was also written after the notice in respect of revocation of citizenship was served on Ms. Omelebele on February 21, 2012. And, while it references “immigration issues” it does not address the question of whether the delay in pursuing citizenship revocation caused or contributed to the depression. The notice of revocation could have been the triggering factor as opposed to the delay.
[39] In short, while Ms. Omelebele has established that she suffers from anxiety and depression, there would appear to be multiple contributing causes and she has not established that the delay was one of them. She has failed to establish that the delay has directly caused her significant psychological harm.
[40] As to Lloyd Omelebele, his affidavit states that he has grown up in Canada and made decisions for his future and education based on being able to continue to live here. He claims to have suffered prejudice from the Minister’s delay, as “if I had known earlier that I was going to have to leave Canada, I might have made different choices”. For instance, he “may have” chosen to study elsewhere than at York University. He states that he has “suffered anxiety and worry over making these decisions over the past 7 years, not knowing if my citizenship would some day be revoked”.
[41] Lloyd Omelebele submits no medical or other evidence in support of this statement. Further, it is not consistent with his discovery evidence (examination for discovery, July 3, 2013, at pages 56–57):
A. Since that report was filed we didn’t really know like how secure we were to living here, so that was just an uncertainty that we had at the back of our heads.
Q. Did that affect you from your day-to-day life?
A. No.
Q. Okay. You also state there at paragraph 57 that this uncertainty has caused you prejudice which is severe and real. Can you explain all the ways in which you have suffered prejudice from the uncertainty, if there’s anything else?
A. I haven’t suffered any prejudice.
Q. At paragraph 61 it states that you have been seriously distressed by the delay to bring this action since 2005. Can you explain what this distress was?
A. Around that time I was still young. I didn’t – this stuff, that didn’t really worry me. I always depended on my mom for stuff because she was able to pull through for us, so I would never worry much, but, you know.
Q. So was there any distress for you?
A. No.
[42] In my view, the evidence does not support the defendants’ position that Lloyd Omelebele suffered significant prejudice because of the delay.
[43] On March 17, 2004, the defendants made an application for permanent residence from within Canada on H&C grounds. In response to this application they received a letter dated July 7, 2008 advising that the circumstances of their request had been reviewed and a decision had been made that an exemption would not be granted. It further stated that:
This is an administrative decision based on the fact that you are already a Canadian Citizen of Canada and thereby no longer a foreign national in need of assessment under Humanitarian and Compassionate grounds.
[44] Ms. Omelebele’s affidavit states that she understood from this that no action was underway to take citizenship away from her or her children, as otherwise the Minister would have informed her of this when she made her H&C application.
[45] The purpose of an H&C application is to permit, in exceptional circumstances, foreign nationals to apply from within Canada for permanent resident status, the normal course being for them to apply from outside Canada. The defendants may well have made the application as a precautionary measure, which explanation is supported by Ms. Omelebele’s discovery evidence (December 4, 2013, at page 219). The reasoning being that, if their refugee status was vacated and, therefore, their citizenship status was at risk, by making the H&C application before a revocation decision was made then they would already be “in the queue” to have their H&C application considered. However, it is difficult to see how a refusal to consider an H&C application for permanent residence, on the basis that the defendants were, in fact, Canadian citizens when the application was processed, can reasonably be relied upon by the defendants as an indicator that their citizenship was not under review.
[46] To the extent that the defendants may have relied on the reply to mean that no future action would be taken to change their citizenship status, this was not a reasonable interpretation of the document, and any such reliance was misplaced. This is particularly so because Ms. Omelebele’s discovery evidence was that she showed the letter to her lawyer and they had discussed it. Her discovery evidence was that her lawyer’s advice was that the letter was from immigration and to just hold on. It can reasonably be inferred that counsel would have known that the letter did not offer any assurance that the defendants’ citizenship was no longer under review. Accordingly, I do not accept the defendants’ assertion that this letter aggravated any hardship that they allege the delay caused them.
[47] On summary judgment the moving party bears the legal onus of establishing the facts necessary to obtain summary judgment. The Minister has done so in this case. When that onus was met, the responding party, the defendants, had the evidential burden of showing that there is a genuine issue for trial. Each side must put its best foot forward (Canada (Minister of Citizenship and Immigration) v. Schneeberger, 2003 FC 970, [2004] 1 F.C.R. 280, at paragraph 18; rule 214). Here the evidence put forward by the defendants did not meet their burden.
[48] Further, given the evidence, I am satisfied that the damage to the public interest in the fairness of the administration process by continuing the revocation proceedings would not exceed the harm to the public interest in the enforcement of the Citizenship Act if the proceedings were halted at this stage. It is also of note that while a declaration issued by this Court may form the basis of a report by the Minister to the Governor in Council requesting revocation of the defendants’ citizenship, the ultimate decision with respect to revocation rests with the Governor in Council, who has broad discretion in that regard, and which decision is subject to judicial review (Canada (Citizenship and Immigration) v. Rogan, 2011 FC 1007, 396 F.T.R. 47, at paragraph 16; League for Human Rights of B’nai Brith Canada v. Odynsky, 2010 FCA 307, sub nom. League for Human Rights of B’nai Brith Canada v. Canada, [2012] 2 F.C.R. 312, at paragraphs 76–82, 86–87).
[49] For these reasons, a stay of proceedings is not appropriate in these circumstances. However, as the Minister failed to offer any explanation for the delay, although his motion for summary judgment will be granted, it will be without costs (Bilalov, at paragraph 28).
THIS COURT ORDERS THAT:
1. This proceeding is hereby discontinued as against the defendant, Amy Ijeoma Omelebele (Aka Amy Ijeoma McStephens Omelebele), with no order as to costs;
2. The Minister’s motion for summary judgment is granted, without costs; and
3. The Court declares that each of Grace Daphne Ekwi Omelebele and Lloyd Vincent Omelebele (Aka Lloyd Vincent McStephens Omelebele) obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances within the meaning of paragraph 18(1)(b) of the Citizenship Act, R.S.C., 1985, c. C-29.