Date: 20040218
Docket: T-768-03
Citation: 2004 FC 249
Toronto, Ontario, February 18th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant applied for a writ of mandamus to compel Citizenship and Immigration Canada (CIC) to process his application for citizenship on May 13th, 2003. On September 2nd, 2003, the Applicant was granted Canadian citizenship. Despite being granted citizenship, he has decided to continue to pursue this action.
[2] On October 10th, 2003, the Respondent brought this motion for mootness. Prothonotary Lafrenière, in an Order dated October 22nd, 2003, and Prothonotary Milczynski, in an Order dated November 21st, 2003, confirmed that the motion would be adjourned until immediately before the mandamus hearing.
[3] Between August 2003 and January 2004 several motions were brought by both parties. The results of the motions most relevant to these proceedings are summarized below:
· October 22th, 2003: Order by Prothonotary Lafrenière in which the Applicant's motion for an expedited hearing was withdrawn and the Respondent's motion for mootness was adjourned until the start of the hearing;
· November 17th, 2003: Order by Prothonotary Lafrenière in which all of the Applicant's requests for relief were denied including a motion for contempt, a declaration of vexatious counsel and an expedited hearing;
· November 19th, 2003: Order by O'Reilly J. dismissing a contempt motion brought by the Applicant and ordering that further motions by either side be brought with leave;
· November 20th, 2003: Directions from Snider J. stating that motions by either party would only be heard with written leave of the Court pursuant to Justice O'Reilly's order dated November 19th, 2003;
· November 21st, 2003: Order by Prothonotary Milczynski dismissing the Applicant's request that (1) Respondent's counsel be required to show why he is not in contempt of court (2) Respondent's counsel undergo a psychiatric assessment and (3) Respondent's mootness motion record be struck from the Record;
· January 14th, 2004: Leave to file an interlocutory motion by the Applicant was denied by Tremblay-Lamer J.
[7] The Respondent submits that, given that the Applicant has already been granted citizenship, there is no remedy for the Court to grant in this case. In addition, it submits that this Court should not exercise its discretion to nonetheless hear the case as there is no adversarial context outstanding between the parties, judicial economy militates against the hearing and the Court should be sensitive to its role as the adjudicative branch of government.
[8] At the hearing of this motion, the Applicant advanced the following two reasons for proceeding with his motion for mandamus:
1. He wants his citizenship granted under s. 5(4) of the Citizenship Act, R.S.C. 1985 c. C-29 (Act) and not under s. 5(1) of that Act. He feels very strongly that he earned his citizenship as a reward for services to Canada and that such service should be recognized by invoking s. 5(4) of the Act. He submits that this is a first step to recognizing his services that will eventually lead to greater reward from Her Majesty (which is, presumably, a reference to a potential future Order of Canada).
2. He wants, in his own words:
The Respondent (to) be required to show cause for criminal contempt of court for abusing public office in the process of the Applicant's application for citizenship under s. 5(4) or\and section 5(1) of the Citizenship Act with intend to Obstruct and mislead justice in such way as to interfere with the orderly administration of justice, disobeying the process, and impair the authority of the Court. (Applicant's Record p.3)
He also alleges that there is a conspiracy among members of the Toronto branch of CIC, the Attorney General of Canada and the Federal Court Registry to keep his case out of court. Notwithstanding that he has a 'perfected' a mandamus application, this conspiracy prevents him from having his hearing and his day in court.
Section 5(1) versus 5(4) of the Act
[9] The Applicant applied for citizenship on December 6th, 2000. His application form makes no reference to s. 5(4) of the Act, nor is there any narrative explaining why he feels that he deserves to receive citizenship as a reward. The departmental computer record of his application shows that it was treated from the outset as an application under s. 5(1) of the Act.
[10] While I have no doubt that it makes a great deal of difference to the Applicant whether his citizenship is granted under s. 5(1) or s. 5(4) of the Act, this is a matter personal to the Applicant. It does not make one iota of difference under what section of the Act the citizenship is granted. The Act does not provide for different types of citizenship nor does it differentiate citizenships on the basis of the authority under which they were granted.
[11] The Applicant has received his citizenship. The issue is, therefore, moot. There is no reason why the mandamus proceedings should be continued.
[12] Should the Court exercise its discretion to hear the matter notwithstanding the mootness? The test for continuing a moot matter is set out in Khalil v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1727 at para. 8, where Gibson J. summarized the relevant factors as follows:
(1) whether the parties retain an adversarial stake in the issues raised by this application for judicial review;
(2) whether, in all of the circumstances, the issues on the application for judicial review are important enough to justify the judicial resources necessary to decide the case, in the sense that the decision would have some practical effect on the rights of the parties; and
(3) whether the Court would be departing from its traditional role in adjudicating disputes if it decided the application for judicial review.
[13] In this case, there are no factors which militate in favour of the Court exercising its discretion to hear the matter despite it being moot. Save for these proceedings, there is no "adversarial stake" that remains between the parties. There has been an abundance of judicial proceedings in this matter. Judicial economy clearly requires an expeditious end to this matter. Finally, it is not the role of this Court to scrutinise how the Minister exercises his discretion when the outcome is precisely the same whether citizenship is granted under s. 5(1) or s. 5(4) of the Act.
Criminal contempt of court for abusing public office
[14] Leaving aside whether or not one can hoist a contempt of court proceeding onto a request for mandamus, the Applicant has not made out a case for contempt of court proceedings.
[15] Rule 467 of the Federal Court Rules, 1998, S.O.R./98-106 (Rules) sets out a two-step procedure to establish contempt of court. The Applicant must first obtain an Order requiring the person alleged to be in contempt to appear to answer the allegations against him. The Applicant has the onus of establishing a prima facie case that contempt of court has been committed before such an order will be issued. In this case, the Court must, therefore, determine whether the affidavit evidence filed by the Applicant for a show cause order establishes that the Respondent (i.e. the Minister of Citizenship and Immigration or one of his employees) has committed contempt as set out in Rule 466 of the Rules.
[16] The application record, filed July 21st, 2003, contains affidavits from the Applicant which are full of allegations of improper conduct. There is no evidence, however, in the application that the Minister or his employees, who have been processing the Applicant's application for citizenship, disobeyed an order or a process of the Court or acted in a way so as to:
"(abuse) public office in the process of the Applicant's application for citizenship under s. 5(4) or\and section 5(1) of the Citizenship Act with intend to Obstruct and mislead justice in such way as to interfere with the orderly administration of justice, disobeying the process, and impair the authority of the Court." (Applicant's Record p.3)
[17] The Applicant firmly believes there is a conspiracy in play against him. He would dearly love to have a Court hearing where he can expose this alleged conspiracy. However a contempt allegation without any supporting evidence is not the way to do it.
Costs
[18] The Respondent asked for costs in this motion, while the Applicant asked for a cancelling of all previous costs orders made against him, as well as $50,000 for the cumulative cost of all proceedings in this matter so far.
[19] I am of the view that enough judicial time has been spent on this matter. This file should be closed. I will not award any costs in this motion. In order to forestall any further proceedings in this matter, I also hereby exercise my discretion and vacate all previous orders as to costs made in prior proceedings.
[20] The application for a writ of mandamus, dated May 13th, 2003 and filed July 21st, 2003, is hereby dismissed. However, the Order of O'Reilly J. dated November 19th, 2003 remains in effect.
ORDER
THIS COURT ORDERS that:
1. The application for a writ of mandamus, dated May 13th, 2003 and filed July 21st, 2003, is hereby dismissed by reason of mootness.
2. There will be no order as to costs. All previous orders as to costs made in prior proceedings, are hereby vacated.
3. The Order of O'Reilly J. dated November 19th, 2003 remains in effect with respect to any present or future proceedings in this matter.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-768-03
STYLE OF CAUSE: KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 17, 2004
REASONS FOR ORDER
AND ORDER BY : von FINCKENSTEIN J.
DATED: FEBRUARY 18, 2004
APPEARANCES:
Mr. Keyvan Nourhaghighi
FOR APPLICANT, ON HIS OWN BEHALF
Mr. Lorne McClenaghan
Ms. Sally Thomas
FOR RESPONDENT
SOLICITORS OF RECORD:
Keyvan Nourhaghighi
Toronto, Ontario FOR APPLICANT, ON HIS OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040218
Docket: T-768-03
BETWEEN:
KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER