Federal Court had authority to issue declaratory relief in deciding application for judicial review

Immigration and Citizenship - Citizenship - Citizenship by Birth

Child (A), who was three years old, was born in US. A's paternal grandfather was Canadian university professor who was lecturing in Malaysia for academic year when child's father was born in Malaysia. Grandfather's year in Malaysia occurred during sabbatical in which he continued to be paid by his university, though year was treated as part of program funded by Canadian International Development Agency (CIDA) which reimbursed grandfather's university. Father was recognized as Canadian citizen when his birth was registered as birth abroad. Following A’s birth, father applied for Canadian citizenship certificate relying on s. 3(5)(b) of 1946 version of Citizenship Act (Act) relating to grandfather's public service at time of father's birth. Citizenship officer refused to issue certificate on basis that grandfather had not been employed in or with federal public administration at time of father's birth. Father successfully applied for judicial review with both parties in agreement that citizenship judge fettered her discretion, and only dispute was remedy. Application judge found that declaration that father sought, that A was Canadian citizen under s. 3 of Act, was not one of fact but one of law and within authority of Federal Court to grant. Only logical conclusion held was that A's grandfather was in employment of CIDA and was Crown servant. Application judge further found that exceptional remedy of directed verdict was warranted, and declared that A was Canadian citizen but declined to certify question of general importance. Minister of Citizenship and Immigration appealed. Appeal quashed. Federal Court had authority to issue declaratory relief in deciding application for judicial review. Law of judicial review recognized power on part of reviewing court to substitute its view for that of administrative decision-maker provided certain conditions were met. At minimum, substitution of court's views for those of administrative decision-maker could be achieved indirectly or in effect through remedies that Federal Courts Act provided. In exceptional circumstances there was power of direct substitution where court itself granted relief sought from administrative decision-maker.

Canada (Citizenship and Immigration) v. Tennant (2019), 2019 CarswellNat 3390, 2019 FCA 206, Wyman W. Webb J.A., D.G. Near J.A., and J.B. Laskin J.A. (F.C.A.).

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