Date: 20000530
Docket: A-522-98
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
KENNETH M. NARVEY
Appellant
(moving party in the Federal Court Trial Division)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and VLADIMIR KATRIUK
Respondents
(respondents to a motion in the Federal Court Trial Division)
Dealt with in writing without appearance of parties
JUDGMENT delivered at Ottawa, Ontario, Tuesday, May 30, 2000
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 20000530
Docket: A-522-98
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
KENNETH M. NARVEY
Appellant
(moving party in the Federal Court Trial Division)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and VLADIMIR KATRIUK
Respondents
(respondents to a motion in the Federal Court Trial Division)
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] The appellant Mr. Narvey describes himself as a Canadian Jewish legal researcher, activist and litigator who works on his own account and in association with various Canadian Jewish organizations on matters within the mandate of the Coalition of Concerned Congregations on the Law Relating to War Crimes and Crimes Against Humanity Including Those of the Holocaust.
[2] Mr. Narvey, representing himself, sought to intervene in the case of Canada (Minister of Citizenship and Immigration) v. Katriuk (T-2408-96), a reference under section 18 of the Citizenship Act. The purpose of the reference was to determine whether Mr. Katriuk had obtained his Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances.
[3] The Citizenship Act reference was heard over 16 days between May and July, 1998. Mr. Narvey attended the hearing and formed the opinion that the Trial Judge was biased. He wished to intervene so that he could argue that the Trial Judge ought to recuse himself. Mr. Narvey's application to intervene was heard on September 11, 1998. Counsel for the Minister and for Mr. Katriuk indicated that if Mr. Narvey were allowed to intervene they would oppose his submissions on the question of bias, but counsel for the Minister argued that Mr. Katriuk should be allowed to intervene.
[4] Mr. Narvey's application to intervene was dismissed by the Trial Judge on September 17, 1998: [1998] F.C.J. No. 1330 (QL). His reasons for decision read in part as follows:
| I have considered the arguments and the jurisprudence submitted by Mr. Narvey and the parties and I am of the view that leave should not be granted to Mr. Narvey. I am of the opinion that the issue which Mr. Narvey wishes to raise is one that can only be raised by the parties. Only then should a non-party be allowed to intervene and participate in the debate. I wish to add that had the Minister or Mr. Katriuk raised the issue, I would, in those circumstances, have allowed Mr. Narvey to intervene. |
[5] On September 18, 1998 Mr. Narvey commenced an appeal against the decision refusing him leave to intervene. By November 6, 1998, Mr. Narvey had completed, served and filed an appeal book and a memorandum of fact and law. Hoping for a reversal of the decision denying him leave to intervene before the Trial Judge rendered his final decision on the reference, he applied in this Court for an expedited hearing of his appeal and for a stay of the proceedings in the Trial Division. Those applications were denied on January 7, 1999: [1999] F.C.J. No. 25 (QL). At that point, the Trial Judge had not yet rendered his decision on the reference.
[6] On January 15, 1999, a memorandum of fact and law prepared on behalf of the Minister of Citizenship and Immigration was served and filed, and the time permitted for Mr. Katriuk to file such a memorandum had long since expired. The only step that was then required to bring this appeal to a hearing was the filing of a requisition for hearing. Mr. Narvey should have done that within 20 days after January 15, 1999.
[7] However, Mr. Narvey did not take that final step in his appeal, and on January 29, 1999, the Trial Judge issued a declaration that Mr. Katriuk had obtained his Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances: [1999] F.C.J. No. 90 (QL). An appeal of that decision was denied by the Federal Court of Appeal on December 7, 1999: [1999] F.C.J. No. 1884 (QL). On May 11, 2000, the Supreme Court of Canada denied leave to appeal: [2000] S.C.C.A. No. 88 (QL).
[8] Mr. Narvey took no further steps to bring this appeal to a hearing. On March 21, 2000, a notice of status review was issued requiring Mr. Narvey to show cause why his appeal should not be dismissed for delay. In response to that notice, Mr. Narvey has acknowledged that his perception of bias on the part of the Trial Judge was mistaken, and he no longer wishes to pursue this appeal on the grounds as originally stated.
[9] However, he seeks leave to submit an amended notice of appeal in which the grounds are limited to the question of whether an application for intervention should be denied because the sole purpose of the intervention is to raise an allegation of bias that is not supported by a party to the litigation. He is concerned that unless this appeal is allowed to continue the decision of the Trial Judge will "acquire a quality of res judicata" against him, even if mistaken.
[10] No submissions have been made on behalf of Mr. Katriuk, except a letter from his counsel indicating that he would be seeking costs if the appeal is dismissed.
[11] Submissions have been made on behalf of the Minister of Citizenship and Immigration. Counsel for the Minister agrees that the appeal should be dismissed because Mr. Narvey has offered no explanation for his failure to take any steps to bring his appeal to a hearing between January of 1999 and March of 2000, when the notice of status review was issued.
[12] Mr. Narvey replies that the delay by this Court in issuing the notice of status review excuses his inaction between January of 1999 and March of 2000. That is not correct. The notice of status review is intended to elicit an explanation for the 15 month period of inaction on the part of Mr. Narvey, as well as submissions as to whether or not the appeal should be allowed to proceed despite the delay. The fact that the notice of status review could have been issued earlier than March of 2000 is irrelevant.
[13] Mr. Narvey also argues that it would have been inconsiderate of him to take any steps in this appeal pending the determination of Mr. Katriuk's appeal on the merits and his application for leave to appeal to the Supreme Court of Canada. I do not accept that as a valid reason for delaying the filing of a requisition for hearing.
[14] Counsel for the Minister argues that Mr. Narvey's application for intervention is now moot and should not be heard. In my view there is much force in this submission. The decision of the Trial Judge on the Citizenship Act reference is now final. The fact that Mr. Narvey's application for intervention was denied is no longer relevant to the substantive issues that were before the Trial Judge. The outcome of Mr. Narvey's appeal can have no practical consequences in so far as those issues are concerned.
[15] Nor am I persuaded that this appeal should be allowed to continue merely because of Mr. Narvey's concerns about the possible application of the doctrine of res judicata in future applications for intervention.
[16] I am not satisfied that this appeal should continue. The appeal should be dismissed with costs.
Karen R. Sharlow
J.A.
"I agree
Marshall Rothstein J.A."
"I agree
Brian Malone J.A."