T-2462-85
In re the Citizenship Act and in re Mary Frances
Naber-Sykes
INDEXED AS: RE NABER-SYKES
Trial Division, Walsh J.—Calgary, May 9; Van-
couver, May 22, 1986.
Citizenship — Residency requirements — Appeal from Citi
zenship Judge's denial of citizenship on ground failing to
satisfy residency requirements — Appellant studying in
Canada number of years, becoming landed immigrant in
December, 1984 — Act s. 5(1)(b) requiring three years' resi
dence during four years preceding application date — Appel
lant short 386 days — Appellant American citizen married to
Canadian, completing Bar admission course but prevented
from practicing until obtaining citizenship — Citizenship
Judge considering hardship not sufficiently special or unusual
to justify recommendation for exercise of ministerial discre
tion under s. 5(4) — Bureaucratic directives limiting making
of recommendation unacceptable and usurpation of judges'
functions — Whether Federal Court can review discretion
given Judge to make recommendation or limited to finding
citizenship should or should not be recommended — Authority
for proposition Court having power to do what is right to
correct decisions Citizenship Judges required to take — Issue
unsettled — No determination by higher court as no appeal —
Liberal interpretation of "special and unusual hardship" war
ranted — Further delay in granting citizenship constituting
special and unusual hardship — Appeal maintained —
Recommendation made pursuant to Act s. 5(4) — Citizenship
Act, S.C. 1974-75-76, c. 108, ss. 5(1)(b) (as am. by S.C.
1976-77, c. 52, s. 128), (3),(4), 13 (as am. by S.C. 1984, c. 40,
s. 15), 21 — Federal Court Rules, C.R.C., c. 663, R. 912.
Judges and Courts — Citizenship Judges — Bureaucratic
directives as to circumstances in which statutory provision for
recommendation to Governor in Council to be applied —
Federal Court Judge criticizing Minister for abuse of execu
tive and administrative functions in 1979 judgment — Unac
ceptable if situation unchanged — Citizenship Judges to be
guided only by wording of legislation, Federal Court decisions
and own judgment in application of facts.
This is an appeal from the decision of a Citizenship Judge
dismissing an application for citizenship on the ground that the
appellant had not satisfied the residency requirements as set
out in paragraph 5(1)(b) of the Citizenship Act. The appellant
had studied in Canada for some time but did not become a
landed immigrant until December, 1984. Under the Act, the
appellant was required to have accumulated three years of
residence during the four year period preceding her request for
citizenship. Of the 1095 days of residency required, the appel
lant was short 386 days. In refusing to grant her citizenship,
the Judge declined to recommend the application of subsection
5(4) which provides that, in cases of special or unusual hard
ship, the Governor in Council may direct the Minister to grant
citizenship.
The appellant is an American citizen now married to a
Canadian. She came to Canada in 1976 to pursue her studies in
Toronto. She attended the University of Toronto, earning a
Bachelor of Arts degree in 1980. The appellant then entered
law school at the same University and was advised that she
would have to obtain Canadian citizenship to practice in
Canada. Following graduation in 1983, she articled in Toronto
and was subsequently hired by a Calgary law firm. She com
pleted the Bar admission course in Alberta and would normally
have been admitted to the Bar in August, 1985. A litigation
specialist, she could not appear in court but only sit with firm
associates conducting trials. A partner in the Calgary firm
testified that the appellant, while very capable, would never be
able to make up the years lost due to the delay in obtaining
citizenship and would always be a year or two behind her
contemporaries. The witness said that he considered this to be
an unusual hardship. The Citizenship Judge had expressed the
view that the hardship was not sufficiently special or unusual to
justify making a recommendation pursuant to subsection 5(4).
Held, the appeal should be allowed and a recommendation
made to the Governor in Council that the Minister be directed
to grant citizenship.
Citizenship Judges invariably include in their decisions a
standard clause stating that they have given consideration to
the request for citizenship and decided against recommending
to the Minister an exercise of his discretion under subsection
5(4). It would appear that the Act is complied with more as a
matter of form than as a matter requiring a judicial inquiry. In
Re Mitha, Cattanach J. held that it is for the Citizenship Judge
to determine what constitutes "special and unusual hardship"
within the meaning of the Act. His Lordship added that for the
Minister to issue guidelines as to the interpretation of the
section was unwarranted and an usurpation of the functions of
the Citizenship Judge. That was a strong statement but it may
be that Citizenship Judges continue to function under bureau
cratic directives as to the rare circumstances in which they
should apply subsection 5(4). If such is the case, this is entirely
unacceptable. In reaching his decision, the Citizenship Judge
should be guided by the wording of the Act, case law created on
appeals and the facts of the case.
There also arises the question of whether, on an appeal to the
Federal Court, the Court has the jurisdiction to review the
Citizenship Judge's failure to make a recommendation or
whether its jurisdiction is limited to finding that citizenship
"should or should not be recommended". Thurlow A.C.J. (as
he then was) held in Re Salon that the Act contains no
definition of the powers exercisable by the Court, only that
final decisions are not subject to appeal. The inference to be
drawn, having regard to the lack of definition and to the fact
that the Court is a superior Court of record, is that the Court is
empowered to correct any decision the Citizenship Judge is
required to make in determining an application for citizenship.
Thus, the Court has both the duty and the authority to correct,
if necessary, the Judge's decision not to recommend the exer
cise of ministerial discretion. Conflicting case law states that
there exists no statutory authority giving the Court jurisdiction
to review the Citizenship Judge's refusal to make a recommen
dation under subsection 5(4). If the Judge refuses to make a
recommendation, there remains the possibility of seeking
executive action without the intervention of the Citizenship
Judge. However, this question will remain unsettled unless the
statute is amended as there is no appeal in citizenship matters
from a decision of the Federal Court. In the case at bar, no
useful purpose can be served by delaying the application of
such a desirable citizen. Any further delay would continue to
operate hardship for her. Under the circumstances, a liberal
interpretation of "special and unusual hardship" is warranted.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Salon (1978), 88 D.L.R. (3d) 238 (F.C.T.D.); Re
Maefs (1980), 110 D.L.R. (3d) 697 (F.C.T.D.); Re
Turcan, [1978] 3 A.C.W.S. 291 (F.C.T.D.); Re Mitha,
[1979] 3 A.C.W.S. 731 (F.C.T.D.); In re Kleifges and in
re Citizenship Act, [1978] 1 F.C. 734; 84 D.L.R. (3d)
183 (T.D.).
CONSIDERED:
In re Albers and in re Citizenship Act, judgment dated
May 11, 1978, Federal Court, Trial Division, T-75-78,
not reported; In re Akins and in re the Citizenship Act,
[1978] 1 F.C. 757; 87 D.L.R. (3d) 93 (T.D.); Re Zakow-
ski, judgment dated February 28, 1986, Federal Court,
Trial Division, T-2054-85, not yet reported; In re Amen-
dola and in re Citizenship Act, judgment dated April 7,
1982, Federal Court, Trial Division, T-177-82, not
reported; Re Conroy (1979), 99 D.L.R. (3d) 642
(F.C.T.D.); Re Anquist (1984), [1985] 1 W.W.R. 562
(F.C.T.D.).
COUNSEL:
J. R. Smith, Q.C., for appellant.
William D. McFetridge, amicus curiae.
SOLICITORS:
MacKimmie Matthews, Calgary, for appel
lant.
MacLeod Lyle Smith McManus, Calgary,
amicus curiae.
The following are the reasons for decision ren
dered in English by
WALSH J.: In this case the Citizenship Judge
dismissed the appellant's application for citizen
ship by decision communicated to her on October
11, 1985. In doing so he found that she had
satisfied the requirements of the Act [Citizenship
Act, S.C. 1974-75-76, c. 108], except for that of
residency pursuant to paragraph 5(1)(b) [as am.
by S.C. 1976-77, c. 52, s. 128] of the Act.
While the applicant had studied in Canada for
some time, she only became a landed immigrant
on the 29th of December 1984. Her application for
citizenship was made on April 15, 1985 and pursu
ant to paragraph 5(1)(b) of the Act she was
required to have accumulated three years of resi
dence in Canada in the four years preceding the
date of the application, that is to say since April
15, 1981. She was entitled to one day credit for
each day since her admission for permanent resi
dence and one-half day for each day she was in
Canada prior to such admission but within the
four year period. On this basis she was calculated
to have 677 half days to her credit and 108 full
days from which were deducted one half of 153
days for absences from Canada before she
acquired landed immigrant status or 76 days, leav
ing her with a total credit of 709 days in a three
year period for which 1095 days were required so
she was short 386 days. There is no dispute about
this calculation. It would also appear that were she
to re-apply now, she would have the required
number of days to fulfill the residence requirement
of the Act. The Citizenship Judge also declined to
recommend the application of subsection 5(4) of
the Act which provides that in order to alleviate
cases of special and unusual hardship or to reward
services of an exceptional value for Canada, the
Governor in Council may direct the Minister to
grant citizenship. If such a direction is made, the
Minister shall forthwith grant it to the person
named. The Citizenship Judge is required in all
cases where citizenship is refused, to consider
whether he should make such a recommendation
and in this case he states that he examined the
jurisprudence that was submitted to him and that
there does not appear to be any unusual and
special circumstances that would justify him to
make such a recommendation, the cases to which
he had been referred not being cases in which the
three year residence requirement was involved.
Neither is he willing to make a recommendation
pursuant to subsection 5(3) on compassionate
grounds, and this section is not an issue in the
present appeal.
The facts in the present case are somewhat
unusual in that it would be difficult to find an
applicant more completely qualified to make a
desirable citizen or for whom no useful purpose
would be served by delaying the grant of
citizenship.
The applicant is an American citizen now mar
ried to a Canadian citizen. She came to Canada in
September of 1976 to continue her education in
Toronto and has resided in Canada ever since save
for absences to return home on holidays. She
attended the University of Toronto where she
received her Bachelor of Arts degree in May,
1980, during the course of her studies having spent
a year in France as an au pair girl in order to learn
French, in which language she became fluent. She
was then admitted to the University of Toronto to
study law and had been informed at that time that
she would have to have citizenship in order to
practice law in Canada. She worked for the United
States government in the summer of 1981 and
1982 as an immigration officer at the Toronto
airport and graduated in law from the University
of Toronto in 1983. She was indentured to the law
firm of Osler, Hoskin and Harcourt in Toronto.
Subsequently she was engaged by the law firm of
MacKimmie Matthews in Calgary, another large
and prestigious law firm. She completed her Bar
admission course in Alberta and normally would
have been admitted to the Bar in August of 1985
but cannot practice because of lack of citizenship.
She specializes in litigation, and can merely sit
with one of the associates of the firm conducting
the trial, ungowned, during hearings, whereas her
contemporaries admitted to the firm in the same
year can actually conduct trials themselves. She
claims this constitutes an unusual hardship. She
has been active in the Calgary community in
connection with the Calgary Legal Guidance
Clinic which provides advice for people who do not
qualify for legal aid but cannot afford lawyers. She
is permitted to give such advice but cannot follow
up if the matter comes to court. During her college
years in Toronto, she was a member of the Jessup
Cup law debating team which won the Canadian
moot court championship competing with teams
from law schools throughout Canada and subse
quently was runner-up in the world competition.
The senior partners in the MacKimmie Matthews
law firm think so highly of her that they are
retaining her in their employ even though she
cannot be admitted to the Bar of Alberta until
acquiring citizenship. Stephen Hart Wood, Q.C.
senior partner and former bencher of the Law
Society who was formerly the managing partner of
the law firm testified that they wish to maintain
her association with them and that there is no
reason for delaying her immediate admission to
the Bar of Alberta save for the citizenship require
ment. Alan Fradsham a partner of the firm who
supervises the work of their law students testified
that he assessed her very highly for her ability for
litigation, hard work, professional dedication and
analytical mind but that she will never be able to
make up the lost years and will always be a year or
two behind her contemporaries who were immedi-
ately admitted on completing their law course,
which he considers to be an unusual hardship.
The Citizenship Judge expressed a valid view
point when he did not consider that the hardship
was sufficiently special or unusual to justify a
recommendation by him pursuant to subsection
5(4). Judges at all levels do not necessarily agree
or there would be no appeals nor dissenting judges
in appellate courts. If, on this appeal, I reach a
different conclusion from him it should not be
considered as a criticism if I decide to make the
recommendation. Comments made with respect to
the administrative process, however, in at least two
previous judgments are of considerable signifi
cance. In the case of Re Turcan (No. T-3202-78)
a judgment dated October 6, 1978 summarized in
[1978] 3 A.C.W.S. 291 (F.C.T.D.) I had occasion
to state:
I cannot fail to remark on the fact that it is the almost
invariable practice of Citizenship Judges in advising the appli
cant of the decision to include a paragraph stating:
I have considered and decided against recommending to
the Minister an exercise of his discretion under subsection
5(4) of the Act.
In fact I have yet to encounter a case where a recommendation
has been made. The question of what constitutes "special and
unusual hardship" is of course a subjective one and Citizenship
Judges, Judges of this Court, the Minister, or the Governor in
Council might well have differing opinions on it. Certainly the
mere fact of not having citizenship or of encountering further
delays before it can be acquired is not of itself a matter of
"special and unusual hardship", but in cases where as a conse
quence of this delay families will be broken up, employment
lost, professional qualifications and special abilities wasted, and
the country deprived of desirable and highly qualified citizens,
then, upon the refusal of the application because of the neces
sarily strict interpretation of the residential requirements of the
Act when they cannot be complied with due to circumstances
beyond the control of the applicant, it would seem to be
appropriate for the Judge to recommend to the Minister the
intervention of the Governor in Council, and it is difficult to
understand why even in the most clear cut and meritorious case
a Citizenship Judge never makes such a recommendation
although including in each decision a standard clause stating
that he has given the matter consideration as he is required to
do under section 14 of the Act. While it may be the fault of the
applicant who frequently does not submit before the Citizen
ship Judge all the evidence and information which he eventual
ly submits in the appeal as to why the recommendation should
be made, nevertheless I am forced to the conclusion that section
14 of the Act is complied with more as a matter of form than as
a matter requiring a careful inquiry made in a judicial manner
as to whether a recommendation under subsection 5(4) should
be made or not. I would not wish these remarks to be construed
as a criticism of the Citizenship Judge in the present case or
Citizenship Judges generally, but rather of what appears to
have become a matter of policy which I do not believe complies
with the spirit or intention of the Act. This strengthens my view
that on an appeal, and with complete evidence before him, a
Judge of this Court should have the right to make such a
recommendation if he deems it advisable.
In the case of Re Mitha, summarized in [1979]
3 A.C.W.S. 731 (F.C.T.D.) (No. T-4832-78) judg
ment dated June 1, 1979, Justice Cattanach at
pages 22 to 24 stated:
What is a case of "special and unusual hardship" or a service
"of an exceptional value to Canada" is a question of fact for
the Citizenship Judge to decide.
By virtue of section 26, the Governor in Council may make
regulations on topics lettered from (a) to (1).
Nowhere in that section is there a topic which permits of a
regulation being made as to what constitutes "a special and
unusual hardship" or service "of an exceptional value to
Canada".
Accordingly the Citizenship Regulations made pursuant to
section 26 of the Act could not and do not purport to legislate
on a subject matter which is not authorized to be delegated by
that section.
That being so the Citizenship Judge is restricted in reaching
a decision to the language of subsection 5(4). The words "a
special and unusual hardship" or service "of an exceptional
value to Canada" are not technical words neither do they relate
to any art or science from which it follows that those words
should be understood in the same way as they are understood in
common language.
It is for the Citizenship Judge to decide when a case before
that Judge falls within the purview of the section and in making
that decision the exclusive guidelines are the language of
subsection 5(4) and any jurisprudence thereon and nothing else.
For the Minister or any of his employees, whether authorized
by him or not, to purport to issue guidelines, information and
advice as to the interpretation of the section is wholly unwar
ranted. More than being unwarranted it is an abuse of the
executive and administrative functions of the Minister and his
employees. It is an assumption of the judicial function in that it
purports to interpret the meaning of a statute.
Furthermore it is the usurpation of the functions of the
Citizenship Judge. If this is countenanced then there is no need
for the appointment of Citizenship Judges, with the judicial
trappings with which they are surrounded, when they would not
in fact exercise judicial independence but follow the direction of
departmental employees. The function of the Citizenship
Judges might as well be performed directly by those employees
as the Citizenship Judges in actuality become like employees or
puppets of departmental employees despite the visual sem
blances and trappings of a court.
This is a very strong statement, but I am given
to understand that Citizenship Judges may still be
operating under some bureaucratic directives or
recommendations setting out the rare circum
stances in which they should apply subsection 5(4)
of the Act to make a recommendation. If this is
the case, this is entirely unacceptable. In making
the decision, they should be guided solely by the
wording of the Act, jurisprudence created by
Judges of this Court on appeals and their own
good judgment in the application of the facts.
They are in no way subservient to the Minister and
certainly even less so to any directions which may
be given to them by employees of the Ministry
even to the Deputy Minister level.
Whether or not their recommendations if made
are adopted is another matter of which the Court
can have no knowledge but it is significant that a
recommendation, if made, is not made to the
Minister but to the Governor in Council who will
then direct the Minister to grant citizenship if they
deem it advisable. While it is true that this may be
more a matter of form than of practice since the
Governor in Council would most likely never have
the matter brought before them for consideration
unless the Minister, or what is more likely the
Deputy Minister or someone else in the Depart
ment at a lower level who has been delegated by
the Minister pursuant to section 21 of the Act
brings the matter to the attention of the Governor
in Council. There is, nevertheless, an important
legal distinction in that neither the Citizenship
Judge nor a Judge of this Court sitting in appeal
should be put in the position of making a recom
mendation to a minister which can be over-ruled
whereas it is quite appropriate to make a recom
mendation to the Governor in Council that discre
tion should be exercised.
I turn now to the question of whether on an
appeal to the Federal Court pursuant to section 13
of the Act the Court may review the failure of the
Citizenship Judge to make a recommendation pur
suant to subsection 5(4) or whether the appeal
must be limited only to finding that citizenship
should or should not be recommended. This has
been a highly controversial area in which the
Judges of this Court have disagreed. I have
already referred to the Turcan judgment in which
I found that this decision could be reviewed and a
recommendation made by the Federal Court. I
reached a similar conclusion, not surprisingly, in
the case of In re Kleifges and in re Citizenship
Act, [1978] 1 F.C. 734; 84 D.L.R. (3d) 183
(T.D.). Reference has already been made to the
judgment of Justice Cattanach in Mitha. In the
case of Re Salon (1978), 88 D.L.R. (3d) 238
(F.C.T.D.), a judgment dated June 28, 1978,
Associate Chief Justice Thurlow, as he then was,
in the Trial Division recognized that the appellant
could not meet the residential requirements for
citizenship. He nevertheless made a recommenda
tion pursuant to subsection 5(4). Reference was
made to the cases of In re Albers and in re
Citizenship Act, judgment dated May 11, 1978,
Federal Court, Trial Division, T-75-78, not report
ed and In re Akins and in re the Citizenship Act,
now reported in [1978] 1 F.C. 757; 87 D.L.R. (3d)
93 (T.D.), in which Justice Addy reached the
conclusion that the recommendation was not sub
ject to review, but Associate Chief Justice Thurlow
states that he prefers the views expressed by
myself and Justice Dubé in other cases. On pages
241-242 of the judgment he states:
Unlike most statutes which confer on parties a right of
appeal to a Court, this Act contains no definition of the powers
exercisable by the Court when an appeal is before it. All that is
to be found as to the decision of the Court is in s-s. 13(6) which
makes the decision of the Court final and not subject to any
further appeal. As Parliament must have intended the appeal to
be an effective means of obtaining relief, it is not to be inferred
that the intention was that the Court should be powerless, and
it appears to me that the inference to be drawn, having regard
both to the absence of such a definition of powers as well as to
the fact that the appeal is to a superior Court of record, is that
the Court is vested with full power to do all that is right and
just according to the law and for that purpose to do or to
correct anything that the Judge from whose decision the appeal
is taken was empowered or required to do in reaching his
decision. One of the things the Citizenship Judge must do
before declining to approve an application is consider whether
to make a recommendation for the exercise of the powers
vested in the Minister and the Governor in Council by s-ss. 5(3)
and (4) respectively and, if he decides to make such a recom
mendation, he must forward it to the Minister and await the
decision of the appropriate authority thereon. In my opinion, on
an appeal from a decision refusing approval of an application
after declining to make a recommendation, this Court has both
the authority and the duty to consider and to correct, if
necessary, both the decision of the Citizenship Judge on wheth
er the statutory requirements have been met and the decision
not to recommend the exercise of the powers of the Minister or
the Governor in Council under s-ss. 5(3) and (4) respectively.
In such a situation, the latter is as much a basis of his decision
not to approve as is his decision with respect to the statutory
qualifications.
After reviewing the particular facts of that case
which of course are different from those in the
present appeal, he concludes at page 243:
In the particular circumstances, the denial to him of citizen
ship at this time can serve no public or other good. It can only
serve to prejudice his medical career and to produce frustration
and suffering both for him and his family while he is required
to wait for another year or thereabouts to meet the residence
requirement.
The case of Re Maefs (1980), 110 D.L.R. (3d)
697 (F.C.T.D.) deals with facts substantially simi
lar to the present appeal. The headnote reads as
follows:
Where a Citizenship Judge has found that an applicant for
citizenship has failed to comply with the residence require
ments of the Citizenship Act, 1974-75-76 (Can.), c. 108, but
declines to recommend to the Governor in Council that he, in
his discretion, direct the Minister to grant citizenship to a
person in a case of unusual hardship under s. 5(4) of the Act, it
is within the jurisdiction of the Federal Court on appeal to
make such a recommendation. The Court should do so where
the appellant has obtained an LL.B. degree from a Canadian
university and has fulfilled the requirements for entry to the
Bar, but was unable to apply for landed immigrant status
because he entered Canada under a student visa, where it is
shown that he was an excellent student and will be an outstand
ing member of the Bar and citizen, and where failure to grant
him citizenship will cause him undue hardship.
Grant D.J., in making the recommendation
stated at page 701:
It is becoming more difficult each year for graduating law
students to secure positions as a solicitor or barrister in legal
firms because of the number graduating each year. He has now
been living in Canada since August of 1974. He eventually will
become a citizen and practise his profession here. There is no
conceivable advantage to any one in delaying such opportunity
to him. To delay the grant of citizenship will in my opinion
create a great hardship to him.
In deciding that the recommendation should be
made, he referred to the Salon, Turcan and Mitha
cases (supra).
On the other side of the controversy, we have
the judgments of Justice Addy in Akins and
Albers already referred to and in Re Zakowski,
judgment dated February 28, 1986, Federal Court,
Trial Division, T-2054-85, not yet reported in
which he stated:
The decision of the Citizenship Judge to not recommend that
this condition be waived is not appealable to this Court.
In particular in the Akins case he had pointed
out that the provisions of Rule 912 of the Federal
Court Rules [C.R.C., c. 663] setting out the
procedure for hearing of citizenship appeals which
states that an appeal should take the form of a new
hearing can have no effect in that it would only
apply if appellate jurisdiction may exist which he
concludes is not the case as the appeal pursuant to
subsection 13(5) of the Act is, by virtue of subsec
tion 13(2) only on the issue of whether the Citizen
ship Judge should approve or not approve the
application. He also points out that in the Kleifges
case (supra) the comment on the right of the
Court on appeal to consider the exercise of discre
tion under subsection 5(4) of the Act, was obiter
since it had found that the appeal should be grant
ed on other grounds in any event.
Justice Cattanach in a judgment in the case of
In re Amendola and in re Citizenship Act, judg
ment dated April 7, 1982, Federal Court, Trial
Division, T-177-82, not reported, apparently
changing his opinion in the Mitha case, adopted
the decision of Justice Addy in Akins, stating that
if the Citizenship Judge declines to make a recom
mendation there is no impediment to the appellant
directing a request for executive action of the
Minister without the intervention of the Citizen
ship Judge. He recommended as he had in the case
of Re Conroy (1979), 99 D.L.R. (3d) 642
(F.C.T.D.) that a court of justice should not enter
tain any opinion with respect to which a decision
would eventually be made on the ground of politi
cal expediency.
Recently Justice Muldoon in the case of Re
Anquist (1984), [1985] 1 W.W.R. 562 (F.C.T.D.)
reached the same conclusion.
While I have great respect for the opinions
expressed by my learned colleagues who feel that
the Federal Court should not make the recommen
dation on an appeal from a decision of the Citizen
ship Judge refusing to do so, the question is one
which must be considered as unsettled and will so
remain unless the law is amended since there is no
appeal from a decision of the Federal Court in
citizenship matters, so no definitive determination
to settle the controversy can be made by a court at
a higher level. Not only would I be inconsistent if I
did not follow my own earlier decisions in the
matter, but I also adopt the conclusions of Associ
ate Chief Justice Thurlow, as he then was, in the
Salon case (supra) and of Deputy Justice Grant in
the Maefs case. In the particular circumstances of
this case not only is it evident that the appellant
would make a most desirable citizen, but she is
prevented from fulfilling the career for which she
has prepared herself by the rigours of the residen
tial requirement and I am satisfied that any fur
ther delay will continue to operate a hardship for
her. While it remains a matter of opinion as to
whether this is a case of "special and unusual
hardship", I am disposed to grant a liberal inter
pretation of this and find that in her situation, the
hardship can be considered as being special and
unusual.
The appellant's appeal is therefore maintained
to the extent of making a recommendation to the
Governor in Council pursuant to subsection (4) of
section 5 of the Citizenship Act to exercise discre
tion to direct the Minister to grant citizenship to
the appellant.
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.