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CIVIL PROCEDURE - Courts - Provincial and territorial courts - Inherent jurisdiction

Monday, February 26, 2018 @ 8:31 AM  

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Application to correct the applicant’s birth date to reflect her true date of birth. The applicant was born in Ethiopia but fled to Canada under an assumed identity after her family was killed in the civil war. The applicant was registered in Canada under her assumed identity and had since legally changed her name to reflect her true name. The applicant’s true birth date corresponded to August 14, 1977 on the Gregorian calendar. The applicant’s birth date was registered in Canada as that of the person whose identity she assumed. The registration also did not account for the differences in the Ethiopian and Gregorian calendars, therefore the birth date registered indicated the applicant was eight years older than she actually was. The applicant worked in importing and required an Ethiopian origin ID card to conduct business as a local there, for which she needed her Canadian identification records to match her birth certificate. The applicant had made numerous inquiries to government organizations in an attempt to amend her birthdate on her Canadian citizenship certificate and was told a court order was required. The applicant adduced evidence to show she had no criminal record. Immigration, Refugees and Citizenship Canada did not take a position on the application. It was the department's policy to consider a court order legally amending a date of birth when reviewing a request to amend records.

HELD: Application allowed. The Vital Statistics Act provided a mechanism to amend birthdates of persons born in Ontario, but there was no statutory authority to change the birth date of a Canadian citizen born outside of Canada. The applicant’s unique circumstances gave rise to a functional gap. Given the applicant was now a Canadian citizen and the error was on her Canadian identification, a Canadian court should provide the remedy. It was appropriate and just and equitable for the Superior Court of Justice to exercise its inherent jurisdiction to fill the gap. There was a live issue to be resolved respecting the applicant’s documents, therefore a declaration would be useful. A declaration was made as to the applicant’s correct birth date, and government authorities were directed to use the correct date on any documents subsequently issued.

Hagos (Re), [2018] O.J. No. 185, Ontario Superior Court of Justice, C.D. Braid J., January 16, 2018. Digest No. TLD-February262018003